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OPENING ARGUMENT - Misguided Libertarians Are Hindering the War on Terrorism

August 2, 2003

A civil-libertarian backlash against the USA PATRIOT Act is gathering steam. More than 140 cities and communities in 27 states have passed resolutions opposing it, according to the American Civil Liberties Union. The ACLU itself has intensified its nonstop barrage, filing a lawsuit on July 30 challenging the constitutionality of one of the act's most far-reaching provisions, and airing TV ads that warn of government spies secretly searching homes. Some librarians say they are destroying records to prevent the feds from tracking patrons' book borrowing and Internet browsing.

Even Congress, which overwhelmingly adopted the 156-section counter-terrorism statute six weeks after the September 11 attacks, without most members having read it, is showing signs of buyer's remorse. On July 22, the House in a 309-118 vote adopted an appropriations rider to bar the government from invoking the PATRIOT Act to search a home or business without immediately notifying the occupants. Conservative Republicans, including the sponsor, Rep. Butch Otter of Idaho, joined by the ACLU, cheered this vote as a mighty blow against "sneak-and-peek" searches. The Justice Department denounced it as a "terrorist tip-off amendment."

Do 309 House members really want to require the FBI to leave a nice note for the next Mohamed Atta, if and when agents have a chance to sneak into his motel room and copy computer files detailing the identities of his co-conspirators? It's not easy to tell: The platitudinous floor debate left unclear whether the purpose is to bar all delayed-notice searches, despite decades of judicial precedent upholding such searches under some circumstances, or just to roll the clock back to before the PATRIOT Act. Otter demonstrated his own command of the subject by claiming that Section 213 "allows the CIA and the NSA to operate domestically." Wrong.

The Senate has also been doing its part to make it harder for the government to find suspected terrorists. On July 17, it voted to cut off all funding for the Pentagon's Terrorism Information Awareness program. Formerly named Total Information Awareness (and unrelated to the PATRIOT Act), this nascent research project into possible uses of "data-mining" and other sophisticated computer technology to find terrorists before they strike has been the focus of a storm of ill-informed Big-Brother-is-about-to-be-watching-you hype. But the most immediate impact of a funding cutoff would be to curtail development of software that would link counter-terrorism agencies' databases to facilitate information-sharing and the like.

This at a time when the congressional Intelligence committees are slamming those same agencies for failing to share information that might have enabled them to prevent the 9/11 attacks! In their 850-page report, released on July 24, the committees complained of intelligence agencies' "reluctance to develop and implement new technical capabilities aggressively." How are the agencies supposed to do that if Congress kills TIA?

Are Congress and the American people at least waking up to the most insidious Bush administration threats to our freedoms? Not really. Congress has virtually ignored the biggest danger: the administration's incarceration of suspected "enemy combatants" without charges, access to lawyers, or meaningful judicial review. Instead, Congress and many civil libertarians have misdirected their zeal by mischaracterizing the PATRIOT Act's largely reasonable and incremental expansions of the investigative powers that are the government's main hope of catching would-be mass murderers before it's too late.

A recent ACLU fundraising letter, for example, claims that the PATRIOT Act includes "a provision that might allow the actions of peaceful groups that dissent from government policy, such as Greenpeace, to be treated as 'domestic terrorism.' " This is flat-out false. The act's definition of domestic terrorism (Section 802) covers only criminal activities that are, among other things, "dangerous to human life."

Such scare tactics appear to have succeeded, for now, in preventing Congress from granting the administration additional new powers, such as a much-needed proposal to make clear the FBI's authority to search the possessions of the next Zacarias Moussaoui, the suspected "20th hijacker," who was in custody (but unsearched) for weeks before 9/11. Libertarians are also intent on blocking re-enactment of the many important PATRIOT Act provisions that will sunset in 2005.

This is not to deny that some sections of the law authorize significant invasions of privacy for the sake of difficult-to-gauge benefits in preventing terrorist attacks. The most problematic is Section 215, the one challenged in the new ACLU lawsuit. It expands FBI agents' powers, in the course of authorized foreign-intelligence investigations, to inspect without notice and copy records about innocent individuals (as well as suspected terrorists) held by colleges, libraries, hospitals, nonprofits, mosques, Web sites, businesses, banks, and other organizations, and to use gag orders to prevent anyone from telling the targets. Other arguably overbroad provisions are Section 218, which allows investigators to use the search powers provided by the Foreign Intelligence Surveillance Act, even when their primary goal is to find evidence of ordinary crimes, and Section 411, which can be read as authorizing deportation of aliens for innocent associations with terrorist groups.

Even these broad new powers may well be justified by the unprecedented threats we now face. Many libertarians draw exactly the wrong lesson from the Intelligence committees' account of the government's failure to prevent the 9/11 attacks. The report's catalog of human errors, the ACLU asserts, shows that "the government does not need additional new law enforcement powers."

The opposite is true. Intelligence agencies will never be infallible. We should be making it easier, not harder, for their imperfect agents to protect us. Misguided and outdated rules imposed on the intelligence agencies in the name of civil liberties before 9/11 contributed to their failure to prevent the attacks. In particular, the so-called legal "wall" between intelligence and law enforcement agencies helped foster the notorious reluctance of the CIA and FBI to share information.

The PATRIOT Act opened the way for better information-sharing by largely dismantling this wall -- with the help of a decision last November by the special Foreign Intelligence Surveillance Court of Review. The statute also extended to terrorism investigations some powers that prosecutors had long used in drug and organized-crime cases and updated anachronistic electronic surveillance rules to catch up with new communications technologies.

As for the dreaded "sneak-and-peek" provision (Section 213), the claims that it trashes the Fourth Amendment are far-fetched. Federal courts, including the Supreme Court, have authorized such searches for decades in circumstances in which immediate notification might defeat the purpose of the surveillance, including all wiretaps. Section 213 codified a legal standard similar to that used by the U.S. Court of Appeals for the 2nd Circuit, in Manhattan. While the Section 213 standard is more favorable to prosecutors than those used by some other courts, it is hardly a blank check: Notice may be delayed only for as long as "reasonable," and only when necessary to avoid endangering "life or physical safety," intimidation of witnesses, tampering with evidence, flight from prosecution, or "otherwise seriously jeopardizing an investigation or unduly delaying a trial."

The PATRIOT Act has also been blamed for detentions and other possible abuses that are completely unrelated to it. Consider the front-page New York Times article on July 21 hyping a leaked report to Congress by the Justice Department's inspector general. The article trumpeted (unproven) complaints by Arab and Muslim prisoners of "serious civil-rights and civil-liberties violations involving enforcement of ... the USA PATRIOT Act." But these complaints -- mainly of beatings and verbal abuse by guards -- had nothing to do with enforcement of the PATRIOT Act. Its only relevance was that this report would not have been written at all but for Section 1001, which requires periodic reports to Congress of any and all civil-liberties complaints about Justice Department employees.

We need less media misinformation, less libertarian hysteria, and more judicious congressional oversight of the (unfortunately uncooperative) Justice Department. The PATRIOT Act's critics have pointed to precious little evidence that it is anything like the engine of McCarthyite witch-hunts they depict it to be. And while a few sections do pose some risk of overly intrusive FBI spying, there are worse things than that. One of them is being murdered by terrorists.

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