April 11, 2005
By Heather Mac Donald
THE anti-Patriot Act de ception campaign continues at full throttle. The hearings on the law's reauthorization, now under way, offer the Bush administration an important opportunity to set the record straight. In particular, it's time to put the "slippery slope" argument to rest.
Right- and left-wing libertarians have joined together in a new group, "Patriots to Restore Checks and Balances," dedicated to dismantling major portions of the law. They routinely argue that any commonsensical reform of the law-enforcement status quo will send the nation hurtling toward government tyranny.
Yet the Patriot Act's most controversial provision - section 213, which lets the government delay notice of a search - exposes this argument as false.
Say the FBI wants to plumb Mohammad Atta's hard drive for evidence of a nascent terror attack. If a federal agent shows up at his door and says: "Mr. Atta, we have a search warrant for your hard drive, which we suspect contains information about the structure and purpose of your cell," guess what happens next. Atta tells his cronies back in Hamburg and Afghanistan: "They're on to us; destroy your files - and the infidel who sold us out." The government's ability to plot out that branch of Al Qaeda is finished.
To avoid torpedoing preemptive investigations of terrorist or criminal plans, section 213 lets the government ask a judge for permission to delay notifying the target of a search that his property has been examined. The judge can grant the delayed notice request only if revealing the search would risk the destruction of evidence, or put a witness's life at risk, or seriously jeopardize an investigation, among other reasons. The government can delay notifying the subject only for a "reasonable" period of time; eventually officials must tell Atta that they inspected his hard drive.
The crusade against this commonsensical rule has been unrelenting. And the favorite conceit used against it is the slippery slope, the cornerstone of libertarian thought. "Give power to government, and it will be misused," explained the American Conservative Union's David Keene on NPR's "On Point" (during a debate in which I participated).
Well, no it won't, as the unknown history of 213 demonstrates. The power to delay notice of a search does not originate with the Patriot Act. For decades, federal judges across the country have granted government agents in criminal cases the leeway to delay notice under exceptional circumstances. Section 213 merely codifies those judicial precedents in statutory form.
If allowing delayed notice opened the way toward tyranny, the government by now would have taken its delayed notice power and done away with notice entirely. Every search would be permanently secret. And the libertarians would have examples aplenty of the government abuse that has flowed from the delayed notice capacity. But they have no such evidence. They have pointed to no case of misuse over the last two decades of the notice authority.
In short, their argument against section 213 remains purely speculative: It could be abused. But there's no need to speculate; the historical record refutes the claim.
There is a slippery-slope problem in terror investigations - but it runs the other way. Going back to the 1970s, libertarians of all political stripes have piled restriction after restriction on intelligence-gathering, even preventing two anti-terror FBI agents from collaborating on a case if one was an "intelligence" investigator and the other a "criminal" investigator. By the late '90s, the bureau worried more about avoiding a pseudo-civil liberties scandal than about preventing a terror attack. No one demanding the ever-more Byzantine protections against hypothetical abuse asked whether they were exacting a cost in public safety. We know now that they were.
The libertarian certainty about looming government abuse is a healthy instinct; it animates the Constitution, after all. But we shouldn't take it too far. If all public power led ineluctably to authoritarian control, we should not risk forming a government. It turns out, however, that checks and balances actually work. And history does not always repeat itself. Government can learn from its mistakes.
The FBI's institutional culture has changed radically from the freewheeling 1950s and 1960s, something the anti-government fear-mongers never acknowledge. Criminal and terror investigators have internalized the norms of restraint and respect for privacy. Robert Mueller's FBI bears zero resemblance to J. Edgar Hoover's.
The debate about reauthorizing the Patriot Act should be full-throated and vigorous. Defenders of the act should also affirm that government power to protect citizens is fully compatible with liberty and need not lead to abuse, thanks to the constitutional framework that retains its vitality to this day.
Heather Mac Donald is a contributing editor at the Manhattan Institute's City Journal. Adapted from the CJ Web site (city-journal.org).
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