Most PATRIOT Act ‘Sneak And Peek’ Warrants Used In War On Drugs, Not War On Terror

Not surprisingly, a law passed in the wake of the September 11th attacks has been used mostly for things that have nothing to do with terrorism.

Patriot Act

The USA PATRIOT Act, an Orwellian name for a piece of legislation designed to increase the power of law enforcement to monitor citizens and evade the requirements of the Fourth Amendment if there ever was one, was passed overwhelmingly in the wake of the September 11th attacks under circumstances that made it clear that the vast majority of legislators who voted for it weren’t really aware of what it provided. Indeed, as we later learned many of the powers that the law granted to law enforcement in response to the threat of terrorist attacks were, in fact, powers that authorities had been trying to obtain for years for reasons that had nothing to do with terrorism. One of those powers was the so-called “sneak and peak” warrants, which allow law enforcement to obtain a search warrant and conduct a search without the target of the search ever being aware that it had happened, The justification given for such authority being, of course, that we don’t want to let terrorists to know that we’re watching them.  A new study by the Electronic Frontier Foundation, though, reveals that the majority of such warrants are granted in cases that have absolutely nothing to do with terrorism:

A closer look at the number of sneak and peek warrants issued (a reporting requirement imposed by Congress) shows this is simply not the case. The last publicly available report about sneak and peek warrants was released in 2010; however, the Administrative Office of the US Courts has finally released reports from 2011, 2012, and 2013.

What do the reports reveal? Two things: 1) there has been an enormous increase in the use of sneak and peek warrants and 2) they are rarely used for terrorism cases.

First, the numbers: Law enforcement made 47 sneak-and-peek searches nationwide from September 2001 to April 2003. The 2010 report reveals 3,970 total requests were processed. Within three years that number jumped to 11,129. That’s an increase of over 7,000 requests. Exactly what privacy advocates argued in 2001 is happening: sneak and peak warrants are not just being used in exceptional circumstances—which was their original intent—but as an everyday investigative tool.

Second, the uses: Out of the 3,970 total requests from October 1, 2009 to September 30, 2010, 3,034 were for narcotics cases and only 37 for terrorism cases (about .9%). Since then, the numbers get worse. The 2011 report reveals a total of 6,775 requests. 5,093 were used for drugs, while only 31 (or .5%) were used for terrorism cases. The 2012 report follows a similar pattern: Only .6%, or 58 requests, dealt with terrorism cases. The 2013 report confirms the incredibly low numbers. Out of 11,129 reports only 51, or .5%, of requests were used for terrorism. The majority of requests were overwhelmingly for narcotics cases, which tapped out at 9,401 requests.

(…)

The numbers vindicate privacy advocates who urged Congress to shelve Section 213 during the Patriot Act debates. Proponents of Section 213 claimed sneak and peek warrants were needed to protect against terrorism. But just like we’ve seen elsewhere, these claims are false. The government will continue to argue for more surveillance authorities—like the need to update the Communications Assistance to Law Enforcement Act—under the guise of terrorism. But before we engage in any updates, the public must be convinced such updates are needed and won’t be used for non-terrorist purposes that chip away at our civil liberties

These numbers should not come as a surprise, of course, Much of this was already known back in 2009 when the PATRIOT Act was being reauthorized and former Wisconsin Senator Russ Feingold was among those few Congressman and Senators who was actually trying to get to the truth:

It isn’t a surprise, of course, that the powers granted by the PATRIOT Act have been used far more in connection with the War On Drugs than they have been in connection with terrorism related investigations. For one thing, even in the immediate wake of the September 11th attacks the actual number of active terrorist investigations in the United States based on credible evidence was relatively small. The War On Drugs, on the other hand, is a continually growing field of investigation for law enforcement, a field that allows them to continually get legislatures to give them more and more money, and, thanks to forefeiture laws that allow them to seize everything from cars to home because of alleged connections to a drug operation, a fairly lucrative line of business, it’s not surprising that they would use tools that the legislature granted them in a panic over terrorism in the wake of the worst attack on the Continental United States since the War Of 1812 to increase their power in other areas. This is especially true given the fact that powers like the “sneak and peek” warrant are things that they had been trying to get from Congress and the Courts since well before Islamist terrorism was something that anyone had even really thought to be a possible threat.

