With hearings on the Patriot Act’s reauthorization underway, the anti–Patriot Act deception campaign continues at full throttle. It’s long past time that the Bush Administration set the record straight about the act. And the reauthorization debate offers another important opportunity as well—the chance to blunt one of the most important implements in the anti–law enforcement tool chest: the “slippery slope” argument. Both right-wing and left-wing libertarians reflexively argue that any commonsensical reform of the law-enforcement status quo will send the nation hurtling toward government tyranny. The most controversial provision of the act—section 213—shows that the argument is false.
Section 213 allows the government to delay notice of a search. Let’s say that the FBI wants to plumb Mohamed Atta’s hard-drive for evidence of a nascent terror attack. If a federal agent shows up at Atta’s 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 allows the government to 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 after a traditional probable cause hearing on the warrant itself—if revealing the search would risk the destruction of evidence, or would put a witness’s life at risk, or would 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 libertarian 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).
Keene recently joined with Americans for Tax Reform’s Grover Norquist, the Eagle Forum’s Phyllis Schlafly, and former Republican congressman Bob Barr, as well as with the ACLU, to form the anti–Patriot Act group, Patriots to Restore Checks and Balances. What this coalition never discloses is that section 213 provides a complete refutation of the slippery slope’s inevitability. 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 minor tinkering with traditional law-enforcement rules opened the way toward government tyranny, we would already be living in a police state. 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 delayed notice rulings.
In fact, the libertarians have no such evidence. They have pointed to no case over the last two decades of misuse of the delayed notice authority. Their arguments against section 213 remain purely speculative: it could be abused. But they don’t need to speculate; they have the historical record—and it refutes them.
The fact is, the government’s power to investigate terrorism has been the opposite of a slippery slope toward tyranny. Since the 1970s, libertarians of all political stripes had 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 1990s, 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. But checks and balances actually work. And history does not always repeat itself. Surprisingly, 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.