Patriot Fixes

[R.A. Hettinga]

<http://online.wsj.com/article_print/0,,SB110022195361672222,00.html>

The Wall Street Journal


 November 12, 2004

 COMMENTARY


Patriot Fixes

By BOB BARR
November 12, 2004; Page A12


The most common charge levied against critics of the Patriot Act -- one
that Alberto Gonzales, the new face of Justice, is likely to repeat in his
days ahead -- is that they're "misinformed." Well, as a former U.S.
attorney appointed by President Reagan, a former CIA lawyer and analyst,
and a former Congressman who sat on the Judiciary Committee, I can go mano
a mano with any law-enforcement or intelligence official on the facts. And
the facts say that the Patriot Act needs to be reviewed and refined by
Congress.

Critics of the Act are not calling for full repeal. Only about a dozen of
the 150 provisions need to be reformed; these, however, do pose singular
threats to civil liberties. Here's how to bring them back in line with the
Constitution.

The two most significant problems are sections 213 and 215. The first
authorized the use of delayed-notification search warrants, which allow the
police to search and seize property from homes and businesses without
contemporaneously telling the occupants. The Justice Department often
claims that this new statutory "sneak and peek" power is innocuous, because
the use of such warrants was commonplace before. Actually, the Patriot
Act's sneak and peek authority is a whole new creature. Before, law
enforcement certainly engaged in delayed-notification searches, especially
in drug investigations. Importantly, this authority was available in
terrorism investigations. Courts, however, put specific checks on these
warrants: They could only be authorized when notice would threaten life or
safety (including witness intimidation), endanger evidence, or incite
flight from prosecution. It was a limited and extraordinary power.

The Patriot Act greatly expanded potential justifications for delay. The
criminal code now allows secret search warrants whenever notice would
"jeopardize" an investigation or "delay" a trial -- extremely broad
rationales. The exception has become the rule. Congress should remove that
catch-all justification and impose strict monitoring on the use of these
secret warrants.

The other primary problem is the "library records" provision, Section 215.
This amended a minor section of the 1978 Foreign Intelligence Surveillance
Act, which created a specialized court for the review of spy-hunting
surveillance and search requests. This "business records" section allowed
agents to seize personal records held by certain types of third-parties,
including common carriers and vehicle rental companies. The Patriot Act
made two changes to this relatively limited power: It allowed the seizure
of any "tangible thing" from any third-party record holder (including
medical, library, travel and genetic records); and it removed the
particularized suspicion required in the original statute.

Pre-2001, investigators had to show "specific and articulable facts" -- a
standard much lower than criminal probable cause -- that a target was a spy
or terrorist. Now, that already low standard has been lowered further.
Agents simply certify to the intelligence court that the records desired
are relevant to an investigation -- any investigation -- and the judge has
no real authority to question that assertion, rendering judicial review
meaningless.

Reformers on the left and right want two fixes to this section. First,
reinstall the individualized suspicion requirement. This reflects the
Fourth Amendment notion that the government cannot invade privacy and
gather evidence unless it has reasonable suspicion that one has done wrong.
The proposed "fix" would retain the section's broad "tangible things"
scope, but with a safeguard against abuse. The authorities would still be
able to go to a criminal grand jury to demand the production of the same
records, providing additional flexibility for counterterrorism work.
Second, Congress should require additional reporting requirements.

There are other refinements desired by the Act's critics. The new
definition of domestic terrorism in Section 802 can be used by prosecutors
to turn on an array of invasive new authorities, including broad
asset-forfeiture powers, even when the underlying crime does not rise to
the level of "terrorism." The preferred legislative reform keeps the
definition, but links it to specific crimes like assassination or
kidnapping.

Reasonable critics of the expansive provisions of the Patriot Act, on both
sides of the aisle and in both Houses, have introduced legislation that
would implement these modest changes. Far from gutting the Act, these would
secure the important powers of the law, but place modest limits on their
use. For most of us who voted for the Act, what sealed the deal was the
inclusion of provisions that would require us to take a sober second look
at the most contentious provisions in the Act by the end of 2005, before
reauthorizing them. That time is coming, and the Justice Department does
not want to lose the emergency powers it won in the aftermath of 9/11. But
Congress should resist its overtures, move forward on the sunsets, and
enact additional Patriot fixes if it believes them needed.

Mr. Barr is a former Republican congressman.


-- 
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R. A. Hettinga <mailto: rah at ibuc.com>
The Internet Bearer Underwriting Corporation <http://www.ibuc.com/>
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'

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