Shortly after the terrorist attacks of September 11, 2001, both Congress and the Bush Administration examined the legal tools available to investigators and prosecutors in the fight against terrorism.
What we found was disturbing and in some cases appalling. Outdated restraints impaired law enforcement’s ability to gather, analyze, and disseminate critical intelligence. Rules written in the era of rotary telephones were woefully inadequate against al Qaeda’s exploitation of cell phones, voice mail and the Internet. Criminal penalties for terrorist violence were often more lenient than those for simple assault. It was even unclear whether providing expert advice and assistance to attackers - for example, helping to weaponize anthrax - was illegal. Local police could collect DNA samples from convicted burglars, but federal officials had no such authority for terrorists who might have bombed the same buildings.
Perhaps the worst problem was a set of formal and informal policies that prevented law enforcement agencies from sharing information with one another. FBI Director Robert Mueller described the impact that these information-sharing barriers had on investigations:
“An (FBI) agent investigating the intelligence side of a terrorism case was barred from discussing the case with an agent across the hall who was working the criminal side of that same investigation. For instance, if a court-ordered criminal wiretap turned up intelligence information, the criminal investigator could not share that information with the intelligence investigator - he could not even suggest that the intelligence investigator should seek a wiretap to collect the information for himself.”
The Patriot Act was written to resolve these kinds of problems and provide law enforcement and intelligence agencies the new tools they need to fight a new adversary. Among other provisions, it streamlined the process for obtaining search warrants in multiple jurisdictions, making it easier to track suspects who are constantly on the move. And it raised criminal penalties for not only perpetrating, planning and otherwise abetting attacks, but also for hoaxes that can cause nearly as much economic damage.
Since the Act became law on October 26, 2001 - six weeks after the fall of the Twin Towers - four different terrorist cells have been broken up in the United States alone, in Buffalo, Detroit, Seattle and Portland. As of May 5, 2004, the Justice Department had charged 310 defendants with criminal offenses as a result of post-9/11 terrorism investigations, and more than half have already been convicted. Praise for the Patriot Act has come not only from those like FBI Director Robert Mueller, from whom it might be expected, but also the chairman of the 9/11 Commission, former New Jersey Governor Thomas Kean, and even former Clinton administration Attorney General Janet Reno, who said “everything that’s been done in the Patriot Act has been helpful.”
Not that there aren’t critics, notably the American Civil Liberties Union and some other activist groups. But the Patriot Act was carefully crafted to guarantee protection for civil liberties, and is subject to ample oversight. A report filed in January by the inspector general of the Justice Department - an appointee of President Clinton - found no incidents in which the Patriot Act was used to abuse civil rights or civil liberties.
Even so, a bill has been introduced in Congress that would take away many of the Patriot Act’s most important tools, including wiretaps on all phones used by suspects who change them repeatedly to avoid surveillance, and subpoena power for businesses, even though such authority exists for other criminal investigations, like drug trafficking and health care fraud. This is the provision that would allow law enforcement agencies to obtain library records such as the books checked out by the Unabomber, Ted Kaczynski. Repealing it would truly be a step backward, as we know that the 9/11 hijackers used library computers to coordinate their attack via email.
Sixteen critical provisions of the Patriot Act are due to expire at the end of next year. It is important that they be renewed. In fact, it’s hard to think of a higher priority.