So much terror?

May 17, 2004

TAKING ADVANTAGE of the relaxed standard for secret foreign intelligence searches it gained with the USA Patriot Act in 2001, the Justice Department has steamed forward in its use of these surveillance warrants.

While it is reassuring that Justice is taking terror investigations seriously, it also is a worry.

These warrants are so secret that people who aren't later charged - the vast majority - never know the government was watching them. And people who are charged are never permitted to see the warrant, so they cannot defend themselves in court against unreasonable snooping.

The 1,727 clandestine surveillance and search warrants approved last year by the super-secret Foreign Intelligence Surveillance Court overtook the number of standard surveillance warrants approved by standard courts (1,442) for the first time, according to reports from the Office of the Attorney General and the Administrative Office of the U.S. Courts. The number is a 70 percent increase over the figure from 2000, back when agents could use such a warrant only if their purpose was gaining foreign intelligence, not also to investigate domestic criminal activity.

Those who are eavesdropped upon or whose homes are searched may never know the reasons a warrant was issued; there is no requirement to report such searches to the target after the fact. After suspects have been charged and have learned of a clandestine warrant, their lawyers can ask to see it, but the government has never disclosed one, according to the American Civil Liberties Union. If they had been tapped under a standard warrant, that warrant would have to be released on request.

Meanwhile, the court itself noted in 2000, before passage of the Patriot Act, that 75 warrant applications contained errors including "misstatements and omissions of material facts," usually from FBI sources. That was out of 1,102 warrants issued that year.

Should we really be trusting that more warrants means fewer errors? Shouldn't there be some kind of backstop?

These warrants should be released on request, as are the public ones. The release could be as far after the fact as necessary - or perhaps the warrant could be redacted to delete still-sensitive information. If a criminal case is ready to be prosecuted, most of the dangers of exposing information would seem to have passed.

Failing to provide a basic check against the power of the government weakens liberty for all.

In the coming debate over modifications to the Patriot Act, Congress and the Bush administration must create a review mechanism that better balances the needs of terror hunters and their suspects. Unreasonable searches and snooping are forbidden by the Constitution. It is likely that most secret warrants are reasonable, but it's not guaranteed, and Americans are told to trust in their government's secret ways. This country doesn't govern itself through trust, though, but the rule of law. Let the facts be shown.

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