In Defense of the Patriot Act

How far is it reasonable to go in the name of national security?

Many of the commentaries elicited by the tenth anniversary of the Patriot Act are as polarized as other elements of our public discourse. On the one hand, there are those who argue that the threat of terrorism is vastly exaggerated, that fear-mongering is used to deprive Americans of their basic rights, and that terrorists could be dealt with as just another kind of criminal—by the police and civilian courts. Then there are those who maintain that anyone who opposes reasonable security measures is aiding and abetting the enemy and that torture and extraordinary renditions have shown themselves to be vital to aborting major additional attacks on our homeland.

If one moves away from such one-sided, overarching positions, one realizes that we face two major legitimate goals—protecting national security and respecting individual rights—and that neither should trump the other. The tension between them can be worked out. Indeed, this key thesis is reflected in the Fourth Amendment, which holds that there be no unreasonable searches and seizures. That is, the Constitution recognizes that some searches do not violate rights and are fully legitimate. And it provides a criterion for determining which are acceptable: those that a reasonable person will recognize as proper. Needless to say, such recognition changes over time—for instance, after events such as 9/11.

One next examines various new security measures included in the Patriot Act on the basis of their reasonableness rather than condemning or embracing the act wholesale. It contains 161 provisions, only about ten of which have been seriously contested by anybody. Moreover, many of the security measures that have troubled many Americans—including the use of torture, indeterminate detention and extraordinary renditions—are not part of the Patriot Act. True, it was originally enacted in great haste. However, it has since been reviewed and extended several times.

The most important provisions of the Patriot Act seem to meet the criterion of reasonableness.

Phones: Before the Patriot Act was passed, authorities had to obtain a court's permission to tap a phone, but the warrant had to be "particularized" to a given instrument, reflecting the days when most people had just one phone. Cell phones made this narrow rule obsolete. The Patriot Act changed this requirement to attach warrants to a suspect, rather than to one of his instruments in particular. It merely allowed the law to catch up with technological development.

Libraries: Critics have been outraged by the right of the government to search the computers of public libraries. Actually, the term "library" is not mentioned in the act. The bill authorizes searches of "books, records, papers, documents and other items... to protect against international terrorism or clandestine intelligence activities." Critics singled out libraries because such searches evoked more public outrage than if one referred to the actual wording of the bill. While critics argued that this measure would or could have a chilling effect, this observer, at least, is unaware of credible evidence to support this claim.

Homes: The "sneak and peek" clause has been particularly vilified. The act grants authorities the right to search a home without notifying the owner for a period of days. But how long is enough? Russ Feingold favored seven days; Republicans in the House wanted 180 days. But there was little discussion of the grubby details of conducting such a search. How long does it take to de-encrypt a PC? To translate messages? To find collaborators? Clearly, some delay seems reasonable. This provision was amended in 2005 to detail that notification must be provided within 30 days (unless the facts of the case justify a longer delay, which must be overseen by a court and consists of periods of 90 days).

E-mail: Another reasonable new measure changed search warrants from local to national when dealing with the Internet. E-mail often is stored remotely on the servers of Internet service providers (ISPs). Under old laws, search warrants applied only to the jurisdiction in which the search would take place. This meant that if a suspect in, say, New Jersey had e-mail stored on a server located in, say, Silicon Valley, an agent would have to travel across the country to obtain a warrant to seize the e-mail in the jurisdiction in which the server was located. Under the Patriot Act, judges in districts with jurisdiction over particular crimes are allowed to grant search warrants to seize electronic communications stored outside that judge’s jurisdiction.

There is room for debate about how far we need to go to protect ourselves. However, the fact that there has been no successful attack for ten years—and that those that were attempted in the U.S. (that we know about) were particularly inept—should not lull us into letting our guard down. One cannot ignore that survey after survey shows that there are many millions of people throughout the world (and some right here, at home) who hate our guts and wish us harm. We need to recall the words of a terrorist who explained: “You need to be lucky all the time; I need to be lucky just once.” And we ought not to confuse the main features of the Patriot Act—which meet the criteria of reasonableness—with other new security measures, measures that have crossed the line that separates what free societies will do to defend themselves and that which they consider repugnant. We would rather absorb some risk to our security than behave like, well, terrorists.