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Commentary By Heather Mac Donald

In Defense Of the Patriot Act

The recent indictment of a would-be arms merchant connected to al Qaeda is only the latest reminder that the threat of terrorism is as urgent as ever. Yet many among the political and opinion elites act as if America is more at risk from the Bush administration’s efforts to thwart future terror attacks than from the attackers themselves. Hardly a day passes without a well-publicized denunciation of the government’s alleged assault on civil liberties. Cities and counties across the country are declaring themselves “civil liberties safe zones,” and a barrage of bills in Congress seeks to repeal sections of the USA Patriot Act, the anti-terrorism law passed after 9/11, on the ground that it violates constitutional rights.

The American Civil Liberties Union recently filed a lawsuit in a Michigan federal court against the most frequent target of civil libertarian ire -- the Patriot Act’s business records provision. The rhetoric surrounding this provision, also known as Section 215, has been alarmist, to say the least. In an editorial applauding the ACLU’s action, The Cleveland Plain Dealer, for example, called the measure the “seedstock of a police state.”

Section 215 allows the FBI to obtain documents in third-party hands if they are relevant to a terrorism investigation. According to the ACLU, this power allows the FBI to “spy on a person because they don’t like the books she reads, or because . . . she wrote a letter to the editor that criticized government policy.”

The charge is baseless. To begin with, it ignores the fact that the FBI can do nothing under Section 215 without the approval of a federal court. Let’s say the FBI has received a tip that al Qaeda sympathizers have taken scuba lessons in preparation for an attack on Navy destroyers off the California coast. Under 215, the bureau could seek a court order for local dive school records to see if any terror suspects had recently enrolled.

The key phrase here is “seek a court order.” It is inconceivable that the court that oversees espionage and counterterrorism investigations will approve a records request made because the FBI doesn’t “like the books” someone reads, or “because she wrote a letter to the editor that criticized government policy,” as the ACLU claims.

The ACLU also argues that Section 215 violates the Fourth Amendment right to privacy. But like it or not, once you’ve disclosed information to someone else, the Constitution no longer protects it. This diffuse-it-and-lose-it rule applies to library borrowing and Web surfing as well, however much librarians may claim otherwise. By publicly borrowing library books, patrons forfeit any constitutional protections they may have had in their reading habits.

Another ACLU attack on 215 uses the tactic of ignoring legal precedent. Grand juries investigating a crime have always been able to subpoena the very items covered by 215 -- including library records and Internet logs -- without seeking a warrant or indeed any judicial approval at all. Section 215 merely gives anti-terror investigators the same access to such records as criminal grand juries, with the added protection of judicial oversight.

The administration’s opponents reply that grand-jury subpoenas are preferable, because they can be contested in court and are not always confidential, as are 215 orders. But these differences are fully justified by the distinction between preempting terrorism and prosecuting crime. Speed and secrecy are essential to uncovering a terror plot before it climaxes. The perils of unnecessary delay were made clear in the Zacarias Moussaoui case, when Justice Department bureaucrats, virtually mummified by red tape, forbade Minneapolis FBI agents from searching the al Qaeda operative’s computer in the weeks before 9/11.

Critics of the administration also decry the Patriot Act’s provision for delaying notice of a search -- the so-called “sneak-and-peak” rule -- as an outrageous power grab by the government. The Patriot Act naysayers don’t tell you that there is nothing new about this power at all: Judges have long allowed the government to delay notice of a search if notifying the target would risk witness intimidation, destruction of evidence or flight from prosecution. The Patriot Act merely codifies existing case law into one national standard.

In introducing a bill last month to amend Section 215, Sen. Russell Feingold (D-Wis.) alleged that Americans had become “afraid to read books, terrified into silence.” Were that ever the case, it would be thanks to the misinformation spread by advocates and politicians, not because of any real threat posed by the Bush administration’s war on terror.