October 18, 2004 | National Review Online

ACLU Misleads; We Are Not All Suspects

We are not all suspects.

By: Victoria Toensing.

“So the government can search your house,” claims an American Civil Liberties Union ad attacking the Patriot Act. “Without notifying us,” continues the script, “treating us all like suspects.” The 30-second spot running on cable news channels is both false and misleading. As part of its assault on the Patriot Act, the ACLU has dubbed Section 213 the “sneak and peek” provision. In fact, it is a decades-old law-enforcement tool called delayed notification to the subject of a search. The Supreme Court has specifically approved as constitutional delayed-notice searches, stating that any argument against the searches is “frivolous.”

Contrary to the ACLU's assertion, we all are not “suspects.” In order for someone to be searched under section 213, a federal judge must find there is probable cause to believe that a crime has been committed and the place or thing to be searched contains evidence of that crime. This is the criminal standard required for all search warrants. That requirement eliminates most of us as “suspects” and, thereby, possible search victims.

Next, in order to permit a delayed-notification search, the federal judge must make an additional finding that there is reasonable cause to believe that, if the subject is told immediately about the search, there could be death or physical injury, the investigation could be harmed, witnesses could be intimidated, or there is a risk of flight from prosecution. Subjects are always informed of the search; the notification is merely delayed. The law states such time period must be “reasonable.” A court may extend the time only for “good cause.” Judges do not grant investigators carte blanche. Since the act was passed in October 2001, the average delay of notification has been seven days.

Why would the government need or want such authority?

Here are a couple of examples: 1: Law enforcement has information there are explosives in a rented locker and the renter is planning with others, unknown to the government, to bomb a civilian target. Agents need to search the locker to establish that explosives are there and to render them ineffective. To do so, they must obtain a search warrant. A law-enforcement degree is not required to figure out that, if explosives are found, it would be stupid to notify the putative bomber immediately lest he warn his accomplices. Rather, the locker should be put under surveillance to see if the identities of conspirators can be determined.

2: The FBI receives information from a foreign-intelligence service that a known terrorist cell is sending cash in packages marked “Reading Materials” to a specific person in the United States, who has overstayed his student visa. Sound like the planning for 9/11? The FBI would want to search the package to verify the foreign-intelligence information. It would be investigative malpractice to notify the recipient immediately. Better to use the information to get a wiretap to learn what the terrorists are planning.

The ACLU would have you believe the Patriot Act gave a new power to prosecutors. It did not. I used delayed notice searches as a federal prosecutor in the late 1970s against drug dealers. Prior to the Patriot Act, there was no statute, but case law permitted delayed notice. Because authority to delay notification developed through the courts, there were different rules depending on in which of the twelve judicial circuits the search was taking place. Some said 30 days was a reasonable time period; others permitted delay until the government indicted the subject of the search. Some courts said the search could be delayed for “good cause,” while others specified the reasons. The Patriot Act provides the same rules and standards throughout the country. Which state of the law is fairer, mish-mash or uniformity?

The ACLU wants you to fear that the Patriot Act is responsible for the government having the power to subject any one of us to a baseless, secret search of our house without ever telling us.

In truth, the government already had the same limited Supreme Court-sanctioned power prior to the Patriot Act; the search cannot take place without a court determining there is probable cause of criminal activity; delayed notification cannot be authorized unless the court makes an additional finding there is a legitimate law-enforcement concern if immediate notice is given; the court determines what length of time is reasonable; and the person is informed of the search, usually within a week.

This misleading ad by the ACLU has aired during the time period that the ACLU put out an equally misleading press release about a trial court's decision, Doe v. Ashcroft. In this second overzealous attempt to disparage the Patriot Act, the ACLU claimed that a federal court had struck down the act's “surveillance power as unconstitutional.” In fact, the provision of law struck, which permitted the FBI to obtain customer records from phone and Internet companies in terrorism investigations, was enacted in 1986, not post 9/11. It was introduced by Democratic senator Patrick Leahy.

I support organizations challenging the power of the government. I do so myself as a criminal-defense attorney. However, the ACLU is not protecting the rights of citizens by frightening them with false claims.

— Victoria Toensing, a founding partner of diGenova & Toensing, is a senior fellow for the Foundation for the Defense of Democracies.