It is at least ironic that in the run-up to the 10th anniversary of the 9/11 attacks there is renewed controversy about the USA Patriot Act. Some would view not with irony but cynicism Homeland Security Secretary Janet Napolitano’s statement that the threat of terrorism is at “its most heightened state” since 9/11. Either way, the current debate is informed on both sides by distrust and confusion. So let’s unpack the facts.
The House of Representatives did not vote against reauthorization of the Patriot Act. Instead, this week it voted 277 to 148 in favor of reauthorizing three key antiterrorism tools, two of which were from the Patriot Act. That vote, however, was insufficient because the bill moved through fast-track procedures that require a two-thirds supermajority.
The vote fell short not because of a groundswell of opposition from freshman Republicans from the Tea Party movement, as media outlets have breathlessly reported. Rather, Republicans provided only 26 of the 148 dissenting votes. And of the 52 House members who declared themselves as the Tea Party caucus, only eight voted nay. At the end of the day, the vote is simply about a significant number of traditional House members disagreeing with their president that renewing these three tools is essential to protect America and her people against terrorism.
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First is the “roving wiretap.” One need not be addicted to The Sopranos or The Wire to appreciate that drug traffickers and mobsters evade court-ordered wiretaps by switching phones. When that happens, the judge can authorize the police to follow the criminal’s various communication devices and not just tap his home landline. The Patriot Act allowed judges to do the same in terrorism investigations. There is little logic to requiring the judge to sign a new order each time a criminal switches phones. There is even less sense in not allowing the same tool, with the same protections, to combat terrorism as the law does to investigate ordinary crime.
The second provision up for reauthorization is Section 215 of the Patriot Act, the “library records” or “business records” provision. A police officer investigating, say, a check-kiting fraud can chase the paper trail by issuing a grand jury subpoena through the clerk of the court. Section 215 allows national-security investigators essentially to do the same thing in counterterrorism investigations, compel the production of business records (including library records). But this provision can only be used to obtain foreign intelligence information about non-U.S. persons, or to protect against international terrorism or clandestine intelligence activities. Indeed, unlike ordinary grand jury subpoenas issued by the court clerk, orders under Section 215 must be issued and supervised by a federal judge.
The final provision, the “lone wolf” authority, was not part of the Patriot Act but was enacted in 2004 in the Intelligence Reform and Terrorism Prevention Act. Before 9/11, national-security investigations were authorized only to investigate foreign countries or terrorist organizations. Lost in the cracks is the possibility of a solo agent, one who is not connected to a foreign nation or terrorist group. Congress fixed this crack and authorized investigations against a lone-wolf terrorist. Again, the scope is quite narrow. It applies only to non-U.S. persons engaged in “international terrorism,” and only foreign intelligence information may be obtained. The utility of this provision is obvious in the face of self-radicalizing foreign terrorists who are inspired by terrorist rhetoric, even if they don’t conspire with terrorist organizations. The damage is the same.
Now is not the time to celebrate prematurely or to let up on the defense.
For me, to describe these provisions is to illustrate their necessity and safeguards. That is why they were adopted overwhelmingly and reauthorized repeatedly. We have enjoyed a decade of security because of their utility and the vigilance of our counterterrorism efforts. Now is not the time to celebrate prematurely or to let up on the defense. And when we do so, let’s base the decision on facts and not fear.
Viet D. Dinh is a professor of law at Georgetown University Law Center and principal of Bancroft PLLC. Dinh served as U.S. assistant attorney general for legal policy at the U.S. Department of Justice from 2001 to 2003.
