The White House has spent much of the last few days posturing over the expiration of certain facets of the badly named Patriot Act claiming it leaves America in the dark about terror threats. Over in the Senate, Rand Paul has been posturing as he maneuvered to let the provisions expire, stating that he knew he could only delay re-authorization of the measures. In truth, the provisions that expired mean next to nothing, and there are plenty of other avenues by which the government can collect the same material. Moreover, the collection of the material as has been done actually lessens America’s ability to react to any threat.
On Friday, the president said, “I don’t want us to be in a situation in which for a certain period of time those authorities go away and suddenly we’re dark, and heaven forbid we’ve got a problem where we could’ve prevented a terrorist attack or apprehended someone who was engaged in dangerous activity.” On Sunday, CIA Director John Brennan said on CBS’s “Face the Nation” that there had “been a little too much political grandstanding and crusading for ideological causes that have skewed the debate on this issue, but these tools are important to American lives.”
The key provision that has lapsed is the government’s authority to gather up in mass information about electronic communications. However, under Section 214 of the Patriot Act (which remains in effect), “pen register/trap & trace” allows for collection of the exact same data as well as email communications. Roving wire taps are gone under the Patriot Act, warrants that allow multiple devices to be tapped. However, they can be obtained from a judge for a specific individual if there is any reason to think such a tap would be useful to law enforcement — just not under the Patriot Act. And roving wire taps are rarely used; 11 such orders were issued in 2013, the last year for which there is public information. There is no case of a trial of a potential terrorist in which a roving tap was used.
Then, there are the national security letters, a tool that pre-dates the Act. These letters give the FBI the power to compel the surrender of communications records. The FBI is the agency that generates the letters, not the judiciary, and it has produced as many as 50,000 in a single year. Not only must the recipient (usually a phone company or Internet provider) hand over the information, but also it is banned from talking about the letter.
Finally, there is the grandfather provision. America’s intelligence services didn’t go dark a couple of hours ago. Any investigation using any lapsed power may continue to rely on that power and implement new actions under that power. That seems to be an exception big enough to legitimately claim that the provisions of the Act lapsed only in the minds of lawyers; in the field, it is still in force.
Mr. Brennan also said, “Law enforcement and intelligence professionals will always use whatever authorities and capabilities and tools they have. And if these lapse, I think we’re going to have fewer tools. But we will be working as hard as we can to protect the American people. We have a very good track record of doing that.” In other words, security agencies will simply fill out different forms to do more or less the same things under different laws.
Senator Rand Paul has given the country an opportunity to review exactly how it works to stop terrorist attacks. History has shown again and again that the most effective, indeed the only effective, method, is infiltration of terrorist organizations, the disruption of their activities from within and the imprisonment of their leadership based on eye-witness testimony. It is the exact same method that has broken the back of the mafia. It is the method that America ought to be using.
Unfortunately, America’s intelligence services prefer a technological solution to the problem. Rather than infiltrate a cell and take it down, the government prefers to throw a web of electronic surveillance over a cell, its neighbors, the families of cell members, and those who come in innocent and passing contact with members. Counter-terrorism is the proverbial search for a needle in a haystack. The government’s approach is to gather up every straw in the field and then look for the needle. The correct approach is to focus first on potential needles in the smallest possible haystack. The current method is expensive, destructive of American liberties, and relatively ineffective.
As the head of Israel’s counter-terrorism agency Shin Bet once said, “America looks for weapons, Israel looks for terrorists.”