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
I watched that black cloud billow up over downtown from the window of my Manhattan apartment, just as I can only assume Heather MacDonald did. So I don't need to be reminded what happened on September 11 two years ago. I don't need to be reminded what, precisely, our law enforcement agencies are now trying to prevent that from happening again. And if I am less eager than Mac Donald to hand those agencies broad new powers, it is not because I need to be reminded of what is at stake. Even in the face of the awful memory of 9/11, certain facts remain, and make it impossible for me to erase my sense of trepidation at the prospect of a "new normal" that includes the hurried expansion of a government's power to spy on its citizens.
The first of those facts is that, as Mac Donald notes, the war in which we now find ourselves engaged is, to put it mildly, "an unconventional one." Our enemies have soldiers, but no uniforms; bases, but no palaces above which to run the white flag; leaders, but no sovereigns to surrender. They move among Americans and, as John Walker Lindh and the alleged terrorist Jose Padilla prove, they may be Americans. The new challenges presented by the war on terror may indeed require new powers, but the form that the war is taking also gives us special reasons for worry. Mac Donald is, of course, right that September 11 would have been treated as an ordinary, familiar act of war if ordered by Saudi Arabia. But so would the bombing of the Murrah Building in Oklahoma City. Which is to say, if things were different, things would be different. But al-Qaeda is not Saudi Arabia, and that makes a difference. It makes a difference because if we take Mac Donald at her word, the domestic war never ends. Al-Qaeda is not even a sole organization, in the usual sense, but a loose coalition of groups. This is therefore a war with no victory conditions, short of the total elimination of groups of people who hate the United States enough that they might act to harm its people. That amounts to requesting special crimefighting powers, to be surrendered just as soon as there is no more crime. To take literally the notion that the terror war should be treated as a conventional war is, in effect, to accept permanent war powers: The horror of 9/11 will always loom in the background to justify continued expansion of powers.
Civil liberties aren't worth much to a corpse. Despite my remarks above, and despite what Mac Donald implies, I don't think law enforcement must pursue al-Qaeda agents precisely as it might a ring of hubcap thieves. But we don't get to talk much about the reasonable, balanced steps we might take in the terror war, because Mac Donald takes the same all-or-nothing "blunderbuss" approach she attributes to civil libertarians. If you have anything bad to say about PATRIOT, then you must think federal agents don't need roving wiretap authority for terrorists. In fact, once you clear away the smoke and mirrors, my original argument, as opposed to a hypothetical argument for total inaction, isn't much affected by Mac Donald's riposte.
The main substantive point that needs to be addressed pertains to the "business records" provision of PATRIOT. Actually, the language of the bill seems to extend not merely to records but to "tangible things"—which is to say, just about anything, but we'll let that slide. Mac Donald argues that there is no Fourth Amendment right in information disclosed to third parties, such as banks or bookstores. And she's right in the sense that at least according to the main line of jurisprudence in this area, the line of cases following U.S. vs. Miller, the court believes that once you reveal something to anyone, you've effectively revealed it to everyone, the government included. The problem with this line of cases was succinctly diagnosed by Judge Richard Posner in The Economics of Justice:
[These cases], taken at face value, permit privacy to be invaded with impunity by a simple two-stage procedure. In the first stage the government requires the citizen to provide or make available to the government certain information; in the second the information is supplied to a law enforcement agency. The individual has no remedy at either stage. He is entitled to object neither to the requirement of providing the information if the requirement is reasonable, nor to the release of the information by the agency that obtained it from him, since the agency is in lawful possession of the information.
I don't know if those cases would have been decided the same way had the Internet and the routine exchange of information in accordance with explicitly posted privacy existed at the time, but let's even assume that this awful line of cases is correct. At the very least, one had the option of challenging those information requests in court. That option no longer exists. Incidentally, this very topic will be the subject of our November cover story, an excellent piece by John Berlau.
Then there's the issue of the FISA courts. Let's grant, arguendo, that the reason FISA requests have pretty much always been granted is that the Justice Department lives in such morbid terror of being turned down on a request for a court order that it previously crossed every t and dotted every i with the scrupulousness of an ACLU attorney. What does "the power to review the factual basis of the FBI's application" now imply? Well, presumably the power to double-check that the FBI really does want the records "in connection with" some investigation intended to "protect against terror." Oh, and there's the comforting addendum that the basis of the investigation can't be exclusively conduct protected by the First Amendment. Still, the "check" on the "factual basis" here consists of confirming that the FBI is really conducting an investigation and really wants information. Does this fool anyone?
Here as elsewhere, Mac Donald's argument rests on acts of misdirection, leaps from the desirability of limited powers to apply to terrorism investigations to a defense of broader, unchecked power that apply not only to suspected terrorists but to anyone. Probably "sneak and peek" searches on terrorists are a good idea. But until the Otter Amendment, which passed the House by a wide margin and has yet to come before the Senate, denied funding for broader uses, those searches were authorized for criminal investigations as well. The ability to share information obtained by grand jury subpoenas is probably useful—but why the resistance to some elementary oversight limiting the way that information is shared? Why not look first at the failure of intelligence agencies to share the information that they were already allowed to share because of jealousy over turf, and then ask how much weakening of the porous wall between domestic investigation and spying is needed? Why assume that the answer to every intelligence failure must be more information, when the glut of information available before 9/11 was so badly used? Roving wiretap authority for suspected terrorists, again, is certainly a good idea. But what are we to make of wiretap orders that must specify neither particular facilities—specific phones—nor particular persons? How on earth does that comport with the Fourth Amendment? Why can't we talk about the kinds of robust oversight that would limit the potential for abuse of these powers, a pressing need when you consider that the PATRIOT Act effectively prevents us from knowing about those abuses if and when they happen? Mac Donald in effect pleads nolo contendere on all these points because she is largely engaged with imaginary interlocutors who believe that the proper response to terror is to begin studying the Koran and await the imposition of Shariah.
In a sense, Mac Donald is right that the more hysterical pronouncements of PATRIOT critics have been counterproductive. There was no real debate before the passage of the PATRIOT Act; debate is sorely needed now. Unfortunately, each side remains engaged with a caricature of the other. I am more than willing to grant that the war on terror may demand special, though limited, powers that we would not have countenanced—did not countenance when the Clinton administration requested them—five years ago. We cannot talk about the wisest way to bound those powers if civil libertarians see every step to remedy intelligence failure as a step on the road to serfdom. But neither can we do so while Mac Donald and others defend PATRIOT as though the alternative to that overbroad act were to do nothing.