Appropriate rational commentary on the specifics that need to be changed about the PATRIOT act to address privacy and governmental power and oversight issues.
The Wall Street Journal
November 12, 2004
COMMENTARY
Patriot Fixes
By BOB BARR
November 12, 2004; Page A12
The most common charge levied against critics of the Patriot Act -- one
that Alberto Gonzales, the new face of Justice, is likely to repeat in
his days ahead -- is that they're "misinformed." Well, as a former U.S.
attorney appointed by President Reagan, a former CIA lawyer and analyst,
and a former Congressman who sat on the Judiciary Committee, I can go
mano a mano with any law-enforcement or intelligence official on the
facts. And the facts say that the Patriot Act needs to be reviewed and
refined by Congress.
Critics of the Act are not calling for full repeal. Only about a dozen
of the 150 provisions need to be reformed; these, however, do pose
singular threats to civil liberties. Here's how to bring them back in
line with the Constitution.
The two most significant problems are sections 213 and 215. The first
authorized the use of delayed-notification search warrants, which allow
the police to search and seize property from homes and businesses
without contemporaneously telling the occupants. The Justice Department
often claims that this new statutory "sneak and peek" power is
innocuous, because the use of such warrants was commonplace before.
Actually, the Patriot Act's sneak and peek authority is a whole new
creature. Before, law enforcement certainly engaged in
delayed-notification searches, especially in drug investigations.
Importantly, this authority was available in terrorism investigations.
Courts, however, put specific checks on these
warrants: They could only be authorized when notice would threaten life
or safety (including witness intimidation), endanger evidence, or incite
flight from prosecution. It was a limited and extraordinary power.
The Patriot Act greatly expanded potential justifications for delay. The
criminal code now allows secret search warrants whenever notice would
"jeopardize" an investigation or "delay" a trial -- extremely broad
rationales. The exception has become the rule. Congress should remove
that catch-all justification and impose strict monitoring on the use of
these secret warrants.
The other primary problem is the "library records" provision, Section
215.
This amended a minor section of the 1978 Foreign Intelligence
Surveillance Act, which created a specialized court for the review of
spy-hunting surveillance and search requests. This "business records"
section allowed agents to seize personal records held by certain types
of third-parties, including common carriers and vehicle rental
companies. The Patriot Act made two changes to this relatively limited
power: It allowed the seizure of any "tangible thing" from any
third-party record holder (including medical, library, travel and
genetic records); and it removed the particularized suspicion required
in the original statute.
Pre-2001, investigators had to show "specific and articulable facts" --
a standard much lower than criminal probable cause -- that a target was
a spy or terrorist. Now, that already low standard has been lowered
further.
Agents simply certify to the intelligence court that the records desired
are relevant to an investigation -- any investigation -- and the judge
has no real authority to question that assertion, rendering judicial
review meaningless.
Reformers on the left and right want two fixes to this section. First,
reinstall the individualized suspicion requirement. This reflects the
Fourth Amendment notion that the government cannot invade privacy and
gather evidence unless it has reasonable suspicion that one has done
wrong.
The proposed "fix" would retain the section's broad "tangible things"
scope, but with a safeguard against abuse. The authorities would still
be able to go to a criminal grand jury to demand the production of the
same records, providing additional flexibility for counterterrorism
work.
Second, Congress should require additional reporting requirements.
There are other refinements desired by the Act's critics. The new
definition of domestic terrorism in Section 802 can be used by
prosecutors to turn on an array of invasive new authorities, including
broad asset-forfeiture powers, even when the underlying crime does not
rise to the level of "terrorism." The preferred legislative reform keeps
the definition, but links it to specific crimes like assassination or
kidnapping.
Reasonable critics of the expansive provisions of the Patriot Act, on
both sides of the aisle and in both Houses, have introduced legislation
that would implement these modest changes. Far from gutting the Act,
these would secure the important powers of the law, but place modest
limits on their use. For most of us who voted for the Act, what sealed
the deal was the inclusion of provisions that would require us to take a
sober second look at the most contentious provisions in the Act by the
end of 2005, before reauthorizing them. That time is coming, and the
Justice Department does not want to lose the emergency powers it won in
the aftermath of 9/11. But Congress should resist its overtures, move
forward on the sunsets, and enact additional Patriot fixes if it
believes them needed.
Mr. Barr is a former Republican congressman.
