United Liberty

Julian Sanchez of the Cato Institute and Jena Baker McNeill of the Heritage Foundation recently contributed a point/counterpoint on the USA PATRIOT Act for the Los Angeles Times.

McNeill writes:

The Patriot Act has helped law enforcement officials apprehend hundreds of suspects, and it isn’t just one provision of the act that has proved useful. For instance, the surveillance provision was used successfully in the Portland Seven investigation, which may well have prevented an attack on synagogues and Jewish schools. And while new information is still coming to light about the three recent alleged plots, it is very likely that Patriot Act provisions played major roles stopping at least one of the plans.

Perhaps to the shock of some, the Obama administration has been cool to the idea of repealing the Patriot Act. It may even support keeping key provisions intact. The likely cause of this support: The law works. It’s tough to argue with results, especially when American lives are at stake.

There are many misconceptions about what the act actually does. Simply put, it modernizes existing law enforcement tools and practices that existed before the act was passed in 2001. It makes it more difficult for terrorists to stay a step ahead of the law by switching cellphone or e-mail accounts. Its provisions free investigators to stop plots in their earliest stages, decreasing the likelihood that a plan would mature and become unstoppable. It also outlines methods for handling intelligence and investigations in areas the law did not adequately provide for, such as in cyberspace and cellphone communications.

Sanchez responds:

I mostly hear about the extent of the risk — which is real enough that it doesn’t need embellishment. One of those 26 disrupted “plots” you specifically discuss, Jena, involved the so-called Lackawanna Six. Though they had indeed trained in Afghanistan before 9/11, it is not remotely clear that they had any “plot” to “foil,” and there is precious little evidence that they had any intention of carrying out attacks on U.S. soil, let alone that they were preparing to launch “another 9/11.” Investigators pounced when one suspect made ominous reference to a “big meal” at an upcoming “wedding.” This appears to have been code for … a big meal at his wedding.

Nor is it obvious that new legislation was needed to allow sharing of information about the case between investigators. As the Office of Legal Counsel’s own internal memorandums make clear, the regulations imposed in the 1990s establishing a “wall” between criminal and intelligence investigations went “beyond what is legally required.” The problem, of course, is how to best permit information sharing without letting FISA be used as a pretext to evade the more stringent standards for criminal wiretaps. The Patriot Act struck one balance, which may or may not be the best one — but this seems an odd point to focus on so centrally in your argument, since it’s not among the Patriot Act changes targeted by any reform legislation I’ve seen.

Civil libertarians have some specific concerns about how particular Patriot Act powers are too broad or open to misuse, and propose specific changes that would address these concerns. It is no response to assert that the Patriot Act has been useful; what you need to explain is how any particular safeguard would have so diluted investigative powers that it would have frustrated an investigation and created a security harm outweighing the benefit to civil liberties. If you’d rather trade scary stories, that’s fine too — just let me know so I can buy a bag of marshmallows before our next round.

His snark aside, Sanchez hammers home his point well. If you want these powers, then justification for essentially gutting the Fourth Amendment must be explained to the American people.