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Overblown fears about the Patriot Act

THE DENUNCIATIONS of the USA Patriot Act proceed apace. The American Civil Liberties Union reports that 313 cities and four states have passed resolutions opposing the law. In many quarters it is taken for granted that the Patriot Act is an abomination that shreds civil liberties and throttles due process. The law's sternest critics warn that America is only steps away from the gulag. "We are closer to a totalitarian state than ever before," warns Joe Williams, a Californian running for Congress on the Peace and Freedom Party ticket, in a recent debate on the popular Front Page Magazine website.

Strangely omitted from much of the anti-Patriot Act vehemence is any mention of 9/11. That is understandable: Ignore the context in which the law was enacted, and it becomes easier to demonize it. But the Patriot Act wasn't passed in a vacuum. It came in the wake of a horrendous attack by foreign enemies who had been hiding within our borders. 9/11 awakened many Americans to the fact that we are at war with a fanatical enemy -- an enemy that will go on slaughtering civilians unless it is rooted out and destroyed.

But terrorists can't be rooted out unless investigators have the means to find them. And for years, federal agents were barred from using tools in counterterrorism work that were readily available to agents pursuing gangsters or drug dealers. Nor could investigators hunting terrorists swap potentially useful information with criminal investigators -- an intelligence "wall" that helps explain the government's failure to expose the 9/11 plot before it was carried out.

The Patriot Act was designed to plug these gaping holes. The wisdom of doing so is suggested by the fact that Al Qaeda has not managed to pull off another attack on US soil. The fears some expressed when the law was first enacted -- that it would trigger a wave of repression, that domestic dissenters would be silenced -- turned out to be groundless. If anything, the Patriot Act should be more popular today than when it was passed by a nearly unanimous Congress in 2001.

At the grassroots, polls suggest that the law does, in fact, retain broad support. In a February survey for CNN and USA Today, for example, Gallup found that 64 percent of respondents thought the Patriot Act is just about right or doesn't go far enough in adjusting civil liberties to the war on terrorism. Only 26 percent said it goes too far.

Another clue to the law's still-widespread approval is that John Kerry no longer denounces it as fiercely as he used to.

In December, when the Iowa caucuses were still weeks away, Kerry condemned the Patriot Act. "At this very moment," he said in Iowa City, "an FBI agent could be rifling through every website you've ever visited, and you would never know it. . . . Officers could be entering your house while you are gone -- rifling through your possessions -- and leaving without ever letting you know they had been there." Now the Kerry campaign makes a point of saying that the Democratic candidate "stands by his vote for the Patriot Act" and "even wants to strengthen some aspects of it." But where mainstream America sees a reasonable response to terror, others see jackbooted fascism.

Take Section 215 of the Patriot Act, one of the law's most controversial. It allows investigators to obtain records and other "tangible things" in the course of a terrorism investigation. This, the ACLU informs us, means that "the FBI could spy on a person because they don't like the books she reads, or because they don't like the web sites she visits. They could spy on her because she wrote a letter to the editor that criticized government policy."

There's just one problem with that scenario: It isn't true.

To begin with, the FBI cannot request any documents or records without first getting judicial permission. That permission must come in the form of an order from the Foreign Intelligence Surveillance Court -- a federal court specializing in counterterrorism and international intelligence that was created by Congress during the Carter administration. No judge on that court is going to authorize government agents to spy on a citizen merely because of his reading or web-surfing habits. Why not? Because the law forbids it. Which law? Why, the Patriot Act.

"An investigation conducted under this section," Section 215 commands, "shall . . . not be conducted of a United States person solely upon the basis of activities protected by the First Amendment." In case that isn't clear enough, Section 215 says it twice. And for added protection, it directs the attorney general to tell Congress every six months how many court orders have been requested, and how many of those requests have been granted.

What is true of Section 215 is true of the Patriot Act generally: On close inspection, the critics' sound and fury tends to end up signifying nothing. In the 2 1/2 years since 9/11, Congress has undoubtedly made mistakes. The Patriot Act wasn't one of them.

Jeff Jacoby's e-mail address is 

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