The Patriot Act: Does It Actually Work?

October 21, 2009 • Commentary
This article appeared in the Los Angeles Times on October 21, 2009.

Well, I’m convinced: Terrorists are bad, wiretapping them is good, and catching them is better still. The Patriot Act should not be “repealed,” which I suppose makes it a good thing that nobody is seriously proposing to do so. But as I’d hate to disappoint readers with such a speedy acquiescence, perhaps we should make the debate a little more granular.

The Patriot Act is not really a “tool”; it’s a toolbox. And the debate currently unfolding in Congress is not over whether to take the box away; it’s about whether and how particular tools can be improved to safeguard civil liberties without unduly burdening terror investigations.

One specific tool mentioned is roving wiretap authority. We know these taps were indeed used in the recent investigation of alleged bomb plotter Najibullah Zazi. Fortunately, there is more or less unanimous agreement that investigators should continue to be able to use this authority. But there are a slew of important differences between the roving taps long available in criminal cases and those authorized under the framework of the Foreign Intelligence Surveillance Act — differences I laid out in some detail in a post at the Cato Institute’s website last week. Roving FISA warrants, for instance, may merely describe a target, rather than identifying one, as would be required in the criminal context. Given that FISA collection is already substantially broader than criminal taps, some have argued that the requirements should be tightened to preclude “John Doe” warrants that identify neither the target nor a specific communications facility. Since news reports indicate that Zazi was named as a potential Al Qaeda operative by a tip from Pakistani intelligence, there is no reason to think this kind of common‐​sense protection would have impeded his capture.

Equally common‐​sense checks have been proposed for other Patriot Act powers. All seek to protect the privacy of innocent Americans by strengthening oversight of these broad surveillance tools, and to foreclose indiscriminate dragnet collection of data by requiring some minimal rational grounds for believing that the information sought is linked to terror. What I’d like to hear, but never seem to, is some explanation of how such protections will put us at greater risk.

Instead, 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” specifically discussed 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, 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.

This is the first part in a three‐​part series.

Part I | Part II | Part III

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