Jon Kyl, April 11, 2005

Last year I introduced legislation that would make permanent all of the major sections of the USA Patriot Act that are scheduled to expire at the end of this year. Last week, Attorney General Alberto Gonzales and FBI Director Robert Mueller, testifying before the Senate Judiciary Committee, urged Congress to renew the act and provided a great deal of supportive evidence.

The most critical function of the act, which was passed in response to the September 11, 2001 terrorist attacks, has been to break down the historical wall between traditional criminal and intelligence-related investigations. But it has also provided new and better legal tools to law enforcement agencies for wiretapping, executing search warrants, and in many other areas where previous law was either simply inadequate to begin with, or rendered obsolete by the nature of modern terrorism and technological advances like cell phones, voice mail and the Internet.

FBI Director Robert Mueller has repeatedly testified that the act’s provisions have proven extraordinarily beneficial in the war on terrorism and have been directly responsible for many counterterrorism successes. Clinton Administration Attorney General Janet Reno agrees, stating publicly that "everything that’s been done in the Patriot Act has been helpful." Still, there has been a considerable amount of criticism of the act from people who wonder whether its provisions might be abused. There is much misinformation about the act, particularly sections 213 and 215:

Section 213 of the Patriot Act codifies judicial common law, allowing investigators to delay giving notice to the target that a search warrant has been executed against his property if a court finds reasonable cause to believe that immediate notice may result in: endangering an individual; flight from prosecution; destruction of evidence; intimidation of potential witnesses; or if such notice would otherwise seriously jeopardize an investigation or unduly delay a trial. Notice must still be provided "within a reasonable period" of the warrant’s execution, though this period may be extended by the court for good cause.

The need for such authority is obvious: it allows investigators to uncover specific information about a terror suspect’s activities or associates without tipping their hand. There would be no point in conducting a wiretap, for example, if the target had to be immediately informed that his conversations were being monitored. Likewise, if immediate notice were required after every kind of search, many suspects would flee the country, destroy computer files, alert associates, injure or kill witnesses, or simply accelerate a planned attack.

Although critics such as the American Civil Liberties Union have called section 213 "sneak and peek" and decried it as a "sea change" in U.S. law, the reality is that the U.S. Supreme Court established 25 years ago that this procedure is constitutional, and has consistently reaffirmed this view. In fact, in a 1979 case, the Court specifically derided the argument that delayed-notice searches are unconstitutional as "frivolous." Perhaps one reason was that, according to the Justice Department, the most common period of delay of notice authorized has been a mere seven days.

Section 215 relates to subpoena authority for business records, extending to "terrorism" the types of crimes for which so-called business records can be sought. The law has always recognized that book store and library records are included. To obtain such rescords, a subpoena must be pre-approved by a judge, which means that the frequently-cited fear of "the FBI investigating someone simply because of the books that he borrows from a library" is false. As an added protection against abuse, the Patriot Act requires that the FBI "fully inform" the House and Senate Intelligence Committees on all use of such authority. Again, this authority is not new -- federal investigators have long used the grand jury subpoena to obtain bookstore records. As the Washington Post noted in a September 11, 2003 editorial, investigative authority to review library records "existed prior to the Patriot Act; the law extends it to national security investigations, which isn’t unreasonable."

Finding out whether a suspect checked out a book on bomb making is a reasonable investigative technique. Moreover, it has been well established that terrorists and spies - the September 11th hijackers, for example - have used libraries to plan and carry out activities that threaten U.S. national security, among other ways by using their Internet access to communicate by email. Given this reality, it would be foolish to place libraries and bookstores off-limits to investigations.

More broadly, given the demonstrated success of the Patriot Act in making us more secure, and the paucity of actual (as opposed to hypothetical) complaints of abuse, it would surely be unwise to start rescinding its major provisions.

Senator Jon Kyl, a Republican, represents Arizona in the U.S. Senate. He serves on the Senate Judiciary Committee, the Finance Committee, and the Energy and Natural Resources Committee.