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.
With regard to both the business records and delayed notification sections of the Patriot Act (among others), the stance taken by the American Civil Liberties Union and like-minded critics seems to have an ulterior motive. They are not only opposed to such legislation in the Patriot Act. They appear intent on reopening settled case law regarding the use of these authorities with respect to crimes unrelated to terror.
The Congress should not encourage, let alone facilitate, such efforts by holding open the Patriot Act for further revision and adulteration. The original Patriot Act as a whole infringed only modestly on our civil liberties and did not meaningfully intrude on the privacy rights of law abiding Americans. We need to keep in mind, moreover, that if its precautions fail to prevent some further terrorist attack, we are likely to see impassioned demands for greater security measures, at the expense of our freedoms. Since few, if any of us relish that prospect, we need to make sure the Patriot Act retains its core provisions and authorities – and remains an effective tool for securing the home front in the War for the Free World.
Frank Gaffney Jr. is the founder and president of the Center for Security Policy and author of War Footing: 10 Steps America Must Take to Prevail in the War for the Free World .
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