The Zacarias Moussaoui Protection Act

Rich Lowry
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Posted: Aug 25, 2003 12:00 AM

The war on terror has finally, as some critics always warned it would, whipped up a dangerous hysteria. It just so happens that the hysteria has taken hold among critics of the war on terror. They argue that the USA Patriot Act is a combination of the Alien and Sedition Acts and Kristallnacht, in a smear campaign that threatens to roll back policies that have made Americans safer after Sept. 11.

The campaign includes over-the-top editorial writers (The Cleveland Plain Dealer calls the act "the seed stock of a police state"), raving civil libertarians (American Civil Liberties Union: "a disturbing power") and chest-beating presidential candidates (Howard Dean: erodes "the rights of average Americans"). According to Wisconsin's Democratic Sen. Russ Feingold, you should sell your stock in Amazon.com -- the Patriot Act has made Americans "afraid to read books."

The challenge to critics should be this: Name one civil liberty that has been violated under the Patriot Act. They can't, which is why they instead rely on hyperbole in an increasingly successful effort to make the Patriot Act a dirty phrase.

Many of the new powers under the act -- such as "the roving wiretap," which allows the government to continue monitoring a target who switches phones -- aren't really new. They give counterterrorism investigators the same powers investigators already have in mob cases. Opponents of the act must explain why Mohammad Atta should have greater freedom from surveillance than Tony Soprano.

The fact is that federal authorities cannot do any of the nasty things under the Patriot Act that critics complain about -- electronic surveillance, record searches, etc. -- without a court order and a showing of probable cause. A federal judge has to sign off on any alleged "violation of civil liberties."

Two particular provisions of the act rile critics. The Republican-controlled House -- demonstrating that uninformed hysteria is bipartisan -- recently voted to ban funding for Section 213 of the law. Under Section 213, law enforcement can delay notifying a target that his property has been searched. These delayed-notification searches require a court order, and they can be used only when immediate notification would jeopardize an investigation.

Such searches already existed prior to the passage of the Patriot Act, and the Supreme Court has upheld their constitutionality. Federal counterterrorism investigators have asked for delayed searches roughly 50 times during the past two years, and the average delay in notification has been about a week -- hardly totalitarianism.

Another target of critics is Section 215. It allows investigators to seize documents -- including, theoretically, library records -- from a third party if they bear on a terrorism investigation. The ACLU says that this means the FBI has the power to "spy on a person because they don't like the book she reads." But this is another power that already existed. Grand juries have always been able to subpoena records if they are relevant to a criminal investigation. The Patriot Act extends this power to counterterrorism investigators and requires a court order for it to be used.

Critics want to eviscerate these sections of the act, and more. They should bundle their proposals together and call them "The Zacarias Moussaoui Protection Act," after "the 20th hijacker," whose computer wasn't searched prior to Sept. 11 due to civil-liberties concerns. We have already forgotten the importance of aggressive, pre-emptive law enforcement. The locus of forgetfulness is the Democratic presidential field, as Rep. Dick Gephardt, Sen. John Edwards and Sen. John Kerry all voted for the Patriot Act and now attack Attorney General John Ashcroft for having the temerity to use it.

Out on the Democratic hustings, it's as if Sept. 11 never happened. Of course, no organization contributed so much to the lax law enforcement that made possible the murder of 3,000 Americans that day than the ACLU. Mohammed Atta and Co. should have remembered it in their prayers as they screamed toward their targets. If the ACLU gets its way on the Patriot Act, some future successful terrorists will want to remember it in their prayers as well.