Adjusting the Patriot Act
FOR MORE than four years, the Patriot Act has been described by critics as a civil-liberties-shredding abomination -- an abuse of power that could have been avoided if only Congress had bothered to read the thing before rubber-stamping it into law just six weeks after 9/11.
Some of the criticism has bordered on the hysterical. Early in his 2004 presidential campaign, John Kerry warned that the law (which he had voted for) was being used by then Attorney General John Ashcroft to turn America into a ''knock in the night" police state. The ACLU claimed in a fund-raising letter that the ''freedom-stealing provisions of the Patriot Act" were the Bush administration's way of ''telling those of us who believe in privacy, due process, and the right to dissent that it's time to surrender our freedom." Senator Russell Feingold of Wisconsin, the only senator to vote against the law in 2001, was saying two years later that it had rendered Americans ''afraid to read books, terrified into silence."
But voters -- who know that American life is noisier and less inhibited than ever, especially when it comes to political ''dissent" -- never gave this heavy breathing about the Patriot Act much credence. That is presumably why Kerry, always a weather vane, went from denouncing it on the campaign trail to avowing that he ''stands by his vote for the Patriot Act" and ''even wants to strengthen" some of it. Feingold's steadfast opposition to the law has done him so little harm that he is now being spoken of as a presidential contender for 2008. Whatever else the Patriot Act has done, it hasn't terrified its detractors into silence.
But that is not to say it cannot be improved.
As I write, congressional negotiators are wrangling over a bill to amend parts of the Patriot Act and settle the fate of 14 sections due to expire on Dec. 31. Most of the fixes being pushed are not unreasonable. One would require the government to show that information it seeks under Section 215 -- which allows investigators to obtain records, documents, and other ''tangible things" -- is genuinely relevant to an antiterrorism investigation. Another would make clear that those who are served with a Section 215 order have the right to consult with attorneys and challenge the order in court. Section 213, under which investigators (with judicial approval) can delay notice of a search for ''a reasonable period," would be amended to specify that ''reasonable" normally means within seven to 30 days. And the FBI's sweeping power to issue ''national security letters" ordering the production of customer records -- and prohibiting the recipient from discussing it with anyone -- should be curbed. Recipients who find such an order or gag rule oppressive ought to have the right to seek relief in federal court.
Even with those adjustments, it would be no bad thing to retain the sunset clauses when the Patriot Act is renewed. Congress doesn't get nearly enough credit for writing those expiration dates into law in the first place. Even as they expanded the government's power in response to a deadly attack, lawmakers recognized that they were acting in haste, and understood that with more time and deliberation they might come to see things differently. The sunset provisions guaranteed that the Patriot Act would become the focus of a vigorous, wide-ranging, nationwide debate on where to strike the balance between the demands of national security and the protections of civil liberty.
For four years, in speeches, articles, letters to the editor, and public forums from sea to shining sea, Americans have had that debate. They have grappled with one of the central dilemmas of any liberal democracy: How far may the state go in repressing those who seek to abolish liberal democracy? The result of that national conversation -- for all the hyperventilation it sometimes engendered -- will almost surely be a shrewder and more thoughtful law.
And for those who insist that any expansion of police power is intolerable, a reminder: The greatest menace to civil liberties in America today is not the Patriot Act that was passed after 9/11. It is the Patriot Act that will be passed after the next 9/11. For if, God forbid, another such attack takes place, Americans by the tens of millions will demand a crackdown unlike anything we have experienced before. Then we might indeed find ourselves ''afraid to read books, terrified into silence." For anyone who cherishes American freedom and due process, there can be no higher priority than preventing another slaughter. The Patriot Act is one weapon in the war against a deadly enemy -- an enemy that will extinguish all our liberties if it ever gets the chance to do so.
Jeff Jacoby's e-mail address is jacoby@globe.com. 
