One of the most important changes Congress made in the wake of September 11, 2001, was the enactment of the PATRIOT Act.
That legislation, which had strong bipartisan support, has provided new and better legal tools for law enforcement agencies to prevent terrorist attacks. Although many of the PATRIOT Act's provisions are now permanent, three key national security tools will end unless reauthorized by the end of May. The Senate recently passed a short-term extension of these tools until then. When the issue is revisited, it’s critical Congress pass a longer-term renewal.
The first key tool is the “roving wiretap” authority, which addresses the 21st-century reality that multiple phones, including throwaway cell phones, can be used by terrorists to communicate. This authority means investigators don’t have to go back to court each time a suspect changes phones or phone companies. They can intercept calls on any of the phones a suspect uses. This tool also helps ensure that investigators can thwart a suspect’s efforts to avoid surveillance, for example, by rapidly switching cell phone numbers.
The second tool is the “lone wolf” authority. This provision permits surveillance of individual foreign visitors to the United States who appear to be involved in international terrorism, without regard to whether such persons are known to be affiliated with a particular terrorist group. It addresses a gap in investigative authority that prevented the FBI from searching the computer of Zacarias Moussaoui, the planned 19th September 11 hijacker, prior to the attacks. Terrorists, after all, do not carry membership cards in organizations.
The third tool is the business records authority, which allows the government to get a court order to obtain business records that are either held or generated by a third party. It’s important to find out, for example, if a terrorist stayed at a particular motel the night before he attempted or carried out an attack. That information will help complete the chain of evidence for prosecution and help authorities understand exactly how that attack was plotted. It can also be used to prevent attacks.
Although some have questioned the scope and use of this authority, it is notable that no one has challenged a business records order in court, even though an explicit right to file such a challenge took effect in 2006. To address civil-liberties concerns, the 2006 Patriot Act reauthorization required approval from a high-level supervisory employee before an order is sought, and, after a period of time, requires destruction of material pertaining to U.S. citizens.
These tools are as necessary today as they were when first enacted. To take just one example, it has been reported that the FBI likely used its roving wiretap and business records authorities to thwart a terrorist plot in 2009, in which four former convicts who converted to radical Islam plotted to use explosives to blow up New York synagogues and shoot down airplanes with surface-to-air missiles.
The reality is that the war against terrorists continues. There is good reason these tools were adopted with overwhelming, bipartisan support and why both Presidents Obama and Bush have supported them. I look forward to working with my colleagues to make sure our national security professionals have the tools they need to continue finding and apprehending terrorists before they attack.
