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The Patriot Act isn't broken

Its abuse must stop. Proper protection is key.

(Page 2 of 2)

Police still need a warrant before conducting a search, and they can't decide to delay notice by themselves. On both counts, a judge has to give the go ahead first. Plus, cops ordinarily have to tell the suspect about the search within 30 days.

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Then there's the much-maligned "libraries" provision. In garden-variety criminal cases, grand juries are able to subpoena all kinds of documents from banks, phone companies, gas stations, and other businesses. The Patriot Act established a similar tool for terrorism investigations. And the terrorism rules are actually more protective of civil liberties.

Federal prosecutors can issue grand jury subpoenas basically unilaterally, but the Patriot Act requires the FBI to get a court order first. Also, the act expressly protects First Amendment rights – a topic about which the grand jury rules are conspicuously silent.

It's true that the Patriot Act conceivably could be applied to libraries and bookstores. But that's a lot less alarming than it might sound. Grand juries issued subpoenas to a half-dozen libraries in the Unabomber investigation. And a grand jury in New York demanded library records during the 1990 Zodiac gunman investigation. If subpoenas are good enough for domestic criminals, they ought to be good enough for foreign terrorists.

That's not to say The Patriot Act is perfect. As with any law, there's always a risk of abuse.

In March 2007, an internal Justice Department audit found that the FBI had misused its power under the Patriot Act to gain access to terrorism suspects' telephone records. And newspapers have reported that relatively minor in-flight disturbances have led to passengers facing federal charges of interfering with flight crew. Abuses like these are not to be taken lightly.

But the solution is not to neuter the Patriot Act. The act remains a vital weapon in the struggle against global terrorism.

Perhaps the best way to ensure that the act remains faithful to fundamental American values is to insist on greater transparency and oversight: More hearings on Capitol Hill; more audits; and, above all, more disclosures to the public.

Policymakers in the new administration and in Congress – and ordinary Americans like us – should keep tabs on counterterrorism agents to see that they don't abuse the powers they've been given. But we also need to make sure agents keep the tools they need to get the job done. Al Qaeda hasn't given up and neither should we.

Nathan A. Sales is a law professor at George Mason University. He previously served at the Department of Justice (where he helped write the Patriot Act) and the Department of Homeland Security.