There are many lessons that we can draw from this, as Radley Balko notes about some of the lessons these numbers can teach us:

  • This is also an argument against rashly legislating in a time of crisis. On Sept. 11, 2001, the federal government failed in most important and basic responsibility — to protect us from an attack. We responded by quickly giving the federal government a host of new powers.
  • Assume that any power you grant to the federal government to fight terrorism will inevitably be used in other contexts.
  • Assume that the primary “other context” will be to fight the war on drugs. (Here’s another example just from this month.) I happen to believe that the drug war is illegitimate. I think fighting terrorism is an entirely legitimate function of government. I also think that, in theory, there are some powers the federal government should have for terrorism investigations that I’m not comfortable granting it in more traditional criminal investigations. But I have zero confidence that there’s any way to grant those powers in a way that will limit their use to terrorism.
  • Law-and-order politicians and many (but not all) law enforcement and national security officials see the Bill of Rights not as the foundation of a free society but as an obstacle that prevents them from doing their jobs. Keep this in mind when they use a national emergency to argue for exceptions to those rights.
  • When critics point out the ways a new law might be abused, supporters of the law often accuse those critics of being cynical — they say we should have more faith in the judgment and propriety of public officials. Always assume that when a law grants new powers to the government, that law will be interpreted in the vaguest, most expansive, most pro-government manner imaginable.

All of this, and the other lessons that Balko notes at the link can be summed up with the idea that not only does power corrupt, but power that is largely unchecked and which is granted in a moment of panic, as happened here, corrupts absolutely. If we lived in a rational country, Congress would reexamine the PATRIOT Act and scale back powers like this that are obviously not being used for their intended purpose, or pass legislation limiting the circumstances under which they can be sued. That never happens, of course, because when powers like this are granted they are rarely, if ever, scaled back. If anything, they get expanded and they become permanent. In this case, the fact that those powers were granted as part of some amorphous “war on terror” that doesn’t seem to have an end makes repeal or change even less likely. Indeed, if there is another mass attack in the future, the response will not be to wonder why the massive new powers granted law enforcement in the wake of the 2001 attacks didn’t stop it, but to grant even more power that will, inevitably, be used for something other than investigating terrorists.

FILED UNDER: *FEATURED, Crime, Intelligence, Law and the Courts, National Security, US Politics, , , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. PD Shaw says:

    Not surprising. You never want a serious crisis to go to waste.

  2. Rafer Janders says:

    Surprise, surprise….

  3. M. Bouffant says:

    You mean the “War on Certain Classes & Colors of People Who Happen to Use Drugs,” don’t you?

  4. michael reynolds says:

    Two easy fixes:

    1) Amend the law, duh.

    2) End the drug war and go to a treatment model like 100% of all rational people recommend.

  5. President Camacho says:

    Well considering poppy production is at an all time high in Afghanistan despite the billions we spent trying to eradicate it, we might need this to go after heroin.

    When will we admit that the War On Drugs has failed? If we spent more money on treatment programs, the country would be much better off – an addict sitting in jail w/o treatment will be an addict upon release.

  6. gVOR08 says:

    After Doug’s Tuesday post on gun control the pro-gun people were asking what laws we wanted passed that would have prevented Sandy Hook. Wouldn’t have made a difference to Sandy Hook per se, but if we want to reduce gun violence we must end this incredibly destructive and counterproductive War on Drugs.

  7. Paul L. says:

    After Doug’s Tuesday post on gun control

    I made the following point:

    The powers of the Patriot act was only to be used against terrorists but the DOJ uses it mainly for drug crimes.

    But progressives claim that expanded background checks would never be use by the DOJ to create a backdoor gun registry.

  8. gVOR08 says:

    @Paul L.: If DOJ wanted a registry wouldn’t it be easier to supoena the NRA list?

  9. gVOR08 says:

    @President Camacho: I used to argue we could just buy Vietnam for what we were spending to blow it up. We wanted to boost the Afghan economy. We wanted to reduce heroin production. We wanted to deny trafficking revenue to the bad guys. Why didn’t we just buy the d**n poppies and burn them? (Might have made some Afghan buzzards really happy.)

  10. Gustopher says:

    @Paul L.: What’s wrong with a gun registry? I don’t see anything in the constitution granting a right to anonymously bear arms.

    I would support a broad right to privacy, enshrined explicitly in the constitution, rather than a right inferred from the 4th, 5th and 9th Amendments. But, until that time… why not track the guns, and make the owners register them (and, perhaps, someday, be responsible for the damage that their guns cause)?

  11. PD Shaw says:

    @Gustopher: That’s crazy talk. Next thing you’ll want me to do is register my car.

  12. wr says:

    @michael reynolds: But Michael, I thought you believed we should all happily accept this, knowing that our government will never use these tools against us.

  13. wr says:

    @Paul L.: Yes, it turns out there is absolutely nothing that happens anywhere in the world that some gun nut will not use to justify his paranoia.

