[Politech] Justice Department defends Patriot Act in letter to editor [priv]

From: Declan McCullagh (declan@private)
Date: Wed Apr 28 2004 - 06:46:57 PDT

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    from the deputy attorney general...
    -------- Original Message --------
    Date: 	Wed, 28 Apr 2004 09:02:30 -0400 (EDT)
    [Note: The New York Times ran an abbreviated form of the DAG's letter
    this morning. Below, please find the full letter submitted to the
    	You folks need to talk to real prosecutors and agents before
    you write your next editorial about the Patriot Act.  Your recent
    effort (Editorial, April 21) grossly misconstrued the Act's provisions
    and resorted to empty sloganeering (for instance, that the Act
    "trample[s] on civil liberties").  You and your readers need to master
    the details about the Act and how law enforcement agents use it.
    	Delayed notification searches (so-called "sneak and peek"
    warrants), for instance, have been used for decades prior to the
    enactment of the Patriot Act in drug and organized crime cases.  These
    searches protect witnesses and preserve evidence by postponing
    notification of the target in sensitive ongoing investigations.  I
    have personally used that indispensable tool during my career as a
    federal prosecutor, and if I had time to tell you the circumstances,
    you would be glad I did.  The Patriot Act simply codified this
    traditional law enforcement technique and established a uniform
    national standard for judges to follow.  You should have informed your
    readers that all delayed notification searches (before and after the
    Patriot Act) must be authorized by a federal judge and that in 1979
    the Supreme Court dismissed as "frivolous" an argument that delayed
    notification searches are unconstitutional.
    	You also mangled the description of Section 215, the business
    records provision.  For reasons that always baffle me, that provision
    is often publicly associated with libraries -- a practice you continue
    -- despite the fact that libraries are not mentioned in the Patriot
    Act.  Although I may never figure out how that happened, I do know
    that orders for records under this provision must also be approved by
    a federal judge and thus are more closely scrutinized and more
    difficult to obtain than ordinary grand jury subpoenas, which can
    require the production of the very same records, but without prior
    judicial approval.  That is, the Patriot Act actually made it more
    difficult for counterterrorism investigators to obtain business
    records than criminal investigators.  You might also have told your
    readers that Congress regularly reviews our use of Patriot Act
    provisions, including Section 215, and that when the Justice
    Department last declassified the number of times it had used this
    provision, the number was zero.
    	The provisions of the Patriot Act are too important to our
    counterterrorism work to allow bumper-stickers to substitute for
    informed discussion.  I hope you will continue to write about the
    Patriot Act, but please demand the details before your next effort.
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