Defense & National Security

Critics Get it Wrong: Patriot Act Exemplifies Checks and Balances

The USA PATRIOT Act was passed near-unanimously by Congress in 2001 with overwhelming bipartisan support, arming the United States with one of our most potent weapons in the war against terrorism. Over the past three-and-a-half years, it has delivered both the necessary tools for the government to identify, incapacitate and convict terrorists before they strike, and also the critical protections needed to prevent government misuse of those tools. To date, not one court or congressional committee has found evidence of any abuse of the powers under the Patriot Act. Not one civil action has been filed against the government under Section 223, which allows citizens to seek damages for any willful violations of the Act. The Patriot Act’s immense successes, however, are often overshadowed by the clamor of misinformation and hyperbole that have come to characterize the debate about it. A case in point is the recent campaign by a group under the moniker Patriots to Restore Checks and Balances (PRCB), chaired by former Rep. Bob Barr (R.-Ga.), seeking to curtail key provisions of the act. What PRCB fails to recognize is that the Patriot Act was carefully crafted to embody the very spirit of checks and balances. Members across the political spectrum joined hands to incorporate a robust set of safeguards to ensure that the strengthened and updated laws remain firmly within the bounds of our Constitution and cherished civil liberties. Section 213, the so-called "sneak and peek" provision, authorizes delayed-notice criminal search warrants, but only pursuant to a court order. Moreover, judges can delay notice only if investigators demonstrate "reasonable cause" to believe that notification would result in death or physical harm to an individual, flight from prosecution, evidence tampering, witness intimidation, or otherwise jeopardize an investigation. Rep. Bob Barr, as a former United States Attorney, should know that law enforcement officers have in fact utilized delayed-notice search warrants for decades. The Patriot Act merely adopted a uniform standard for judges’ inconsistent applications of their constitutional authority to supervise the terms of a search warrant’s use. PRCB’s claim that Section 213 of the Patriot Act violates the Fourth Amendment is simply inaccurate. It does not. Section 215, the so-called "library" provision, does not even mention the word "library" and, as disclosed by the Department of Justice, has not once been used since its passage to obtain library or bookstore records, medical records or gun sale records. Critics have fancifully described the provision as positioning the government as a Big Brother intruding ruthlessly on the privacy of its ordinary citizens. For all the scare tactics, Section 215 merely remedied an anomaly that allowed grand juries for years to issue subpoenas for business records in criminal inquiries, but withheld that same power from courts in national security investigations. Remarkably, the provision is more protective of constitutional freedoms than ordinary criminal procedure. All requests under Section 215 must first be granted judicial approval and fully reported by the Attorney General to Congress semi-annually. The provision cannot be used to investigate ordinary crimes or domestic terrorism, and expressly protects First Amendment rights. The records of average Americans, and even not-so-average criminals, are simply beyond its reach. PRCB’s claim that Section 215 infringes on Americans’ Fourth Amendment freedoms is simply untrue. It does not. Section 802 defines domestic terrorism as a crime only when linked with a criminal act such as murder, hostage-taking or use of weapons of mass destruction in order to coerce governments or citizens to accept a political agenda–not the political agenda in itself. In fact, prior law adopted a more broadly sweeping definition of international terrorism as "violent acts or acts injurious to human life," and Congress correctly decided to narrow the scope of that definition for domestic terrorism in the Patriot Act. PRCB’s claim that Section 802 jeopardizes protest activities protected by the First Amendment is simply wrong. It does not. The understandable, if unfounded, fears of PRCB and other critics of the Patriot Act are a reflection of their attachment to our Constitution and must be addressed. What is needed, however, is a constructive national debate that lowers the heat, turns up the light, and focuses on the facts. Striking the correct balance between liberty and security, the Patriot Act stands as a system of checks and balances at work.


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