Testimony By Heather Mac Donald on the Oversight Hearing on the Patriot Act

Thank you, Mr. Chairman and members of the Committee.  My name is Heather Mac Donald. I am a senior fellow at the Manhattan Institute for Policy Research, a think tank in New York City. I have written extensively on homeland security for the Washington Post, the Wall Street Journal, the Los Angeles Times, and City Journal, among other publications. I appreciate the opportunity to testify today on this important topic.

The most powerful weapon against terrorism is intelligence. The United States is too big a country to rely on physical barriers against attack; the most certain defense is advanced knowledge of terrorist plans.

In recognition of this fact, Congress amended existing surveillance powers after 9/11 to ready them for the terrorist challenge. The signal achievement of these amendments, known as the Patriot Act, was to tear down the regulatory wall that had prevented anti-terrorism intelligence agents and anti-terrorism criminal agents from sharing information. The Patriot Act made other necessary changes to surveillance law as well: it extended to terrorism investigators powers long enjoyed by criminal investigators, and it brought surveillance law into the 21st century of cell phones and e-mail. Where the act modestly expands the government’s authority, it does so for one reason only: to make sure that the government can gather enough information to prevent terrorism, not just prosecute it after the fact.

Each modest expansion of government power in the Patriot Act is accompanied by the most effective restraint in our constitutional system: judicial review. The act carefully preserves the traditional checks and balances that safeguard civil liberties; four years after its enactment, after constant monitoring by the Justice Department’s Inspector General and a host of hostile advocacy groups, not a single abuse of government power has been found or even alleged.

This record of restraint is not the picture of the act most often presented in the media or by government critics, however. The Patriot Act has been the target of the most successful disinformation campaign in recent memory. From the day of its passage, law enforcement critics have portrayed it as an unprecedented power grab by an administration intent on trampling civil rights.

As lie after lie accumulated, the administration failed utterly to respond. As a result, the public is wholly ignorant about what the law actually does. Hundreds of city councils have passed resolutions against the act; it is a safe bet that none of them know what is in it. The Committee is to be congratulated for taking the time to get the truth out.

Though the charges against the Patriot Act have been dazzling in their number, they boil down to four main strategies. This morning, I would like to dissect those strategies, with particular reference to the most controversial section of the act: section 213. Section 213 allows the government to delay notice of a search, something criminal investigators have been allowed to do for decades. Discredit the anti-Patriot Act strategies against section 213, and you have the key for discrediting them in every other context.

--Strategy #1: Conceal Legal Precedent.

Here’s how section 213 works: Let’s 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," Atta will tell 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, Section 213 lets the government ask a judge for permission to delay notice of a search. The judge can grant the request only if he finds reasonable cause to believe that notice would result in death or physical harm to an individual, flight from prosecution, evidence tampering, witness intimidation, or other serious jeopardy to an investigation. In the case of Mohammad Atta’s hard drive, the judge will likely allow a delay, since notice could seriously jeopardize the investigation, and would likely result in evidence tampering or witness intimidation.

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.

Section 213 carefully balances traditional expectations of notice and the imperatives of preemptive terror and crime investigations. That’s not how left- and right-wing libertarians have portrayed it, however. They present Section 213, which they have dubbed sneak-and-peek, as one of the most outrageous new powers seized by former Attorney General John Ashcroft. The ACLU’s fund-raising pitches warn: Now, the government can secretly enter your home while you’re away . . . rifle through your personal belongings . . . download your computer files . . . and seize any items at will. . . . And, because of the Patriot Act, you may never know what the government has done.

Notice the ACLU. Like every anti-213 crusader, the ACLU implies that section 213 is a radical new power. This charge is a rank fabrication. For decades, federal courts have allowed investigators to delay notice of a search in drug cases, organized crime, and child pornography, for the same reasons as in section 213. Indeed, the ability to delay notice of a search is an almost inevitable concomitant of investigations that seek to stop a crime before it happens. But the lack of precise uniformity in the court rulings on delayed notice slowed down complex national terror cases. Section 213 codified existing case law under a single national standard to streamline detective work; it did not create new authority regarding searches. Those critics who believe that the target of a search should always be notified prior to the search, regardless of the risks, should have raised their complaints decades ago--to the Supreme Court and the many other courts who have recognized the necessity of a delay option.

Critics of Section 213 raise the spectre of widespread surveillance abuse should the government be allowed to delay notice. FBI agents will be rummaging around the effects of law-abiding citizens on mere whim, even stealing from them, allege the anti-Patriot propagandists. But the government has had the delayed notice power for decades, and the anti-Patriot demagogues have not brought forward a single case of abuse under delayed notice case law. 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.