  14. Paul L. says:

    @Gustopher:

    What’s wrong with a gun registry?

    Nothing except every state that has a gun registry used it for confiscation.

    @gVOR08:
    The NRA knows I support gun rights. They do not know what guns I own. BTW nice to see you have no problem with the DOJ subpoenaing the NRA member list.
    @PD Shaw:
    You do not have to register your car, get insurance or have a drivers license if you drive it only on your property.
    Want the same standards for guns. Or are you going to tell me about how cars are different. and guns have one purpose to kill people.

  15. Hal_10000 says:

    @gVOR08:

    After Doug’s Tuesday post on gun control the pro-gun people were asking what laws we wanted passed that would have prevented Sandy Hook. Wouldn’t have made a difference to Sandy Hook per se, but if we want to reduce gun violence we must end this incredibly destructive and counterproductive War on Drugs.

    I agree absolutely with this. The NRA, unfortunately, is a big supporter of the War on Drugs and police militarization. They can’t see the contradiction, no matter how many times it is pointed out to them.

    As for the main subject of this post, I am Hal’s total lack of surprise. The entire Patriot Act consisted of powers federal agents had wanted for over a decade. But Bush I, Clinton and Congress wouldn’t give them that power, even when the crime rate was at its peak. The feds didn’t even wait until the bodies were cold before decreeing that *this* was the reason 9/11 happened (if you read Wright’s outstanding “The Looming Tower”, you’ll see how ridiculous that statement was). This was *always* intended to apply to more than just the War on Terror.

  16. michael reynolds says:

    @wr:

    No, I said we should accept it as relates to terrorism. And I remain only very mildly upset about phone surveillance. If you informed me tomorrow that the NSA had listened in on my calls my first reaction would be pity for the poor s.o.b. who had to sit through discussions of book cover design, my son’s grades and the doctor’s bill I forgot to pay.

    Pass a law limiting the application to terror-related snooping. And end the drug war which has corrupted far more than this one area.

  17. michael reynolds says:

    @Hal_10000:

    I agree absolutely with this. The NRA, unfortunately, is a big supporter of the War on Drugs and police militarization. They can’t see the contradiction, no matter how many times it is pointed out to them.

    It’s not a contradiction to them. Heavily-armed cops, heavily-armed drug dealers, terrorized neighborhoods, racial polarization? That’s all manna from heaven to them. It all sells guns and generates profit. Same as random street crime, serial killers, rapes, school shootings, it’s all cha-ching to them. Remember, the NRA only pretends to care about “rights” and their idiot membership. Their real purpose is profit for manufacturers and retailers. That explains 100% of their positions. They are completely consistent once you realize a gun sale is a gun sale is a gun sale to them.

  18. PD Shaw says:

    @Paul L.: You don’t have to tell me. I solely use my car to do donuts in my front lawn on Halloween to scare away the hoodlums. Still, I have a VIN number that offends my sense of decency.

  19. Barry says:

    @Paul L.: “Nothing except every state that has a gun registry used it for confiscation.”

    No, but keep on lying.

  20. Matt says:

    1989 Roberti-Roos Assault Weapons Control Act

    The Roberti-Roos Act allowed people in California to keep their SKS Sporters, even if they had the detachable magazine, so long as they passed a background check and registered them with the state.

    In 1997, Attorney General Daniel Lungren decided that he had changed his mind, after which these same rifles, dutifully registered by many law-abiding gun owners, were no longer legal. No change had occurred in the law; the AG simply changed his mind and with the stroke of a pen, ordered anyone in possession of these rifles to turn them in, ship them out of state, or have them destroyed.

    http://www.level-headed.net/wp-content/uploads/2013/05/CA-SKS-BeforeAfterLetters.jpg

    Few years back a Democratic senator in California added on to a bill a provision declaring the rest of the SKSes illegal and required confiscation of the guns registered with the state (the whole bit including the SKSes). The bill damned near passed without people noticing.

    The rest of what he’s talking about I imagine is covered here.
    http://www.level-headed.net/2013/05/gun-confiscation-in-america/

  21. anjin-san says:

    @Matt:

    I’m curious, why is the party affiliation of Democrats noteworthy in your comments, but not that of Republican Dan Lungren?

  22. alex says:

    @President Camacho: the U.S. government is helping them grow the poppies in Afghanistan.

  23. Matt says:

    @anjin-san: Because Republican Dan Lungren wasn’t the one that introduced the bill I was discussing? I couldn’t remember the representative’s name but I did remember he was a member of the Democratic party. I called Dan out specifically so I don’t see why affiliation mattered.

    I don’t even vote Republican btw.. They lost their minds over a decade ago.