Julian Sanchez' recent article on the USA PATRIOT Act and its supporters prompted the following reply from the Manhattan Institute's Heather Mac Donald. Sanchez replies to Mac Donald below.
Mac Donald: Sanchez doesn't realize we're at war
Mr. Sanchez is insulted by what he calls the "'don't you realize we're at war?' trope" employed by Bush Administration defenders. His response, however, only validates the query.
Mr. Sanchez mocks the notion of a war on Islamic terrorism because "'terror'" is "an abstraction, not a country." The 9/11 attacks were certainly not an abstraction to the people killed in them, however, nor to their families. Had Saudi Arabia, say (just as much of an "abstraction" as Islamic terrorism), destroyed the World Trade Center and part of the Pentagon, while almost taking out the Capitol or White House, no one would have questioned that those strikes were an act of war, intended to decapitate the country's political and financial leadership. Why, then, were the actual attacks not also war strikes by Al Qaeda, pursuant to Osama Bin Laden's 1998 call for Muslims to destroy Americans?
The question is fundamental, for its answer provides the framework for evaluating the government's actions after 9/11. If we're not at war with Islamic terrorists, then presumably the government is operating against Al Qaeda in its criminal prosecution mode. All traditional due process checks on the government's power should apply: Terror investigations must be public, the government must meet high burdens of proof—beyond a reasonable doubt or probable cause—before acting against a terror threat, and delays caused by the invocation of a wide variety of rights must be accepted as the cost of doing business.
An absurd inference? Hardly. Mr. Sanchez, like the entire universe of Bush critics, is particularly exercised that PATRIOT Act orders for obtaining documents are secret, unlike grand jury subpoenas during criminal prosecutions. Presumably he would have counterterror agents litigate their requests for records in public, just like prosecutors, putting the next Mohammad Atta on notice that the government was on his trail.
If , however, the government is trying to destroy an enemy before it can launch another catastrophic attack, then secrecy and speed are essential and the full panoply of criminal procedural rules are surely not relevant. The fact that the enemy hides in the civilian population, and can be routed only with intelligence gathered by domestic law enforcement agencies, unquestionably makes this war an unconventional one. But the touchstone for resolving the legal issues it raises has to be an acknowledgement that what is at stake is preventing mass destruction. I have yet to see such an acknowledgement among libertarians.
Mr. Sanchez also finds impolite the challenge to name a single civil liberty that has been violated under the PATRIOT Act. Such a simplistic question, he says, misunderstands libertarian concerns, which are directed at the "institutional tendencies created by a law," not its immediate effects. But the critics have hardly confined themselves to slippery slope arguments; they say that Americans have lost their civil liberties now. Mr. Sanchez, for example, claims that section 215 document orders, like subpoenas, "circumvent the Fourth Amendment." This claim is as false as every other allegation of constitutional violations. There is no Fourth Amendment right in records and personal information disclosed to a third party. That is why grand juries can get them without a warrant, and why the FBI doesn't need to show probable cause to obtain a section 215 order for them.
As for the charge that the PATRIOT Act could be abused at some point in the future, that potential inheres in any government power. The question must always be: What are the checks on the power in question, and how do its benefits stack up against the risks, including the risk of doing nothing. Mr. Sanchez disparages the judicial review requirements of the PATRIOT Act, on the by-now excruciatingly predictable ground that the court that oversees terrorism investigations (the Foreign Intelligence Surveillance Act or FISA court) has "rejected precisely one federal wiretap or subpoena request in the course of 25 years." That's true, and here's why: Until 9/11, the Justice Department bureaucracy spent months vetting each FBI request for a FISA wiretap before it would take the request to the court. By the time Justice Department attorneys were finished preparing the case, its approval was guaranteed. Unfortunately, by then, the request may also have become moot. In 2000, an alarmed Senate Select Committee and the National Commission on Terrorism both warned that Justice's excessive evidentiary requirements for submitting wiretap requests were dangerously impeding counterterrorism investigations.
Regarding Mr. Sanchez's charge that Section 215 is "neither a 'check' nor a 'balance'": Section 215 empowers the FISA court to issue a document order if the court "finds that the [FBI's] application meets the requirements of this section." This language is identical to FISA's business records provision that Section 215 superseded. FISA's judicial review language never triggered a civil libertarian ruckus, presumably because politics at the time did not dictate such a ruckus, and because the provision then, as now, implies the power to review the factual basis of the FBI's application.
Administration advocates have spent the last two years explaining how the common-sense changes in intelligence law post-9/11 improve the government's defenses against terrorists. But since Mr. Sanchez claims that the question "How will these new powers make us safer?" has "never been answered," here's one more attempt: Before the PATRIOT Act, two FBI agents in the same office and on the same Al Qaeda squad could not talk to each other about a suspected Al Qaeda cell if one agent was designated a criminal investigator and the other an intelligence investigator. Nor could U.S. attorneys with deep knowledge of Al Qaeda share their expertise with intelligence agents, a prohibition which Mary Jo White, former U.S. Attorney for the Southern District of New York, called the "the single greatest danger we have blocking our ability to obtain and act on [terrorist] information." The PATRIOT Act finally tore down the wall between anti-terror investigators and allowed all members of the domestic intelligence community to collaborate and share information on terror threats—a vital prerequisite to preempting another attack.
It is in fact the civil libertarians who have never answered such questions as: "How does allowing two FBI counterterrorism agents to talk to each other threaten Americans' civil liberties?" Or: "How does a single national warrant for a mobile phone wiretap compare in its freedom-destroying potential to 9/11, when international air space shut down and Americans were terrified to travel?" Or: "How is liberty curtailed by allowing the government to delay notice of a search, when immediate notice would endanger the life or physical safety of an individual?" Instead, the libertarians have responded to each technical modification in security law with broad, blunderbuss invocations of disappearing freedoms and lost civil liberties, as if pre-Internet surveillance law were indistinguishable from the Bill of Rights.
As long as civil libertarians refuse to balance the risks of modestly expanded or better coordinated government power with the risks of another act of mass destruction, the vast majority of Americans will regard them as hopelessly irrelevant to the post-9/11 world and hopelessly ignorant of the basic duty of government: to preserve life.
Sanchez: Expanding the information glut won't help