The Corner

Re: Patriot Blues

Andrew, there you go again. You like the Patriot Act “despite its flaws,” which you’d apparently prefer not to describe. It should just be re-sunsetted rather than made permanent because it was enacted in a time of crisis and “it seems very modest indeed” to attach a new sunset — a new sunset that, you neglect to mention, would put law enforcement and the courts is a posture of doubt about whether evidence legally seized today would still be considered legally usable if the sunset ends, while reinvigorating the ACLU’s fundraising, which has thrived because of the current sunsets and has libeled the Act so successfully that even supporters like you see it as flawed.

Aside from, again, avoiding any discussion of what is actually in the legislation, and any admission of the significant legal downsides of sunsets, the other fatal flaw in your position is the assumption that because something was passed during an emergency, it must necessarily be thought of as a mere reaction to the emergency. Is it not possible, Andrew, that the absence of the Patriot Act powers contributed to the emergency? Is it not possible that the powers are so patently sensible, or even essential, that it was dumb to subject them to sunset in the first place and would be even dumber to sunset them now that they have helped us avoid a domestic terrorist attack for four years even though we know al Qaeda is trying mightily?

As you won’t tell us what, in particular, troubles you, let me try asking you directly about what is at stake here. Only about 16 of the many Patriot Act provisions are scheduled to sunset. The most important is the one that knocked down the regulatory “wall” which prevented intelligence agents from comparing notes with criminal investigators and prosecutors. This, for example, caused the FBI in August 2001 to refuse to allow its criminal division to help its intelligence division try to find two guys who, a few weeks later, piloted one of the hijacked jets into the Pentagon. Patriot’s wall provision (Sec. 218) simply allows the left hand to know what the right hand is doing. Does that trouble you? Is there a conceivable set of circumstances in which you’d have agents unable to communicate with each other –- such that the wall should presumptively be rebuilt, which is exactly what you’re saying when you call for a sunset.

Is it the so-called “library records” provision that worries you? That’s the one that doesn’t even mention libraries and permits intelligence agents to compel evidence by subpoena just as criminal investigators have been able to do for eons. Did you know that criminal agents have been authorized for decades (i.e., long before anyone ever thought about the Patriot Act) — without court supervision or record of abuse — to subpoena library records and the records of any business activity? Even for such relative trifles as gambling cases? What do you find possibly offensive about this tool in the hands of national security agents such that, at some future point, the power should presumptively be denied them? (I note in passing Deroy Murdock’s superb reporting that several of the 19 hijackers used libraries in the run-up to the 9/11 attacks. See here.

Maybe roving wiretaps are troublesome to you? In national security matters, agents can’t get a wiretap warrant without demonstrating to a court probable cause that their target is an agent of a foreign power (meaning a foreign spy or a terrorist operative). They’ve had that power by statute since 1978. All the Patriot Act did was allow the wiretap order to attach to a particular person (so that it continues even if he changes phones) rather than a particular location (which would require the agents to go to court every time a terrorist changed phones — something terrorists do with greater frequency than they change socks). Criminal agents investigating drug dealers have had that power since the mid-1980’s. Is there some conceivable reason you think it might someday be inappropriate for national security agents to have it?

If it is possible, the other provisions scheduled for sunset if not renewed are even less controversial than the ones addressed above — which is why critics are generally too embarrassed to attempt a straight-faced argument that actually deals with the specific laws. In short, can you tell us which one of these provisions you think may be proper only as a reaction to a crisis? Or are you just going to keep waving your hand like the ACLU does, pronouncing the whole enterprise flawed, and saying we should have sunsets just because we should have sunsets?

When Congress passes a law it is presumptively valid. The courts, the cops and the public can conduct themselves in the expectation that the law will remain on the books and is not suspect authority that might not be there someday soon. Procedural regularity presumes that valid laws will be appropriately enforced, and that if they are not Congress can pass new laws to address any problems. A sunset provision upsets that proper balance by suggesting that a law is presumptively problematic and temporary. Thus, sunsets should only be used when there is some doubt about whether laws are necessary and valid in their general applications.

There is not a single one of the 16 provisions at issue here that falls into that category.

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