National Review: 1984 in 2003?: Fears about the Patriot Act are misguided

Has the war on terrorism become a war on Americans' civil liberties? A coalition of left- and right-wing groups fears so, and has been working hard to restrain the law-and-order impulses of the Bush administration. It's a coalition that includes the ACLU and the American Conservative Union, Nat Hentoff and William Safire, John Conyers and Dick Armey.

The coalition started to form in 1996, when Congress passed an anti- terrorism bill. But it really took off after September 11. Members of the coalition believe that Washington's legislative response -- called, rather ludicrously, the "USA Patriot Act," an acronym for "Uniting and Strengthening America by Providing Appropriate Tools to Intercept and Obstruct Terrorism" -- was a too-hastily conceived, excessive reaction to the atrocities.

Since then, the coalition has regularly found new cause for alarm. It has protested the administration's plans for military tribunals, the president's designation of "enemy combatants," and the Pentagon's attempts to consolidate data under a program called "Total Information Awareness." This spring, the civil libertarians of left and right worked together again to block Sen. Orrin Hatch's attempt to make permanent those provisions of the Patriot Act which are set to expire next year. They have organized, as well, against the possibility that the Justice Department will propose another dangerous anti-terror bill ("Patriot II").

The civil libertarians have had some success. They forced modifications in the Patriot Act before its enactment. They have inspired some cities to pass resolutions banning their employees from cooperating with federal authorities to implement provisions of the act that violate the Constitution. (Officials in other cities are, presumably, free to violate the Constitution at will.) They imposed legislative restrictions on Total Information Awareness. They have inhibited the administration from proposing anti-terror measures that would generate adverse publicity.

They themselves have gotten favorable publicity. It's an irresistible story for the press: the lion and the lamb lying down together. The press has tended to marvel at the mere existence of the coalition. They have not been quick to note that there is a larger bipartisan coalition on the other side, which is why the civil libertarians have been losing most of the battles. The Patriot Act passed 357-66 in the House and 98- 1 in the Senate. In early May, the Senate voted 90-4 to approve another anti-terror provision -- making it easier to investigate "lone wolf" terrorists with no proven connection to larger organizations -- that the civil libertarians oppose.

More important, the press has not adequately scrutinized the civil libertarians' claims. This has kept the debate mired in platitudes about liberty and security. It has also reduced the incentive for the civil libertarians to do their homework, which has in turn made their case both weaker and more hysterical than it might otherwise have been.

Take the attack on TIPS, the Terrorist Information and Prevention System. This abortive plan would have encouraged truckers, deliverymen, and the like to report suspicious behavior they observed in the course of their work. How effective this idea would have been is open to question. Most of the criticism, however, echoed former Republican congressman Bob Barr, who said that TIPS "smacks of the very type of fascist or communist government we fought so hard to eradicate in other countries in decades past."

But of all the measures the administration has adopted, it's the Patriot Act (along with the possible Patriot II) that has inspired the most overheated criticisms. When it was passed, the Electronic Frontier Foundation wrote that "the civil liberties of ordinary Americans have taken a tremendous blow with this law." The ACLU says the law "gives the Executive Branch sweeping new powers that undermine the Bill of Rights." But most of the concerns about Patriot are misguided or based on premises that are just plain wrong.

Roving wiretaps. Thanks to the Patriot Act, terrorism investigations can use roving wiretaps. Instead of having to get new judicial authorization for each phone number tapped, investigators can tap any phone their target uses. This is important when fighting terrorists whose MO includes frequently switching hotel rooms and cell phones. It's a commonsense measure. It's also nothing new: Congress authorized roving wiretaps in ordinary criminal cases back in 1986. It's hard to see Patriot as a blow to civil liberties on this score.

Internet surveillance. Libertarians have been particularly exercised about Patriot's green light for "spying on the Web browsers of people who are not even criminal suspects" -- to quote Reason editor Nick Gillespie. This is a misunderstanding of Patriot, as George Washington University law professor Orin Kerr has demonstrated in a law-review article. Before Patriot, it wasn't clear that any statute limited the government's, or even a private party's, ability to obtain basic information about electronic communications (e.g., to whom you're sending e-mails). Patriot required a court order to get that information, and made it a federal crime to get it without one.

