Preserve the Patriot Act

Dec 12, 2005
by Frank J. Gaffney, Jr.

Article Excerpt:

All the Patriot Act did was make business records (including those maintained by libraries) available on roughly the same terms in national security cases as they have long been in criminal cases.

The reason for this should be obvious: It makes no sense to enshrine libraries as safe havens for terrorist planning.

In fact, as we now know, many of the September 11 hijackers used American and European libraries for preparation in the run-up to the attacks. Relevant literature (such as bomb manuals and jihadist materials) has been a staple of terrorism prosecutions for more than a decade. Privacy extremists of organizations like the American Civil Liberties Union (ACLU) have nonetheless reacted to the Patriot Act’s much-needed business records law as if the Gestapo had seized office in the United States.

Similarly, the Patriot Act did not – as its critics would have us believe – create new and unsavory “sneak-and-peek” warrants. It does, however, allow agents to search premises but delay notification of the search to subjects of a terrorism investigation.

The Patriot Act’s notification provision is no different in principle from the legal notice that was previously required to be given to persons intercepted in a court-ordered wiretap. In such situations, notification of the target has routinely been delayed for weeks or months after the eavesdropping ends.

Doing so can be absolutely critical to the arrest and prosecution of suspected perpetrators: Delayed notification allows the government to complete its investigation without giving the subjects the sort of heads-up that would certainly cause them to flee or destroy evidence.

What the Patriot Act did, in the so-called “sneak-and-peek” arena, was to establish consistent standards that the federal courts must follow in determining whether to permit delayed notification. Previously, a hodge-podge of different rules were applied in various jurisdictions. This is precisely the sort of fairness and equal protection Congress should provide – yet, it has been criticized sharply for doing it in the Patriot Act.

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