Bob Barr

Patriot Fixes

November 12, 2004

The most common charge levied against critics of the Patriot Act -- one that Alberto Gonzales, the new face of Justice, is likely to repeat in his days ahead -- is that they're "misinformed." Well, as a former U.S. attorney appointed by President Reagan, a former CIA lawyer and analyst, and a former Congressman who sat on the Judiciary Committee, I can go mano a mano with any law-enforcement or intelligence official on the facts. And the facts say that the Patriot Act needs to be reviewed and refined by Congress.

Critics of the Act are not calling for full repeal. Only about a dozen of the 150 provisions need to be reformed; these, however, do pose singular threats to civil liberties. Here's how to bring them back in line with the Constitution.

The two most significant problems are sections 213 and 215. The first authorized the use of delayed-notification search warrants, which allow the police to search and seize property from homes and businesses without contemporaneously telling the occupants. The Justice Department often claims that this new statutory "sneak and peek" power is innocuous, because the use of such warrants was commonplace before. Actually, the Patriot Act's sneak and peek authority is a whole new creature. Before, law enforcement certainly engaged in delayed-notification searches, especially in drug investigations. Importantly, this authority was available in terrorism investigations. Courts, however, put specific checks on these warrants: They could only be authorized when notice would threaten life or safety (including witness intimidation), endanger evidence, or incite flight from prosecution. It was a limited and extraordinary power.

The Patriot Act greatly expanded potential justifications for delay. The criminal code now allows secret search warrants whenever notice would "jeopardize" an investigation or "delay" a trial -- extremely broad rationales. The exception has become the rule. Congress should remove that catch-all justification and impose strict monitoring on the use of these secret warrants.

The other primary problem is the "library records" provision, Section 215. This amended a minor section of the 1978 Foreign Intelligence Surveillance Act, which created a specialized court for the review of spy-hunting surveillance and search requests. This "business records" section allowed agents to seize personal records held by certain types of third-parties, including common carriers and vehicle rental companies. The Patriot Act made two changes to this relatively limited power: It allowed the seizure of any "tangible thing" from any third-party record holder (including medical, library, travel and genetic records); and it removed the particularized suspicion required in the original statute.

Pre-2001, investigators had to show "specific and articulable facts" -- a standard much lower than criminal probable cause -- that a target was a spy or terrorist. Now, that already low standard has been lowered further. Agents simply certify to the intelligence court that the records desired are relevant to an investigation -- any investigation -- and the judge has no real authority to question that assertion, rendering judicial review meaningless.

Reformers on the left and right want two fixes to this section. First, reinstall the individualized suspicion requirement. This reflects the Fourth Amendment notion that the government cannot invade privacy and gather evidence unless it has reasonable suspicion that one has done wrong. The proposed "fix" would retain the section's broad "tangible things" scope, but with a safeguard against abuse. The authorities would still be able to go to a criminal grand jury to demand the production of the same records, providing additional flexibility for counterterrorism work. Second, Congress should require additional reporting requirements.

There are other refinements desired by the Act's critics. The new definition of domestic terrorism in Section 802 can be used by prosecutors to turn on an array of invasive new authorities, including broad asset-forfeiture powers, even when the underlying crime does not rise to the level of "terrorism." The preferred legislative reform keeps the definition, but links it to specific crimes like assassination or kidnapping.

Reasonable critics of the expansive provisions of the Patriot Act, on both sides of the aisle and in both Houses, have introduced legislation that would implement these modest changes. Far from gutting the Act, these would secure the important powers of the law, but place modest limits on their use. For most of us who voted for the Act, what sealed the deal was the inclusion of provisions that would require us to take a sober second look at the most contentious provisions in the Act by the end of 2005, before reauthorizing them. That time is coming, and the Justice Department does not want to lose the emergency powers it won in the aftermath of 9/11. But Congress should resist its overtures, move forward on the sunsets, and enact additional Patriot fixes if it believes them needed.