The Washington Post
Sunday, July 18, 2004; Page B06
WITH PRESIDENT Bush calling on Congress to pass a permanent version of the USA Patriot Act and many liberals demanding the bill's repeal, the Justice Department's report last week on implementation of the law was an opportunity to inject a dose of empirical fact into a stale and often uninformed debate. Key authorities in the controversial legislation will expire next year, so the discussion of the legislation's merits is deeply important. Yet public debate over the law's fate has fallen victim to election-year demagoguery. Critics talk about it as though it were a comprehensive menace, while President Bush and Attorney General John D. Ashcroft often treat skepticism of it as softness in the war on terrorism.
Unfortunately, the report is more of a cheerleading exercise than a comprehensive account. It cites numerous instances in which Patriot Act authorities were used in important investigations. This is useful material, because it suggests which provisions are offering the biggest dividends to investigators: those that facilitate information-sharing within the government and allow more streamlined wiretapping and search procedures. But reasonable observers never doubted that unshackling investigators would aid them in catching bad guys. The question is what else it would do -- what the civil liberties impact would be and how these powers would be used in cases that don't lead to high-profile prosecutions.
The Justice Department report does not begin to answer these questions. Nor does it offer the sort of systematic data on the frequency of using the new powers that will be necessary to assess the act comprehensively. The department absurdly maintains that basic data concerning some of the law's most controversial provisions must remain classified -- though Mr. Ashcroft has released bits when it was politically convenient for him to do so.
The truth is that the Patriot Act is a complicated law that few people understand in its entirety. It was mashed together in the immediate aftermath of the Sept. 11, 2001, attacks, when it was not clear exactly what new tools were needed against terrorism or how dangerous to liberty those tools might be. A lot of guesswork went into the law's creation, and it is likely that Congress and the administration guessed better in some areas than in others. There is little evidence at this stage that any of the provisions have given rise to abuses. But some provisions, including some of the most valuable of the new powers, could be dangerous in the wrong hands or in the absence of rigorous oversight.
Assessing the Patriot Act requires taking it apart and examining its major pieces separately. Former deputy attorney general Larry D. Thompson suggested last year that a biparti- san commission be appointed to study the law in detail. This seems like a good idea, particularly if such a commission could have access to the sort of detail that would permit a systematic evaluation. A policy decision of this importance should not be made on the basis of competing press releases.