April 10, 2005
The Calm After the Patriot Act Storm

By Steve Chapman

Last week, the Senate Judiciary Committee held hearings on the Patriot Act, reviving the long-running debate over the anti-terrorism law enacted in the wake of Sept. 11, 2001. A statement issued by the Justice Department said that "most of the voluminous Patriot Act is actually unobjectionable from a civil liberties point of view" and that "the law makes important changes that give law enforcement agents the tools they need to protect against terrorist attacks."

Oops. My mistake. That statement didn't come from the administration. It came from the American Civil Liberties Union.

For more than three years, critics have portrayed the Patriot Act as a ferocious assault on individual liberty and personal privacy. But with several provisions of the law set to expire at the end of 2005, it turns out that even the strongest critics don't want to change all that much. Maybe now it will be possible for Americans to consider the actual law itself and not the grotesque caricature it has become.

It's hard to think of a law with a worse reputation than this one. No fewer than 377 communities have passed resolutions condemning the Patriot Act, in addition to five states. Some have even urged public libraries and bookstores to destroy records that might be requested by the government under one controversial provision. Howard Dean called it "shameful."

The law continues to inspire overheated rhetoric from opponents on both the left and the right. A group called Patriots to Restore Checks and Balances, headed by former Rep. Bob Barr, R-Ga., denounced it recently, saying, "Our message is universal: Individual liberties are not negotiable, even in the face of terrorism."

You can't blame lobby groups for striking melodramatic poses to get attention. And there is clearly a market for such sentiments, even if they are not tethered to reality. But the danger posed by this law has always been largely mythical.

A lot of the outrage against the Patriot Act stemmed from unrelated actions taken by the Bush administration, especially the prolonged detention of many immigrants after the Sept. 11 attacks. A lot of it stemmed from distrust of Attorney General John Ashcroft, whose incendiary language confirmed suspicions that the government was overreacting.

But some parts of the law drew intense fire. One was the "sneak-and-peek" section, which allows law enforcement agents to enter a home to inspect papers, computers and the like, without informing the owner in advance. You would never know that the FBI and police have used such warrants for decades in criminal cases, such as that of Mafia boss John Gotti.

Nor would you know that these warrants are issued only if judges find there is a good reason to delay notification -- to prevent a suspect from fleeing, to preserve evidence or to avoid other damage to an investigation.

If sneak-and-peek searches were a horrible abuse, you'd expect the critics to demand they be abolished. In fact, the ACLU and its allies only want to slightly narrow the conditions under which they are allowed.

Then there is the section that lets federal agents obtain library records, among other things. This is usually portrayed as a naked attempt at thought control, by exposing Americans to punishment for reading the wrong books. But no one complained when the FBI investigated what materials had been checked out of a Montana library by suspected Unabomber Theodore Kaczynski, who was eventually arrested and convicted.

Here again, the point of the Patriot Act was to allow methods used against ordinary criminals to be used against foreign terrorists. As it happens, Attorney General Alberto Gonzales said last week that since the Patriot Act was passed, it has never been used to subpoena library records.

He still wants to keep this provision in case it's ever needed. And even the critics are agreeable, though they want to "refine" this section of the law "by requiring some individualized suspicion," as the ACLU explains.

That's a debatable position, but it's also a thoughtful and balanced one -- taking into account not only the need to protect privacy but the need to prevent a repetition of Sept. 11. Maybe it's the beginning of a more sober assessment of a law that federal prosecutors see as a vital weapon against terrorism.

It would have been nice if, over the last four years, we could have had a rational debate about the real Patriot Act and the real problems it addresses. But better late than never.

2005 Creators Syndicate

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Steve Chapman

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