The USA PATRIOT Act, an Orwellian name for a piece of legislation designed to increase the power of law enforcement to monitor citizens and evade the requirements of the Fourth Amendment if there ever was one, was passed overwhelmingly in the wake of the September 11th attacks under circumstances that made it clear that the vast majority of legislators who voted for it weren’t really aware of what it provided. Indeed, as we later learned many of the powers that the law granted to law enforcement in response to the threat of terrorist attacks were, in fact, powers that authorities had been trying to obtain for years for reasons that had nothing to do with terrorism. One of those powers was the so-called “sneak and peak” warrants, which allow law enforcement to obtain a search warrant and conduct a search without the target of the search ever being aware that it had happened, The justification given for such authority being, of course, that we don’t want to let terrorists to know that we’re watching them. A new study by the Electronic Frontier Foundation, though, reveals that the majority of such warrants are granted in cases that have absolutely nothing to do with terrorism:
A closer look at the number of sneak and peek warrants issued (a reporting requirement imposed by Congress) shows this is simply not the case. The last publicly available report about sneak and peek warrants was released in 2010; however, the Administrative Office of the US Courts has finally released reports from 2011, 2012, and 2013.
What do the reports reveal? Two things: 1) there has been an enormous increase in the use of sneak and peek warrants and 2) they are rarely used for terrorism cases.
First, the numbers: Law enforcement made 47 sneak-and-peek searches nationwide from September 2001 to April 2003. The 2010 report reveals 3,970 total requests were processed. Within three years that number jumped to 11,129. That’s an increase of over 7,000 requests. Exactly what privacy advocates argued in 2001 is happening: sneak and peak warrants are not just being used in exceptional circumstances—which was their original intent—but as an everyday investigative tool.
Second, the uses: Out of the 3,970 total requests from October 1, 2009 to September 30, 2010, 3,034 were for narcotics cases and only 37 for terrorism cases (about .9%). Since then, the numbers get worse. The 2011 report reveals a total of 6,775 requests. 5,093 were used for drugs, while only 31 (or .5%) were used for terrorism cases. The 2012 report follows a similar pattern: Only .6%, or 58 requests, dealt with terrorism cases. The 2013 report confirms the incredibly low numbers. Out of 11,129 reports only 51, or .5%, of requests were used for terrorism. The majority of requests were overwhelmingly for narcotics cases, which tapped out at 9,401 requests.
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The numbers vindicate privacy advocates who urged Congress to shelve Section 213 during the Patriot Act debates. Proponents of Section 213 claimed sneak and peek warrants were needed to protect against terrorism. But just like we’ve seen elsewhere, these claims are false. The government will continue to argue for more surveillance authorities—like the need to update the Communications Assistance to Law Enforcement Act—under the guise of terrorism. But before we engage in any updates, the public must be convinced such updates are needed and won’t be used for non-terrorist purposes that chip away at our civil liberties
These numbers should not come as a surprise, of course, Much of this was already known back in 2009 when the PATRIOT Act was being reauthorized and former Wisconsin Senator Russ Feingold was among those few Congressman and Senators who was actually trying to get to the truth:
It isn’t a surprise, of course, that the powers granted by the PATRIOT Act have been used far more in connection with the War On Drugs than they have been in connection with terrorism related investigations. For one thing, even in the immediate wake of the September 11th attacks the actual number of active terrorist investigations in the United States based on credible evidence was relatively small. The War On Drugs, on the other hand, is a continually growing field of investigation for law enforcement, a field that allows them to continually get legislatures to give them more and more money, and, thanks to forefeiture laws that allow them to seize everything from cars to home because of alleged connections to a drug operation, a fairly lucrative line of business, it’s not surprising that they would use tools that the legislature granted them in a panic over terrorism in the wake of the worst attack on the Continental United States since the War Of 1812 to increase their power in other areas. This is especially true given the fact that powers like the “sneak and peek” warrant are things that they had been trying to get from Congress and the Courts since well before Islamist terrorism was something that anyone had even really thought to be a possible threat.
There are many lessons that we can draw from this, as Radley Balko notes about some of the lessons these numbers can teach us:
- This is also an argument against rashly legislating in a time of crisis. On Sept. 11, 2001, the federal government failed in most important and basic responsibility — to protect us from an attack. We responded by quickly giving the federal government a host of new powers.
- Assume that any power you grant to the federal government to fight terrorism will inevitably be used in other contexts.
- Assume that the primary “other context” will be to fight the war on drugs. (Here’s another example just from this month.) I happen to believe that the drug war is illegitimate. I think fighting terrorism is an entirely legitimate function of government. I also think that, in theory, there are some powers the federal government should have for terrorism investigations that I’m not comfortable granting it in more traditional criminal investigations. But I have zero confidence that there’s any way to grant those powers in a way that will limit their use to terrorism.
- Law-and-order politicians and many (but not all) law enforcement and national security officials see the Bill of Rights not as the foundation of a free society but as an obstacle that prevents them from doing their jobs. Keep this in mind when they use a national emergency to argue for exceptions to those rights.
- When critics point out the ways a new law might be abused, supporters of the law often accuse those critics of being cynical — they say we should have more faith in the judgment and propriety of public officials. Always assume that when a law grants new powers to the government, that law will be interpreted in the vaguest, most expansive, most pro-government manner imaginable.
All of this, and the other lessons that Balko notes at the link can be summed up with the idea that not only does power corrupt, but power that is largely unchecked and which is granted in a moment of panic, as happened here, corrupts absolutely. If we lived in a rational country, Congress would reexamine the PATRIOT Act and scale back powers like this that are obviously not being used for their intended purpose, or pass legislation limiting the circumstances under which they can be sued. That never happens, of course, because when powers like this are granted they are rarely, if ever, scaled back. If anything, they get expanded and they become permanent. In this case, the fact that those powers were granted as part of some amorphous “war on terror” that doesn’t seem to have an end makes repeal or change even less likely. Indeed, if there is another mass attack in the future, the response will not be to wonder why the massive new powers granted law enforcement in the wake of the 2001 attacks didn’t stop it, but to grant even more power that will, inevitably, be used for something other than investigating terrorists.
