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Remember when the USA Patriot Act was seen as a common-sense counterterrorism tool? Congress enacted the law shortly after the 9/11 attacks by large bipartisan majorities. It wasn't even close.
And for good reason: The Patriot Act made relatively modest changes to the law as it stood on Sept. 11, 2001. The act simply let terrorist- and spy-hunters use some of the same tools regular cops have had in their arsenal for decades. And it updated existing laws to make them more effective against terrorist threats.
As President Obama forges new security policies, let's hope he keeps the Patriot Act intact. The act works. According to the Justice Department, the Patriot Act helped take down Al Qaeda cells in Buffalo, N.Y. and Portland, Ore. Prosecutors used it to convict a Floridian who pled guilty to raising money for a terrorist group called Palestinian Islamic Jihad. And The act led to the conviction of a man who threatened to torch a Texas mosque.
Despite those successes, the act has become a civil libertarian bugaboo. We've all heard how the act poses a dire threat to liberty and privacy. Federal agents can search your house without ever telling you. The feds can force the phone company to reveal whom you've been calling, and they can rummage through library records to find out what books you've been reading. They can even brand you a terrorist and throw you in jail if you get in an argument with a flight attendant.
The daily reality is much less dramatic – and much less frightening.
Let's start with the flight attendants. It's been illegal to interfere with airline crews since JFK was president. The Patriot Act made it a crime to attempt or conspire to do what the law already barred.
The basic idea behind the change is prevention. We shouldn't have to wait for a passenger to take a crew member's life before we throw the book at him. We should be able to prosecute the steps he takes along the way – ignoring an order to return to his seat, pulling a box cutter from his pocket, and so on.
The Patriot Act's "sneak and peek" authority is also pretty long in the tooth. For decades, federal courts recognized special circumstances in which police may hold off on notifying a suspect that they've searched his house.
As the Supreme Court stressed in 1967, immediate notice could "provoke the escape of the suspect or the destruction of critical evidence." The Patriot act merely codified these judicial decisions and adopted a uniform, nationwide standard.
Police still need a warrant before conducting a search, and they can't decide to delay notice by themselves. On both counts, a judge has to give the go ahead first. Plus, cops ordinarily have to tell the suspect about the search within 30 days.
Then there's the much-maligned "libraries" provision. In garden-variety criminal cases, grand juries are able to subpoena all kinds of documents from banks, phone companies, gas stations, and other businesses. The Patriot Act established a similar tool for terrorism investigations. And the terrorism rules are actually more protective of civil liberties.
Federal prosecutors can issue grand jury subpoenas basically unilaterally, but the Patriot Act requires the FBI to get a court order first. Also, the act expressly protects First Amendment rights – a topic about which the grand jury rules are conspicuously silent.
It's true that the Patriot Act conceivably could be applied to libraries and bookstores. But that's a lot less alarming than it might sound. Grand juries issued subpoenas to a half-dozen libraries in the Unabomber investigation. And a grand jury in New York demanded library records during the 1990 Zodiac gunman investigation. If subpoenas are good enough for domestic criminals, they ought to be good enough for foreign terrorists.
That's not to say The Patriot Act is perfect. As with any law, there's always a risk of abuse.
In March 2007, an internal Justice Department audit found that the FBI had misused its power under the Patriot Act to gain access to terrorism suspects' telephone records. And newspapers have reported that relatively minor in-flight disturbances have led to passengers facing federal charges of interfering with flight crew. Abuses like these are not to be taken lightly.
But the solution is not to neuter the Patriot Act. The act remains a vital weapon in the struggle against global terrorism.
Perhaps the best way to ensure that the act remains faithful to fundamental American values is to insist on greater transparency and oversight: More hearings on Capitol Hill; more audits; and, above all, more disclosures to the public.
Policymakers in the new administration and in Congress – and ordinary Americans like us – should keep tabs on counterterrorism agents to see that they don't abuse the powers they've been given. But we also need to make sure agents keep the tools they need to get the job done. Al Qaeda hasn't given up and neither should we.
Nathan A. Sales is a law professor at George Mason University. He previously served at the Department of Justice (where he helped write the Patriot Act) and the Department of Homeland Security.
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