The USA Patriot Act was enacted in the month after 9/11, and the title of the legislation is an abbreviation for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism. Senator Barack Obama voted for renewal of the Patriot Act in 2005 but he made critical remarks about the legislation during the 2008 campaign. Many liberal activists cited Obama’s background as a Constitutional law professor. They had been expecting the new President to seek repeal of this legislation, but so far his Justice Department is complying with the Patriot Act. This has been a big disappointment for the American Civil Liberties Union (ACLU), and Obama is also opposing them by continuing the Bush Administrations Military Commissions and the indefinite imprisonment of various terrorists.
The ACLU has been spreading myths about the Patriot Act since 2001. They claim that primarily because of the Patriot Act, “The Bush years were a nightmare for the shredding of the Constitution and our legal protections.” According to the ACLU “Many people are unaware that their library habits could become the target of government surveillance. In a free society, such monitoring is odious and unnecessary. . . The secrecy that surrounds section 215 leads us to a society where the ‘thought police’ can target us for what we choose to read or what Websites we visit.”
The reality is that the Patriot Act specifically protects Americans’ First Amendment rights, and terrorism investigators have no interest in the library habits of ordinary Americans. Historically, terrorists and spies have used libraries to plan and carry out activities that threaten our national security. If terrorists or spies use libraries, we should not allow them to become safe havens for their terrorist or clandestine activities. The Patriot Act ensures that business records – whether from a library or any other business – can be obtained in national security investigations with the permission of a federal judge.
Examining business records often provides the key that investigators are looking for to solve a wide range of crimes. Investigators might seek select records from hardware stores or chemical plants, for example, to find out who bought materials to make a bomb, or bank records to see who’s sending money to terrorists. Law enforcement authorities have always been able to obtain business records in criminal cases through grand jury subpoenas, and continue to do so in national security cases where appropriate. In a recent domestic terrorism case, for example, a grand jury served a subpoena on a bookseller to obtain records showing that a suspect had purchased a book giving instructions on how to build a particularly unusual detonator that had been used in several bombings. This was important evidence identifying the suspect as the bomber.
Under the Patriot Act, the government can ask a federal court (the Foreign Intelligence Surveillance Court) to order production of records through grand jury subpoenas. This federal court, however, can issue these orders only after the government demonstrates the records are sought for an authorized investigation to obtain foreign intelligence information. Congress reviews the government’s use of business records under the Act. Every six months, the Attorney General must “fully inform” Congress on how it has been implemented.
The ACLU also claims the Patriot Act “allows law enforcement agencies to delay giving notice when they conduct a search. . . . This provision marks a sea change in the way search warrants are executed in the United States.” What the ACLU does not say is that delayed notification search warrants are a long-existing, crime-fighting tool upheld by courts nationwide for decades in organized crime, drug cases and child pornography. The Patriot Act simply codified the authority law enforcement had already had for decades. This tool is a vital for detecting and incapacitating terrorists before they are able to strike.
In some cases if criminals are tipped off too early to an investigation, they might flee, destroy evidence, intimidate or kill witnesses, cut off contact with associates, or take other action to evade arrest. Therefore, federal courts in narrow circumstances long have allowed law enforcement to delay for a limited time when the subject is told that a judicially-approved search warrant has been executed. This tool can be used only with a court order, in extremely narrow circumstances when immediate notification may result in death or physical harm to an individual, flight from prosecution, evidence tampering, witness intimidation, or serious jeopardy to an investigation. The reasonable delay gives law enforcement time to identify the criminal’s associates, eliminate immediate threats to our communities, and coordinate the arrests of multiple individuals without tipping them off beforehand. In all cases, law enforcement must give notice that property has been searched or seized.
The Supreme Court has held the Fourth Amendment does not require law enforcement to give immediate notice of the execution of a search warrant. The Supreme Court emphasized “that covert entries are constitutional in some circumstances, at least if they are made pursuant to a warrant.” In fact, the Court stated that an argument to the contrary was “frivolous.” Dalia v. U.S., 441 U.S. 238 (1979)