So says a Newsday opinion piece. I tend to disagree…
Legislate in haste, repent at leisure. That’s one lesson Washington should take from a court decision last week striking down a provision of the USA Patriot Act that empowered the FBI to demand that telephone companies and Internet service providers give them secret access to subscribers’ records.
Actually, this is about the closest we could possibly have come to an ideal result if the result had been actually written into the law. The immediate aftermath of the attacks on September 11, 2001 required quick, bold action that in normal times would be constitutionally shaky. (Before you dismiss that thought, compare the Patriot Act and the liberation of Afghanistan to the alternative we would likely have seen under a Gore administration – martial law in the US and weak action abroad.) The Patriot Act had to push the barrier of the constitutionally permissible. Had it not, I have no doubt we would have seen dirty bombs and bioterrorism unleashed within months at most.
Now on the other hand, with 75% of al Qaida’s top leadership captured or killed, their training camps destroyed, their financial affairs being disrupted and their allies being sentenced to death in Arab countries where the death penalty means something, it’s time to regroup. Part of that regrouping needs to be taking a look at the Patriot Act to make sure that we don’t hand the terrorists a win with excessive powers that can be used against U.S. citizens. I am not at all concerned that the Bush Justice Dept. has abused or will abuse the powers. They haven’t purposely abused them and where mistakes were made they have resolved them. On the other hand, there is the prospect of a future Democrat administration or even a corrupt Republican administration comparable to Nixon’s, that would abuse the powers of the Patriot Act. Certainly there are parts of the Act that need to be kept. There are also parts that may need to be subject to more judicial scrutiny, parts that need a bit more public scrutiny and probably a few parts that need to be thrown out entirely. The section of the act in question in this suit was undoubtedly part of the latter. It allowed the FBI to issue a letter requiring ISPs to turn over records without any court action even in camera. Further, the law made it illegal for the ISP to discuss the letter with anyone for life, even with their attorneys. Useful in a state of emergency when used against suspected terrorists? Yes. Allowable as a permanent part of US law for use against US citizens on an ongoing basis, even in time of war? No.
3 years of Patriot Act powers have seen us through the immediate emergency. Certainly the war on terror isn’t won, but we can not, must not, exist in a perpetual state of emergency until it is. The sorts of powers that even rational civil libertarians didn’t decry on September 12, 2001 are not appropriate to continue for years without end. Ideally, Congress would take a more thorough look at the Acts provisions before renewing them. Barring that, let the Courts do the job that even a strict constructionist can’t reasonably fault.