One of the more controversial provisions of the Patriot Act was to broaden the “sneak-and-peek” power for federal law enforcement officials. The provision allows investigators to conduct searches without informing the target of the search. We were assured at the time that this was an essential law enforcement tool that would be used only to protect the country from terrorism. Supporters argued that it was critical that investigators be allowed to look into the lives and finances of suspected terrorists without tipping off those terrorists to the fact that they were under investigation.
More than a decade later, the Electronic Frontier Foundation has published an analysis on use of the sneak-and-peek power. Just as critics predicted, it’s now a ubiquitous part of federal law enforcement.
According to the EFF, there were over eleven thousand sneak and peek requests in 2013. Of those, only half a percent were terrorism cases. The vast majority were for drug investigations with the remainder for other non-terrorism criminality.
This is the reason why, however much I have criticized Bush for his War on Terror excesses, Barack Obama has been far far worse. It’s not just that sneak-and-peak requests have tripled under his watch. It’s not just the massive expansion of the drone war. It’s not just the explosion of surveillance. It’s that he has now given the bipartisan kiss of approval to all of this. Bush may have started the War on Terror, but Barack Obama has cemented it in place to an excess that would make John Ashcroft blush (Ashcroft, whom you may remember as a favored whipping boy of Democratic pseudo-civil libertarians, refused to extend the domestic surveillance program).
Radley has a few lessons we should learn from this. You should really read the whole thing. Here’s the most important:
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.
We can not rely on politicians to defend our civil liberties. We must actively use them and defend them. And any intrusion into our liberty must be opposed, no matter what crisis is at hand. If we don’t defend or liberty, who will?