THE PATRIOT WAR
By KRIS W. KOBACH
NY Post
Kris W. Kobach, a professor of constitutional law at the University of Missouri (Kansas City), served as counsel to the U.S. attorney general, 2001-2003. He is running for Congress in Kansas' 3rd District.
March 1, 2004 -- <font size=4>FOREIGN terrorists have an unwitting ally in the American Left. Several liberal interest groups are waging a campaign to unilaterally disarm our government. If they succeed, it could hobble the United States in the War on Terror and eventually exact a toll in American lives.
The liberals' campaign is mainly a propaganda war - a massive and pervasive disinformation effort meant to convince the nation that the Patriot Act infringes upon the civil liberties of ordinary Americans. It's a battle on three fronts: in the presidential campaign, before city councils across the country and in the courts.
THE Democratic presidential contenders constantly compete
over who despises the Patriot Act most - notwithstanding
the fact that John Kerry, John Edwards and 96 other
senators voted for the law.
The candidates' claims are rife with legal and factual
errors, but accuracy isn't the point. Their goal is to
discredit the Bush administration and scare voters into
believing that the FBI is spying on ordinary Americans.
For example, Kerry promised in December, "In my first 100 days, I will restore our commitment to civil rights and individual rights." Specifically, he pledged to restrict the delayed notice of the execution of search warrants and the seizure of library or business records under the Patriot Act.
If delayed notice under Section 213 of the Patriot Act (the Left calls it "sneak-and-peak") is such a threat to civil rights, then Kerry has some explaining to do: It's been around for decades, and it is routinely used in fighting garden-variety crime. Does Kerry think that fighting terrorism is a lower priority?
Supreme Court cases dating back to 1967 confirm that delayed notice is entirely permissible under the Fourth Amendment. Judicial approval of the warrants is still required. But delayed notice is sometimes necessary to prevent suspects from destroying evidence or fleeing prosecution. It may also be necessary to protect the lives of informants or intelligence operatives.
Either Kerry doesn't know this, or more likely, he doesn't care. (As for the library records, more on that below.)
MORE insidious, however, is the battle going on in city halls across America.
A platoon of "civil rights" groups have launched a lobbying offensive for the passage of local resolutions that denounce the Patriot Act and call for its repeal. In hysterical terms, these resolutions scream that civil liberties have been violated. Eager protesters, their beards graying with age, pack city council chambers to tell of the horrors they have read on the Internet.
They never cite any case law or specific instances of lost liberties. But they've duped more than 200 credulous city councils across the country into passing these resolutions. And now it's hit a dangerous extreme - crossing the line from denunciation to non-cooperation.
Last month, the Lawrence, Kan., City Commission considered a proposal ordering police officers to refuse to cooperate with federal investigations involving Patriot Act powers. They were following the lead of Arcata, Calif., which made it a crime for city officials to assist federal investigators in Patriot-related cases.
The practical effect of local resolutions is to prevent such police departments from assisting the feds in all terror cases. In any terrorist investigation, intelligence comes from a variety of sources, including surveillance or information-sharing authorized under the Patriot Act. So, to comply with the resolutions, police in such cities must completely withdraw their assistance.
This non-cooperation makes the FBI's job much harder, places local citizens in potential danger and is a profound disservice to the country.
THE third front of this campaign is the most telling. In courts across America, liberal interest groups have raised every possible argument in challenging the Patriot Act's constitutionality.
If the law really were violating the civil liberties of ordinary Americans, some court surely would have reached that conclusion. The problem for the left is that unsubstantiated propaganda (usually) doesn't go very far in court.
Numerous challenges to the Patriot Act have been raised; and virtually all have been squarely rejected. To date, only one court (a federal district court in the Central District of California) has held any provision of the Act unconstitutional - and that in a highly contrived case in which no one was actually arrested for anything.
The plaintiffs in the case succeeded in persuading the judge that their public advocacy on behalf of the Kurdistan Workers' Party of Turkey and the Tamil Tigers of Sri Lanka might hypothetically be construed as providing "material support" to a terrorist organization in the form of "expert advice or assistance." The judge, in a poorly reasoned ruling, held the "expert advice or assistance" language to be unconstitutionally vague.
In reaching this holding, the judge made two obvious errors. First, she failed to see that the plaintiffs lacked standing to bring the suit, since no federal official had ever interfered with any of their activities. Nor was any interference even remotely likely. Their supposed "injury" was based on pure conjecture.
Second, the judge grossly distorted the meaning of the words of the Patriot Act. Congress was plainly referring to "expert advice or assistance" in the form of flight training, chemical warfare and bomb making - not in the form of making long-winded speeches at conferences and writing self-indulgent letters to members of Congress.
In all likelihood, her decision will be reversed on appeal, even in the left-leaning Ninth Circuit Court of Appeals. But what of the other charges that the Left so frequently makes, such as the unconstitutional seizure of library records? Pure fabrication.
Section 215 of the Patriot Act, which authorizes courts to order the production of "tangible things" (including library records) has never been used. And if ever it were used, a court would have to approve and issue any such order. Moreover, what the Left neglects to mention is that grand juries have long had the authority to subpoena such records - without any judicial supervision.
The ultimate danger is not that the Left will defeat the Patriot Act in court. The danger is that it will succeed in pressuring Congress to let provisions of the Act expire in 2005 and succeed in tying the hands of police departments across the country. If this happens, terrorists will have cause to celebrate and American lives will be put in jeopardy.
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