As President Bush would have it, the choice is simple. Either Congress renews the USA Patriot Act intact, with all the new powers for government now scheduled to “sunset” at the end of year and a few new ones to boot, or America will be fighting terrorism with one hand tied behind its back. “If we have good tools to fight street crime and fraud, law enforcement should have the same tools to fight terrorism.”
It’s an adept choice of words. Compared to “the power to demand just about anything from a business and make it a crime to say anything about it,” the word “tool” sounds innocuous. Americans love having the right tools for the job.
The problem is that it is far from obvious that the powers given to government by the Patriot Act have been at all useful in preventing terrorist attacks. The fact everybody is reluctant to acknowledge is that nobody really knows why we haven’t suffered an attack on the 9/11 scale since 2001. Is it because al-Qaida is weakened or because it thinks in years rather than months? Is it because law enforcement has stymied plots or because there weren’t serious plots?
If anybody tells you he knows for sure, be skeptical, if only because U.S. intelligence, as everybody acknowledges, still hasn’t figured out how to penetrate the al-Qaida network.
President Bush implies that if the Patriot Act isn’t renewed intact the fabled “wall” between intelligence and law enforcement will be rebuilt with bigger bricks. We don’t believe it. Tensions and turf wars between the FBI and the CIA have been the stuff of Washington legend for decades, and the Patriot Act hasn’t dissolved them. Even Attorney General Alberto Gonzales responded in a recent congressional hearing that the “wall” was more a matter of culture than of law.
Efforts to improve intelligence/law enforcement communication began before the Patriot Act was passed and they will continue — with fits and starts since it’s more a matter of breaking bad habits than changing laws — whether it is renewed, reformed or eliminated.
To its credit, as Timothy Lynch, director of the project on criminal justice at the libertarian Cato Institute said, the House has not confined its hearings on the Patriot Act to the provisions set to expire at the end of the year. The relevant committees seem prepared to look at the act as a whole and try to decide which provisions are worthwhile and which have the potential to endanger American liberties without buying additional security.
For example, hearings have discussed “sneak and peek” searches, authority for which is not scheduled to expire. A number of the provisions in the SAFE Act, co-sponsored by Sens. Larry Craig, R-Idaho, and Richard Durbin, D-Ill., including limits on Internet surveillance, allowing businesses to challenge searches in court and more complete reporting to Congress could make their way into a reform bill.
The recent Justice Department inspector general report suggests the FBI had plenty of authority to stop some of the 9/11 hijackers but didn’t get its act together. It’s more important to reform these agencies so they can use the tools they have always had than to make new powers permanent.