Whenever you think Patriot Act, do you think “terrorism” or “drugs?” I think it’s a fair bet you mostly think of the first term whenever discussion about the Patriot Act comes up. And why not? After all, it was a piece of legislation that was written to combat terrorism.
So why do I ask you if you think about drugs when it comes to the Patriot Act? That’s because not all provisions in it were written to specifically combat terrorism. Some of them have a more domestic target, in this case the War On Drugs. While it is without doubt that many drug operations end up funding terrorism, I would guess that most drug operations are in business to, well, conduct business. A highly illegal and dangerous business, but a business none-the-less.
So what does any of this have to do with the Patriot Act? Well, the Huffington Post wrote an article this week on the Act’s sneak and peek provisions, and it found out that most of the warrants filed under sneak and peek don’t contribute to the War on Terrorism, but instead the War on Drugs. To which I say…that’s kind of what it’s supposed to do.
The article covers hearings held by Senator Russ Feingold, the one guy in the Senate who didn’t vote for the Patriot Act, allegedly because he read it and didn’t like what he saw:
“As I recall it was in something called the USA PATRIOT Act,” Feingold quipped, “which was passed in a rush after an attack on 9/11 that had to do with terrorism it didn’t have to do with regular, run-of-the-mill criminal cases. Let me tell you why I’m concerned about these numbers: That’s not how this was sold to the American people. It was sold as stated on DoJ’s website in 2005 as being necessary – quote – to conduct investigations without tipping off terrorists.”
Apparently he didn’t read it that well, because the person he was quizzing on the provisions, Assistant Attorney General David Kris, admits that sneak and peek was written specifically for general criminal cases:
“This authority here on the sneak-and-peek side, on the criminal side, is not meant for intelligence. It’s for criminal cases. So I guess it’s not surprising to me that it applies in drug cases,” Kris said.
I am a little sympathetic to Feingold’s argument. That Patriot Act was sold as the answer to the problem of investigating terrorism. It was sold as a way to break down the barrier between the intelligence and law enforcement communities, so that they could share information regarding terrorism cases. But Feingold is right that it was not sold as a way to give the law enforcement community more powers in general.
However, that doesn’t really matter now, does it? The provision is there and has been since the bill was introduced into the House of Representatives, so Feingold shouldn’t be surprised, given that he claims to know the bill so well that he voted against it because he actually read it.
What I would like to address is the delayed notification, or “sneak and peek” provision itself. Here’s the sneak and peek provision, as originally written:
Section 3103a of title 18, United States Code, is amended-
- (1) by inserting `(a) IN GENERAL- ‘ before `In addition’; and
- (2) by adding at the end the following:
- `(b) DELAY- With respect to the issuance of any warrant or court order under this section, or any other rule of law, to search for and seize any property or material that constitutes evidence of a criminal offense in violation of the laws of the United States, any notice required, or that may be required, to be given may be delayed if-
- `(1) the court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result (as defined in section 2705);
- `(2) the warrant prohibits the seizure of any tangible property, any wire or electronic communication (as defined in section 2510), or, except as expressly provided in chapter 121, any stored wire or electronic information, except where the court finds reasonable necessity for the seizure; and
- `(3) the warrant provides for the giving of such notice within a reasonable period of its execution, which period may thereafter be extended by the court for good cause shown.’
Basically, the provision allows for the seizure of any non-tangible evidence in a criminal investigation and allows law enforcement, upon receiving court permission, to delay the notification of the warrant if it would 1) threaten the life of an individual, 2) provide an opportunity for the accused to flee prosecution, 3) destroy evidence, 4) intimidate witnesses, or 5) for other applicable reasons or unduly delaying a trial.
Subsection one was amended in 2005 to bar the extension of a delay if the only reason was that it would unduly delay a trial. Subsection three was amended to add a maximum of no more than 30 days after the period of execution, unless law enforcement had a good reason to go longer than that. So you still have to notify them at some point.
The provision definitely had problems as originally written. Under it, law enforcement could simply say the advance notification of a warrant would unduly delay a trial, and that would be it. And the eventual time of notification could be five years from now if they wanted. These thigns are now changed.
However, I do still take issue with section 2705’s “otherwise seriously jeopardizing an investigation” rationale as a reason for delaying notification of a warrant. I believe this is overbroad, as it simply allows law enforcement to give any reason they want as to why an delay is necessary. It’s the kind of “cover all bases” clause that I don’t like, and that you think would be illegal. I think that when dealing with the rights of the accused, you need to be as specific as possible, or else somebody will try to exploit the loophole.
I am a little uncomfortable with sneak and peek, though I understand the reasoning for it. Criminals certainly don’t want to be caught, and if it appears that they’re going to be busted, they’ll do anything to make sure their tracks are covered. Yet, I could also understand the libertarian argument against sneak and peek. They might say that law enforcement has no right to search your home without notifying you. If they do, you have no way (until up to 30 days later) of knowing and properly documenting if they did something wrong during their search, that you could then use as a defense at trial.
Bringing it back to Feingold, I think the Senator is right to cause a fuss (he doesn’t have the hypocrisy of having voted for the Patriot Act to cloud his objections). Why a tool to fight drug-related crimes is in a bill designed to fight terrorism, I don’t know. Then again, the irony of Republicans having shoved through any bill, no less an omnibus bill, is not lost on me. I generally think, like Republicans claim to believe, that each portion of a bill that changes or adds to existing law ought to stand on its on. This includes bills that change or add to the procedures of law enforcement or intelligence. Of course, since when have either Democrats or Republicans upheld the political principles for which they routinely chide each other for violating?
In conclusion, while I have some problems with sneak and peek, and the Patriot Act as a whole, I have an issue with the target of Senator Feingold’s investigation. He claims to have read the bill, so presumably he knew what sneak and peek does. So he shouldn’t be acting so surprised when it turns out that the provision is being used as intended.