(Read “PARIOTism Debated” here.)
So let me get this straight: Congress could pass a law improving the government’s ability to detect terrorist activity that by universal agreement violated no constitutional rights, and Julian Sanchez would oppose it because the need to fight terrorism has no clear expiration date? Since when does the apparent longevity of a ruthless enemy limit the government’s duty to protect citizens against him? The “endless war” argument is simply a substitute for showing how the PATRIOT Act and other measures actually violate civil liberties.
The undoubted durability of Islamic terrorism is irrelevant to determining the legitimacy of the government’s fight against it (and is in any case largely beside the point, since most of the act expires after five years). Instead, the questions must always be: Are the measures reasonable in light of the risks they seek to counter, do they correct obvious and unjustifiable deficiencies in existing law, are they crafted within constitutional standards and with appropriate checks and balances? I have argued that the PATRIOT Act and other actions taken by the Bush administration since 9/11 meet those tests. As Mr. Sanchez graciously concedes, Section 215, for example—the business records provision—violates no constitutional rights. Judge Posner’s critique of privacy doctrine has no bearing, because the records covered by 215 have not been relinquished under government mandate and to the government; the original record-holder will have given them voluntarily to private parties.
Mr. Sanchez claims that the PATRIOT Act authorized the government to delay notice of a search in criminal investigations, a power he deplores. Wrong. The government already had that power, granted by numerous federal judges across the country. The act merely codified existing judicial precedent into a single national standard. Moreover, the power is eminently reasonable: it may be exercised only when notice would have an “adverse result,” such as the taking of a life or the destruction of evidence, and only for a “reasonable period” of time, which the administration has defined as usually seven days.
Turf wars did, as Mr. Sanchez points out, impede information-sharing before 9/11. But the regulatory wall between criminal terror investigators and intelligence investigators had a crippling effect on intelligence collaboration as well. The wall’s removal was essential and the most important aspect of the PATRIOT Act. Just because the government does not always process well the information it already possesses does not mean that unreasonable barriers to potentially vital intelligence should remain standing.
My interlocutors are far from “imaginary.” Both the Right and the Left have mischaracterized the government’s actions through such strategies as hiding judicial review requirements or legal precedent. “Debate” is a good thing (though it has hardly been “sorely” lacking up to now). But to be useful, it must be based upon fact, not fiction.