The debate over the USA Patriot Act continues to be fraught with misinformation and false characterizations. Recent editorials contribute to...
The debate over the USA Patriot Act continues to be fraught with misinformation and false characterizations. Recent editorials contribute to the distorted view of the Patriot Act with references to “excessive powers granted to federal authorities” and “overreaching.” The fact is, those sections of the Patriot Act generating the greatest outcry are those that simply give law enforcement the benefit of the same tools in the war on terrorism that they have long had in the war on crime.
For example, the media vociferously point to the Patriot Act as a means by which government agents can now review our library records. Yet, long before enactment of the Patriot Act, library records have been subpoenaed and used in criminal prosecutions when such evidence would be relevant to the crime being investigated.
In 1996, a federal grand jury subpoenaed library records in the investigation of the Unabomber. Library records were subpoenaed to crack the case against Gianni Versace’s murderer in 1997. Here in Washington state, library records were used to gather critical evidence against Stella Nickel, convicted in 1988 of poisoning her husband and another woman with cyanide-tainted medications. The power to subpoena records of any kind, including library records, business records or financial records, has been a longstanding and fundamental resource in law enforcement’s ability to investigate and prosecute criminal conduct.
Why, then, should law enforcement be denied this fundamental tool in its investigation and prosecution of terrorism? Terrorism is, after all, the ultimate form of criminal conduct. Section 215 of the Patriot Act simply gives the government the ability to obtain business records and other tangible things pursuant to an order from the federal Foreign Intelligence Surveillance Act Court. Ironically, as of March 30, the Patriot Act authority has never been used to request library records. However, the authority to do so is critical, just as the authority to subpoena other kinds of records is critical to law enforcement’s efforts.
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Critics of the Patriot Act also point to the “sneak and peek” searches authorized in Section 213 to conjure up images of excessive federal powers. In essence, delayed notification searches authorize federal agents to conduct a search, after getting a federal search warrant signed by a federal judge, without having to give immediate notification to the target of the investigation. Such delayed notification is permitted when good reason is shown, and when a federal judge authorizes it.
Once again, these kinds of delayed-notice searches have been allowed by courts in criminal prosecutions for decades. They were used, for example, in building the case against Mafia don John Gotti. They have been upheld as constitutional by the U.S. Supreme Court. They are nothing new. They are used primarily in cases in which the criminal conduct is long-term, multifaceted and involves many targets. Some of the targets may be unidentified. These are precisely the characteristics we would expect in terrorist operations in this country.
The Patriot Act simply permits use of this longstanding tool in cases involving terrorism. As such, under the act, a federal judge can authorize temporarily delaying notice of a search if notice could result in danger to an individual, the destruction of evidence or seriously jeopardize an investigation. Clearly, as law enforcement tries to identify and protect against terror plots, this is an essential means by which to investigate terrorists, their operations and their intentions.
Moreover, since its enactment through Jan. 31 of this year, the Department of Justice has requested only 155 delayed-notice search warrants. That amounts to less than one-fifth of 1 percent of the more than 77,000 search warrants obtained by the department during this time period.
Attorney General Alberto Gonzales has already supported some clarifications in the act. One change will make it clear that anyone receiving a Patriot Act order (a request for records, for example) may consult with his attorney and challenge the order in court. Additionally, Gonzales supports explicit language that the government will seek, and the court require, only the production of records that are relevant to a national-security investigation. This creates a similar standard to the one that applies to grand-jury subpoenas in criminal cases.
Even critics of the Patriot Act agree that it has helped remove a “wall” between law enforcement and intelligence communities. Getting rid of this wall means investigators can now work together and more productively uncover terrorist plots before they claim innocent lives.
This is a good result.
For years, law enforcement has used court-approved tools to go after the mob, drug traffickers, gangs and other criminals. The Patriot Act allows use of those same court-approved tools to go after terrorists. Congress needs to renew the USA Patriot Act, giving law enforcement the tools needed to keep our country and our citizens safe.
John McKay is the U.S. attorney for the western district of Washington.