Patriot Act used in tunnel monitoring
SEATTLE – The USA Patriot Act made it possible for federal investigators to search and bug a 360-foot tunnel under the U.S.-Canadian border and then watch and listen as hundreds of pounds of marijuana was carried through it.
Government agents surreptitiously installed video and audio devices after obtaining a “sneak and peek” warrant, which allows searches that leave no trace and are conducted without immediate notification of the subject.
Regular search warrants require that the subject be notified immediately after a search. Usually notice is left at the scene, with details about any removal of items.
With a sneak-and-peek warrant – also called a delayed-notice warrant – investigators arrange the timeline of the delay with a judge. Most often, suspects are notified within 30 days, said Doug Whalley, an assistant U.S. attorney in Seattle.
As Congress prepares to reauthorize parts of the law, some legislators and civil-rights groups want to scale back some of the powers it grants. The Senate Judiciary Committee, for example, recently introduced a bill that would greatly limit how sneak-and-peek activity is conducted.
“I think that the power that the government has under the Patriot Act … is clearly contrary to the notion underlying the Fourth Amendment,” said former U.S. Rep. Bob Barr, a Republican from Georgia who leads an organization called Patriots to Restore Checks and Balances. The secret warrants are “being used in cases that have nothing whatsoever to do with terrorism,” Barr said.
Whalley said the Patriot Act codified already-existing law and made it difficult to challenge the use of sneak-and-peek warrants in court. Before the law went into effect, rulings were made on a case-by-case basis. Appeals courts could decide whether the warrants were improperly issued.
Under Patriot Act warrants, suspects often are not aware for months that their properties have been searched, said Lisa Graves, senior counsel for legislative strategy for the American Civil Liberties Union.
“The Justice Department decided to create a statutory right across the board, to try and create a national right of law enforcement to create secret searches of businesses and homes, secret seizures of evidence,” she said.
Whalley said prosecutors “don’t eagerly use these methods of surveillance. The process is very labor-intensive. If you watch TV, they get a search warrant within 10 minutes. Something like this, where you want to go in and not announce your presence if we’re lucky, the turnaround is two days, and that’s fast.”
When discovery of the tunnel was announced last month, federal officials cited concerns it could be used to smuggle terrorists or weapons, not just drugs.
Civil-rights advocates are skeptical.
“The tunnel has nothing to do with the war on terrorism. … There’s absolutely no reason why the authorities couldn’t have availed themselves of the normal ways possible,” said Bob Mahler, a Seattle criminal-defense attorney.
“They just didn’t feel the need to use the normal, constitutionally mandated processes because they had this new tool that was given to them,” Mahler said.