Kerr believes that the bar for getting a court order should be raised. But he notes that Patriot made the privacy protections for the Internet as strong as those for phone calls and stronger than for mail. Patriot's Internet provisions, he concludes, "updated the surveillance laws without substantially shifting the balance between privacy and security."

James Bovard traffics in another Patriot myth in a recent cover story for The American Conservative: that it "empowers federal agents to cannibalize Americans' e-mail with Carnivore wiretaps." Carnivore is an Internet surveillance tool designed by the FBI. Don't be scared by the name. The FBI's previous tool was dubbed "Omnivore," and this new one was so named because it would be more selective in acquiring information, getting only what was covered by a court order and leaving other information private. But even if Carnivore is a menace, it's not the fault of Patriot. As Kerr points out, "The only provisions of the Patriot Act that directly address Carnivore are pro-privacy provisions that actually restrict the use of Carnivore."

Hacking. Also in Reason, Jesse Walker writes that Patriot "expands the definition of terrorist to include such non-lethal acts as computer hacking." That's misleading. Pre-Patriot, an al-Qaeda member who hacked the electric company's computers to take out the grid could not be judged guilty of terrorism, even if he would be so judged if he accomplished the same result with a bomb. Hacking per se isn't terrorism, and Patriot doesn't treat it as such.

Sneak and peek. The ACLU is running ads that say that Patriot lets the government "secretly enter your home while you're away . . . rifle through your personal belongings . . . download your computer files . . . and seize any items at will." Worst of all, "you may never know what the government has done." Reality check: You will be notified if a sneak-and-peek search has been done, just after the fact -- usually within a few days. The feds had the authority to conduct these searches before Patriot. A federal judge has to authorize such a search warrant, and the warrant has to specify what's to be seized.

Library records. Bovard is appalled that Patriot allows "federal agents to commandeer library records," and the American Library Association shares his sentiment. Patriot doesn't mention libraries specifically, but does authorize terrorism investigators to collect tangible records generally. Law enforcement has, however, traditionally been able to obtain library records with a subpoena. Prof. Kerr suggests that because of Patriot, the privacy of library records may be better protected in terrorism investigations than it is in ordinary criminal ones.

The civil libertarians deserve some credit. Their objections helped to rid Patriot of some provisions -- such as a crackdown on Internet gambling -- that didn't belong in an anti-terrorism bill. Armey added the Carnivore protections to the bill. The law, as finally enacted, places limits on how much officials may disclose of the information they gain from Internet and phone surveillance. Moreover, the civil libertarians make a reasonable demand when they ask that Patriot be subject to periodic re-authorizations, so that Congress can regularly consider making modifications.

The civil libertarians rarely acknowledge the costs of legal laxity: Restrictions on intelligence gathering may well have impeded the investigation of Zacarias Moussaoui, the "twentieth hijacker," before 9/11. David Cole, one of the movement's favorite law professors, goes so far as to lament that U.S. law makes "mere membership in a terrorist group grounds for exclusion and deportation."

And while civil libertarians may scant the value of Patriot, terrorists do not. Jeffrey Battle, an accused member of a terrorist cell in Portland, complained about Patriot in a recorded phone call that was recently released in court. People were less willing to provide financial support, he said, now that they were more likely to be punished for it.

Speaking of the administration's civil-liberties record, Al Gore said last year that President Bush has "taken the most fateful step in the direction of [a] Big Brother nightmare that any president has ever allowed to occur." Dick Armey worries about "the lust for power that these people in the Department of Justice have." The civil-liberties debate could use a lot less rhetoric of this sort -- and a lot more attention to detail.

A calm look at the Patriot Act shows that it's less of a threat to civil liberties than, say, campaign-finance reform. A lot of the controversy is the result of confusion. Opponents of the Patriot Act are fond of complaining that few people have bothered to read it. No kidding.