Patriot Act Hysteria Meets Reality

"When the Bush administration says it wants to make permanent the freedom-stealing provisions of the PATRIOT Act, they're telling those of us who believe in privacy, due process, and the right to dissent that it's time to surrender our freedom."

So screams the first sentence of a recent fundraising letter from the American Civil Liberties Union. This and countless other overheated attacks—from conservative libertarians and gun-rights activists as well as liberal groups—have scared some 375 local governments and five states into passing anti-PATRIOT Act measures, while sending earnest librarians into a panic about Big Brother snooping into library borrowers' reading habits.

But consider what the ACLU says when it is seeking to be taken seriously by people who know something about the issues: "Most of the voluminous PATRIOT Act is actually unobjectionable from a civil-liberties point of view, and ... the law makes important changes that give law enforcement agents the tools they need to protect against terrorist attacks."

That's right: That was the ACLU talking, in an April 5 press release. To be sure, the release goes on to stress that "a few provisions ... unnecessarily trample civil liberties, and must be revised." Well, perhaps. And with 16 provisions of the USA PATRIOT Act scheduled to sunset on December 31, it is surely time to give the entire 342-page, 156-section law the careful scrutiny that it has not received from most of the legislators who passed it in October 2001.

This is not to deny that the Bush administration has engaged in grave abuses, both at home and abroad, beginning with its unduly prolonged post-9/11 detention and (in many cases) abuse of hundreds of visitors from the Muslim world. Most alarming have been the administration's claims of near-dictatorial wartime powers to seize and interrogate—even to the point of torture—anyone in the world whom the president labels an "enemy combatant."

But contrary to many a newspaper account, these abuses and overreaching claims of power had nothing to with the PATRIOT Act, about which so many people have cried wolf that the real wolves have received less attention than they deserve.

The good news is that with the December 31 sunset approaching, serious thinking has penetrated the previously shallow debate. Anyone interested in reading the best arguments for and against the more controversial provisions can find them at www.PatriotDebates.com, a collection of mini-debates among an ideologically diverse group of 17 experts. The "sourceblog" was put together by Stewart Baker, chair of the American Bar Association's Standing Committee on Law and National Security.

"In several cases, the civil libertarians we recruited to find fault with particular provisions have ended up proposing modification rather than repeal," writes Baker. And amid numerous suggestions for modest tinkering, it turns out that only about six provisions have provoked very spirited debate. This should not be surprising: Much of the act consists of long-overdue amendments—which were on the Clinton Justice Department's wish list well before 9/11—to give government agents pursuing terrorists and spies the same investigative tools that are available to those pursuing ordinary criminals, and to counteract the bad guys' use of new technologies such as e-mail and disposable cellphones.

The most widely denounced provision is Section 215, one of the 16 that will sunset unless re-enacted. It is commonly known as the "library" provision because it might someday be used to obtain library records—even though, as the Justice Department reported on April 5, it never has been so used and does not even contain the word "library." Section 215 authorizes the FBI to obtain an order from a special court, established under the Foreign Intelligence Surveillance Act, to require any business or other entity to surrender any records or other "tangible things" that the FBI claims to be relevant to an intelligence investigation.

This power is undeniably sweeping. But it is almost certainly constitutional under Supreme Court rulings that allow, for example, the government to see your credit card records. And it is far less invasive of privacy than, say, a wiretap. What many critics ignore is that for decades, prosecutors have had even more-sweeping powers to issue subpoenas requiring businesses and organizations, including libraries and medical facilities, to hand over any records that are arguably relevant to ordinary criminal investigations. Such subpoenas have been routinely issued without prior judicial scrutiny for many years.

Critics complain that a Section 215 order can apply to records pertaining to people not suspected of being foreign agents. (The same is true of an ordinary subpoena.) But this is as it should be. A key technique for catching terrorists is to trace their activities through those of associates who are not themselves engaged, or known to be engaged, in terrorist activities.

This is not to say that Section 215 is flawless. Most obviously, it fails to specify any way for a recipient of an unwarranted or overly broad order to ask a court to reject or narrow the order. Even Attorney General Alberto Gonzales has conceded that this is a defect that should be cured.

Gonzales, in this and other ways, including his April 13 meeting with ACLU Executive Director Anthony Romero, has responded to critics far more constructively than his predecessor, John Ashcroft, ever did.

Critics, including Peter Swire, a law professor at Ohio State University who is the Section 215 critic on PatriotDebates.com, also make a strong case that a gag-order provision in Section 215 is unduly sweeping. This provision automatically bars recipients from disclosing Section 215 orders to the media or to anyone else, ever. The purpose is to prevent terrorists from learning that the government is on their trail. But the absolute and perpetual nature of the gag orders eliminates a key check on possible abuse. Swire proposes several limitations. At least one seems worthy of adoption: The gag orders should expire after six months unless extended by the FISA court.

The other major target of civil libertarians is Section 213, which authorizes so-called "sneak-and-peek" warrants for what the government calls "delayed-notice" searches. Ordinarily, search warrants must be served on the subjects at the time of a search. Section 213, which is not among the provisions scheduled to sunset, recognizes several exceptions, allowing judges to delay notice of a search until after a search is already completed, when the government shows that delay may be necessary to avoid: 1) endangering life or physical safety, 2) flight from prosecution, 3) tampering with evidence, 4) intimidation of witnesses, or 5) "otherwise seriously jeopardizing an investigation or unduly delaying a trial." This last is the so-called catch-all provision.

Amid a deluge of misleading scare rhetoric about FBI agents rummaging through bedrooms and covering their tracks, most critics have ignored the fact that Section 213's main impact is to codify what courts have done for decades when necessary to avoid blowing the secrecy that is critical to some investigations.

Critics complain that Section 213 was enacted under a false flag, because sneak and-peek searches in terrorism investigations had already been authorized by FISA. The provision's main impact, they say, has been to make it easier for agents to obtain sneak-and-peek warrants in ordinary criminal investigations. This is true. It's also true that a strong case can be made for revising Section 213 to require notice of an ordinary criminal-investigation search within, say, seven days unless the court authorizes further delay. And it's arguable that the catchall provision makes it too easy to get a sneak-and peek warrant.

But on the scale of threats to liberty, Section 213 ranks far, far below such widely ignored laws as, for example, the five-year mandatory minimum prison sentence for possessing five grams of crack cocaine.

The debates over the other four most controversial provisions—which cover three subject areas: "roving wiretaps," information-sharing between criminal and intelligence investigators, and prosecutions of people for providing terrorists with "material support"—also boil down to plausible arguments for and against relatively modest adjustments in the liberty-security balance.

Many libertarians have united behind the proposed SAFE Act, a package of revisions that would probably be of no great harm to the war on terrorism and no great benefit to civil liberties. But at a time of domestic security threats more dire than in any period since the Civil War—threats posed by jihadists who have a chillingly realistic hope of buying or making doomsday weapons that could kill us by the millions—most of these proposals strike me as small steps in the wrong direction.

But even if I'm incorrect about that, the big news is that for all the Sturm und Drang, we may be seeing the emergence of a remarkable expert consensus: For the most part, the USA PATRIOT Act is a good law.