Tuesday's Senate Judiciary Committee hearings kicked off a new round of debate over the PATRIOT Act—a debate that's welcome even if it's not occurring, as is our quaint tradition in most cases, before the passage of the law under consideration. Sixteen provisions of the controversial law are set to expire at the end of this year. Attorney General Alberto Gonzales wants them made permanent, while FBI Director Robert S. Mueller wants expanded powers to issue administrative subpoenas for information.
Many news reports noted that this was a kinder, gentler defense of the PATRIOT act. Unlike his predecessor, Gonzales did not rail against critics as hysterics seeking to "scare peace-loving people with phantoms of lost liberty" or charge that those who question the PATRIOT Act "aid terrorists" or "give ammunition to America's enemies." He even announced that he was "open to suggestions" on how PATRIOT might be improved, and made a genuinely heartening concession that it might be wise to amend the act's section 215 to clarify that people served with secret requests for records may at least contact attorneys if they wish to challenge any given request. But the general tenor of the testimony—aided by the inquisitive equivalent of a reacharound from Sen. Jeff Sessions (R-Alab.)—was familiar: PATRIOT is vital, concerns about civil liberties sacrifices are either hysterical or based on misunderstandings of the law, and no very serious rethinking of controversial provisions is needed.
The ACLU has scraped up a few instances they regard as overreach, but Sen. Orrin Hatch (R-Utah) could nevertheless accurately say that, in general, critics are "hard-pressed to provide any documented abuses." As I've observed elsewhere, that should scarcely be surprising given the level of secrecy PATRIOT imposes. Gonzales observed, in an attempt to counter fears about the use of the law's section 215 to seize citizens' library records, that it has never been used in that context. But he added that libraries have also "voluntarily" turned over information, presumably with the knowledge that a section 215 order could easily be obtained, which means that the law's hidden reach may extend further than the numbers suggest.
Sens. Patrick Leahy (D-Vt.) and Arlen Specter (R-Penn.) both complained that the FBI and Department of Justice had been willfully reticent about providing Congress with information about the use of the PATRIOT Act, providing scanty details, often extraordinarily late. To borrow a phrase from the law-and-order crowd, if they have nothing to hide, what are they afraid of?
The information we do have about the use of the PATRIOT Act doesn't do a great deal to bolster the claims of its defenders. Though the Act is invariably described as "anti-terror legislation," it seems clear that the majority of "sneak-and-peek" searches conducted under the law's section 213, wherein law enforcement may conduct searches and decline to inform the search subjects they've occurred until many months later, are used primarily for investigations having nothing to do with terrorism.
That's perfectly apt according to Mueller, since "experience has taught the FBI that there are no neat dividing lines that distinguish criminal, terrorist, and foreign intellgence activity… Some cases that start out as criminal cases become counterterrorism cases. Some cases that start out as counterintelligence cases become criminal cases." Indeed; who knows where the wacky roller coaster of intelligence work will lead us? That strip club owner might have links to Al Qaeda, and if that dark-skinned fellow turns out not to be a mujahideen, he may at least be growing some dope in his basement.
What's striking is how weak the case for the PATRIOT Act's vital necessity as an anti-terror measure appears even when we focus on the Department of Justice's handpicked examples, as provided in their "Report from the Field." Law enforcement's proud displays of PATRIOT's effectiveness involve drug interdiction, computer hackings, child pornography, gambling, and a variety of other crimes notable for not being terrorism.
The few uses of PATRIOT to foil ostensible terrorist plots aren't particularly impressive either—certainly in none of those cases does it seem as though the delay that greater judicial oversight might've imposed would've been an insuperable obstacle. DOJ cites the likes of the Lackawanna Six or the "Virginia Jihad" group, also known as the "paintball terrorists." In other words, as Slate's Dahlia Lithwick puts it "disaffected bozos who watch cheesy training videos, admire their fine Gold's Gym selves in the mirror, and try to take grandiose trips abroad."
When Judiciary Committee Chairman Arlen Specter (R-Penn.) noted that of 155 sneak-and-peak searches conducted under section 213's authority—108 in the last 22 months alone—some 92 relied upon the catchall rationale for nondisclosure: Revealing a search had taken place risked "jeopardizing an investigation." Which presumably means that those instances were not cases where disclosure of the search risked imminent harm to persons or property, suspect flight, destruction of evidence, or intimidation of witnesses. What, Specter wanted to know, were these other cases that required special "sneak-and peek-searches?"
Director Mueller offered a story about intercepting Ecstasy imports from Canada.
However vital we might think PATRIOT is, it's hard to see how it would be crippled by the newly-reintroduced SAFE Act sponsored by Idaho Republican Sen. Larry Craig (whose American Conservative Union rating marks his career as among the most conservative in the Senate) and Sen. Richard Durbin (D-Ill.)
On the PBS program NewsHour Monday night, PATRIOT architect Viet Dinh said the bill "being reintroduced today was introduced last year to widespread condemnation and opposition from the law enforcement community, from the intelligence community and from a bipartisan opposition of Congress."
That's false. The current version of the SAFE Act has been significantly revised [PDF] from the version that died in committee in the 108th Congress, easing proposed restrictions on notification delays following "sneak-and-peek" searches and attempting to fix controversial sections of PATRIOT by providing oversight and various judicial safeguards rather than sunsetting them.
Since Attorney General Gonzales has indicated that he's "open to suggestions," perhaps its time to shift the burden in the debate over the PATRIOT Act. The SAFE Act provides a narrow set of common-sense checks that would ease the concerns of civil libertarians while leaving intact many of the powers PATRIOT proponents say are vital. With the law back on the table, we can ask which of SAFE's provision is so excessively protective of civil liberties that it would hamstring law enforcement. To make the case on those terms, PATRIOT's defenders will have to do a better job than they've managed so far.