Prognosis: Last year, in a dramatic refusal to grant a DOJ request, the FISA court declined to implement the Patriot provision allowing for information sharing between prosecutors and investigators. But in November 2002, the secret FISA appeals court, which had never before been convened, found that the lower FISA court had erred in refusing to lower the wall between prosecutors and investigators. Only the government had been represented at oral argument, and only the government has the right of appeal under the law.
Enough to get you through a cocktail party: FISA was a constitutional "bargain" struck by a Congress concerned that the Executive branch needed some special leeway for foreign intelligence surveillance without undermining American criminal procedures as laid out in the Constitution. Broadening FISA so that it may be used against Americans, with searches initiated by the prosecutorial arm of the government, against ordinary criminals, subverts that bargain.
Section 213 aka "Sneak and Peek-a-boo"
Section 213 is another extremely controversial part of the Patriot Act, engendering protest from across the political spectrum. By allowing the state to rummage first and let you know later (sometimes much later), the act upends the traditional requirement that the state advise you in advance that you are being searched.
What it does: "Sneak and Peek" warrants extend sneak-and-peek authority from FISA searches to any criminal search. This allows for secret searches of your home and property without prior notice.
The law before and how it changed: Police used to have to "knock and announce" their intention of searching before executing any warrant. This gave the person being searched advance notice and a clear picture of what authorities were looking for. In 1978 FISA changed the law, allowing the FISA court to authorize sneak-and-peek warrants but only in cases where "foreign powers or their agents" were suspected of terrorism. The Patriot Act expands the use of these warrants if "immediate notification of the execution of the warrant may have an adverse result." Under Patriot, such warrants are no longer limited to terrorism investigations but now extend to include any criminal investigation at all. Moreover, the act requires only that notice be given of the search or wiretap "within a reasonable period of its execution," which may be extended by the court for "good cause shown."
Supporters of the act argue that courts have always allowed officers to delay notification of a warrant if knowledge of the warrant would risk witness intimidation, the destruction of evidence, the impossibility of prosecution, or flight of the suspect. And the Supreme Court has held that these warrants are constitutional. Ashcroft also contends that the act limits the use of sneak-and-peek warrants to specific circumstances, so that its use might actually decline. But it's undeniable that the government can almost always argue that later notification would be helpful. And because the standard under 213 is low, sneak-and-peeks will be authorized anytime notification jeopardizes an investigation. Since few criminal suspects really help the state during searches, this looks to be an exception that might swallow the rule. And ultimately, the best check against the police ransacking your property indiscriminately (rather than sticking to the particulars of their warrant) continues to be your glowering presence nearby.
How it's been implemented: The Department of Justice reported to the House Judiciary committee in May that it had "requested a judicial order delaying notice of the execution of a warrant under section 213 forty-seven times, and the courts have granted every request." Courts can also permit seizure of tangible property if there's "reasonable necessity" for doing so; they've granted seizure requests on 14 occasions and rejected only one request, ruling that "photos of the relevant items would be sufficient."
The delays in notification have been of varying durations, some as short as one day, some as long as 90. The DOJ can request extensions of these periods repeatedly and indefinitely, and it has so far done so 248 times. Some courts have also "permitted delays of unspecified duration lasting until the indictment was unsealed," according to the DOJ's report.
Would you know if Section 213 had been used on you? Eventually—they do still have to tell you that you've been searched, although the law provides that the period of time may be extended indefinitely for good cause.
Sunsets in 2005: No.
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