The Corner

The Patriot Act and the Tea Party

Sorry for the radio silence. I’ve been on the road for most of the last 10 days.

It’s old news at this point that a defection by several Tea Party Republicans to the side of leftwing Democrats resulted in the defeat of reauthorization for three Patriot Act provisions that are soon scheduled to expire. The story may be a case of making a mole hill into a mountain: The reauthorization was brought up on a streamlined procedure that required a supermajority (two-thirds) for passage and it would have prevailed easily on a simple-majority vote; plus, many Tea Partiers (including faves like Michele Bachmann and Allen West) voted in favor. Still, as a small government guy who usually agrees with Tea Party sentiments, I can only conclude that the defectors are either badly misinformed or not thinking this through.

It is a myth perpetuated by the Bush-deranged media that the Patriot Act was a dramatic expansion of federal power and that it unduly infringed on American civil liberties. For the most part, Patriot simply endowed the national security side of the FBI’s house with the same powers that had long been exercised by the law-enforcement side. Moreover, Patriot provisions often provided more protection and court oversight than existing law-enforcement procedures.

One of the three provisions in the reauthorization is a good example: the business records provision (which opponents demagogued as the “library records” provision even though library records are not mentioned in it — though they are covered in its sweep). In a terrorism investigation, Patriot’s business records law allows national security agents to go to a court for authorization to compel the production of all sorts of records that might be relevant to a terrorism investigation. By contrast, when I was a prosecutor investigating terrorism as a law-enforcement issue, and I wanted to subpoena exactly the same kinds of information, including library records, I simply reached into my desk drawer for a subpoena, wrote up my demand, and handed it to an FBI agent to serve on the business (or library) in questio. Contrary to Patriot Act procedures, I did not have to apply to a court for permission, and I did not have to certify that the information I was seeking was relevant to some legitimate investigation … and if the documents demanded were not produced, I could have the custodian of the records jailed for contempt.

Like business records, the two other Patriot provisions at issue mirror the criminal law. Roving wiretaps can only be used with the approval of a judge, and if you are going to target a terrorist or other foreign agent for electronic surveillance at all, it is downright dumb not to get a roving tap because these guys are sophisticated actors who change their phones a lot to defeat surveillance. If we didn’t have roving taps, investigators would have to go back to court and get a new eavesdropping order every time that happened. For that reason, law-enforcement agents doing run-of-the-mill drug investigations have had roving tap authority for about 30 years.

The “lone wolf” provision enables national security agents to surveil an operative who appears to be engaged in international terrorism but as to whom there is currently insufficient evidence of his connection to a known foreign terrorist organization — a pattern that criminal investigators often probe. (Agents frequently learn about what someone is doing before they can nail down whom he is doing it with). 

Here is what I don’t understand about the GOP defectors’ position. It’s not as if refusing to reauthorize the collection of business records, roving wiretaps, and the surveillance of lone wolf terrorists is going to result in any reduction of federal power. It would simply result in a shift from national security law to criminal law as the source of authority to use exactly the same investigative techniques. All Congress would accomplish would be to revert us (at least insofar as these tactics are concerned) to the September 10 approach under which terrorism was considered a mere crime to be addressed by law-enforcement protocols. Effectively, we would be abandoning the post-September 11 approach that has staved off attack by elevating intelligence gathering and prevention over evidence collection and prosecution (usually after people have already been killed). But it’s not like the federal government’s power to use these tactics would be neutered.

Moreover, I’ve never understood the Tea Party to stand for the repeal of all federal power. It just wants Leviathan out of the zillion things that should be the purview of either individual choice or, at most, state or local regulation. There’s plenty to do on that score when it comes to federal police power — there are way too many federal crimes and way too much intrusion by federal investigative agencies. The Tea Party GOP members would be doing a real service if, for example, they studied the work Ed Meese has been doing at Heritage on the federalization of what the framers intended to be the prosecutorial functions of the sovereign states.

But national security is one of the few necessary federal obligations. Protecting the homeland from attack by hostile alien forces is the first responsibility of the central government. If you did away with everything else the Justice Department and the FBI do — got them out of securities regulation, healthcare fraud, organized crime, narcotics enforcement, etc. — you would still want them to protect the United States from attack by foreign powers, including terrorist organizations. You would still want them scouring records for patterns about what al Qaeda might hit next, tapping the phones of the next Mohamed Atta, and surveilling the next Zacarias Moussaoui until they could find out who he was working for.

Voting against the reauthorization of these essential counterterrorism tools is not striking a blow for limited government. It’s mindless preening — the kind that makes you wonder if some of the people screaming about “first principles” understand what the first principles are.


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