--Strategy #2: Hide the Judge

The most pervasive tactic used against the Patriot Act is to conceal its judicial review provisions.

The cascades of anti-section 213 vitriol contain not one mention of the fact that the FBI can only delay notice of a search pursuant to judicial approval.  It is a federal judge who decides whether a delay is reasonable, not law enforcement officials. And before a government agent can even seek to delay notice of a search, he must already have proven to a judge that he has probable cause to conduct the search in the first place.

But the opponents suggest that under section 213, the government can unilaterally and for the most nefarious of purposes decide to conceal its investigative activities. Indeed, the ACLU implies that federal investigators can not only unilaterally delay notice, but can choose what and whether to search, without any judicial oversight: Now, the government can . . . seize any items [from your home] at will, it blares. But section 213 allows a warrant to issue only if a judge finds a reasonable necessity for it’s ”the executive’s arbitrary will has nothing to do with it. This is hardly a recipe for lawless executive behavior unless the anti-Patriot forces are also alleging that the federal judiciary is determined to violate citizens rights. If that’s what they mean, they should come out and say it.

--Strategy #3: Amend the Statute.

Anti-Patriot lore has it that section 213 allows the government to permanently conceal a search. The section allows the government to conduct secret searches without notification, cries Richard Leone, president of the Century Foundation and editor of The War on Our Freedoms: Civil Liberties in an Age of Terrorism. This conceit rewrites the section, which provides only for a delay of notice, not its cancellation.  A warrant issued under section 213 must explicitly require notice after a reasonable period of time. This key feature of the section is completely suppressed by the critics.

--Strategy #4: Reject Secrecy.

Many of the attacks on the Patriot Act emanate from a single source: the critics do not believe that the government should ever act in secret. Recipients of document production orders in terror investigations whether Section 215 orders or national security letters under the 1986 Electronic Communications Privacy Act--should be able to publicize the government’s request, say the critics. If intelligence agents want to search a suspected cell’s apartment, they should inform the cell members in advance to give them an opportunity to challenge the search. Time and again, law enforcement critics disparage the Foreign Intelligence Surveillance Court, because its proceedings are closed to the public.

This transparent approach may satisfy those on the left and right who believe that the American people have no greater enemy than their own government, but it fails to answer the major question: how would it possibly be effective in protecting the country? The Patriot Act critics fail to grasp the distinction between the prosecution of an already committed crime, for which probable cause and publicity requirements were crafted, and the effort to preempt a catastrophic attack on American soil before it happens. For preemptive investigations, secrecy is of the essence. Opponents of the Patriot Act have never explained how they think the government can track down the web of Islamist activity in public. Given the fact that section 213 and other sections are carefully circumscribed with judicial checks and balances, it is in fact the secrecy that they allow that most riles the opponents.

The recent history of government intelligence-gathering belies the notion that any government surveillance power sets us on a slippery slope to tyranny. There is a slippery-slope problem in terror investigations — but it runs the other way. Since the 1970s, libertarians of all political stripes have piled restriction after restriction on intelligence-gathering, even preventing two anti-terror FBI agents in the same office 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. But critics of the Patriot Act and other anti-terror authorities ignore the sea change in law enforcement culture over the last several decades. For privacy fanatics, it’s always 1968, when J. Edgar Hoover’s FBI was voraciously surveilling political activists with no check on its power. That FBI is dead and gone. In its place arose a risk-averse and overwhelmingly law-abiding Bureau, that has internalized the norms of restraint and respect for privacy.

This respect for the law now characterizes intelligence agencies across the board. Lieutenant General Michael V. Hayden, the nominee for Principal Deputy Director of National Intelligence, told the Senate Select Committee on April 14 that the challenge for supervisors in the National Security Agency was persuading analysts to use all of their legal powers, not to pull analysts back from an abuse of those powers.

It is because of this sea-change in law enforcement culture that Patriot Act critics cannot point to a single abuse of the act over the last four years, and why they are always left to argue in the hypothetical.

In conclusion, the Patriot Act is a balanced updating of surveillance authority in light of the new reality of catastrophic terrorism. It corrects anachronisms in law enforcement powers, whereby health care fraud investigators, for example, enjoyed greater ability to gather evidence than Al Qaeda intelligence squads. It created no novel powers, but built on existing authorities within the context of constitutional checks and balances. It protects civil liberties while making sure that intelligence analysts can get the information they need to protect the country. The law should be reenacted.