Guest Columnist — Mark Corallo: Law preserves freedom while fighting terrorism

Friday, Nov. 14, 2003 | 6:54 a.m.

Mark Corallo is director of Public Affairs for the Department of Justice. He writes from Washington.

WEEKEND EDITION November 14, 2003ov. 15 - 16, 2003

On Sept. 11, law enforcement learned they lacked adequate tools to prevent terrorism. Congress responded by spending six weeks carefully negotiating the Patriot Act to keep America safe. Passed overwhelmingly, 98 to 1 in the Senate and 357 to 66 in the House of Representatives, the law was designed to help fight terror within the framework of American civil liberties. Since then, it has played a part in a number of successful operations to protect America from the deadly plans of terrorists.

The Patriot Act does three simple things: it allows law enforcement to share information in order to prevent acts of terror; it allows us to update our laws to keep up with new technologies and new threats; and it allows us to use the same crimefighting tools against terrorists that we have used successfully for years against drug dealers and the Mafia.

First, the law ensured that government could legally coordinate and share information to protect national security. Police officers, FBI agents, federal prosecutors, and intelligence officials can now "connect the dots" to uncover terrorist plots. As Sen. John Edwards, D-N.C., said in support of the Patriot Act, "we simply cannot prevail in the battle against terrorism if the right hand of our government has no idea what the left hand is doing."

Second, in an age when terrorists have cellular, even satellite phones, we must anticipate and adapt to their new tactics and technology. Now with the approval of a federal court, prosecutors can now track terror suspects even when they use multiple phones to avoid detection.

Third, the law ensures that investigators can use the same tools in terrorism cases that they have used for decades in drug, fraud and racketeering cases. For example, sometimes when criminals are tipped off too early to an investigation, they flee, destroy evidence, intimidate or kill witnesses, cut off contact with associates, or take other action to evade arrest.

Therefore, federal courts in narrow circumstances have long allowed law enforcement to delay for a limited time when the subject is told that a judicially-approved search warrant has been executed. This tool can be used only with the approval of a federal judge, when immediate notification of the search may result in death or physical harm to an individual, flight from prosecution, evidence tampering, witness intimidation, or serious jeopardy to an investigation.

In all cases, law enforcement must give notice of the search, but the reasonable delay gives law enforcement time to identify the criminal's associates, eliminate immediate threats to our communities, and coordinate the simultaneous arrests of multiple individuals. These delayed notification search warrants have helped fight illegal drug crime for decades, and can help prevent terror as well.

A small but vocal group of critics have launched a campaign of lies and misinformation to scare Americans about the important tools in the Patriot Act. For instance, critics charge that the FBI is monitoring the reading records of Americans. It's not true.

Business records, including library records, have been available to law enforcement for decades through grand jury investigations in criminal cases. The Patriot Act simply allows the government to obtain similar records in national security investigations -- and only with a federal judge's permission. It does not allow law enforcement unchecked access to libraries or other businesses -- and the Justice Department recently unclassified the fact that Section 215 of the Patriot Act has never been used to obtain a single library, medical or business record.

Another criticism is that some provisions of the Patriot Act may be used to fight crime other than terror. But consider, for example, that one key way to fight terrorists is to cut off their flow of money. Terrorism is sometimes funded by "ordinary" criminal activity such as drug trafficking, credit card fraud, or identity theft.

In one North Carolina case, investigators looking into a large-scale cigarette smuggling scheme only found out well into the investigation that the profits were being funneled to the terrorist group Hezbollah. So, members of Congress felt it important to add title 3 of the Patriot Act to strengthen our money laundering and asset forfeiture laws in order to fight terrorism and other kinds of crime that might finance terror. Once Congress passes a law providing additional tools, law enforcement has a duty to use them to fight crime. Americans should expect no less.

For example, Congress expressly allowed Sec. 314 to be used in either money laundering or terrorism cases. If credible evidence exists that a suspect is involved in either, the government can merely inquire as to where the suspect has a relationship with a financial institution. Law enforcement must then issue a grand jury subpoena to the financial institutions in order to get the information they have.

Suppose law enforcement knew that a Mohammad Atta was in the U.S. and was prepared to carry out a terrorist attack ... but did not know where he was. The government could now find out if he had any bank accounts in the U.S. Law enforcement would still need to present them with a subpoena in order to get their information, but if he had a bank account, as the real Mohammad Atta did, he could be more easily located.

Despite the misinformation campaign, the American people -- 69 percent in a recent poll -- understand the law supplies tools needed to fight terrorism. Congress reviews our use of the Patriot Act, and Sen. Dianne Feinstein, D-Calif., recently said, "I have never had a single abuse of the Patriot Act reported to me. My staff e-mailed the ACLU and asked them for instances of actual abuses. They e-mailed back and said they had none." The House Judiciary Committee reported that our use of Patriot "is not being misused or abused," and no court in America has found any provision of the Patriot Act to violate the Constitution.

The Justice Department is ever mindful of what we are fighting to secure -- freedom, life and liberty -- even as we battle terror. We invite all Americans to visit our website at www.lifeandliberty.gov.