| The proverbial rubber is about to meet the road. This week, the U.S. Congress will determine whether the USA Patriot Act – the most important piece of domestic security legislation adopted since 9/11 – will be reenacted in a slightly weakened form, or allowed to have a number of its key provisions lapse. Since the consequences of the latter would be manifestly detrimental to the War for the Free World, legislators opposed to the Act have offered to extend it for a short period – a gambit they hope will allow them to dumb it down still further. Make no mistake, however: The effect of additional delay and more negotiations will not be to improve either the bill or the national security. To the contrary, it would likely jeopardize both. That would be particularly true if the Patriot Act’s most vociferous critics on the Left and their less numerous (and most unlikely) bedfellows on the Right were to have their way. They have tended to characterize the Act as an assault on the basic freedoms enshrined in the Bill of Rights and have sought far-reaching changes in the tools it provides law enforcement to detect and prevent terrorist plots inside the United States. In reality, the Patriot Act is an eminently sensible overhaul of the government’s antiquated counter-terror arsenal, an overhaul that reflects the realization that we cannot hope to fight a 21st century war using 20th century legal instruments. Consider two of its elements whose repeal the critics have most insistently demanded: 1) the so-called “library records” provision (Section 215) and 2) the authorization of what have been derided as “sneak-and-peek” search warrants (Sec. 213). The dust-up over government access to library information is truly a manufactured controversy. For one thing, libraries are not mentioned anywhere in the pertinent Patriot Act provision. Moreover, law enforcement has been authorized for decades in ordinary criminal cases to subpoena library records (along with any other business records). This has not translated into any noticeable impact on Americans’ reading habits. 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. Continued... |