Should Republicans go ahead and add Supreme Court Justices to head off Democrats

The ACLU's anoying misleading ad

Victoria Toensing:

“So the government can search your house," claims an American Civil Liberties Union ad attacking the Patriot Act. "Without notifying us," continues the script, "treating us all like suspects." The 30-second spot running on cable news channels is both false and misleading. As part of its assault on the Patriot Act, the ACLU has dubbed Section 213 the "sneak and peek" provision. In fact, it is a decades-old law-enforcement tool called delayed notification to the subject of a search. The Supreme Court has specifically approved as constitutional delayed-notice searches, stating that any argument against the searches is "frivolous."

Contrary to the ACLU's assertion, we all are not "suspects." In order for someone to be searched under section 213, a federal judge must find there is probable cause to believe that a crime has been committed and the place or thing to be searched contains evidence of that crime. This is the criminal standard required for all search warrants. That requirement eliminates most of us as "suspects" and, thereby, possible search victims.

Next, in order to permit a delayed-notification search, the federal judge must make an additional finding that there is reasonable cause to believe that, if the subject is told immediately about the search, there could be death or physical injury, the investigation could be harmed, witnesses could be intimidated, or there is a risk of flight from prosecution. Subjects are always informed of the search; the notification is merely delayed. The law states such time period must be "reasonable." A court may extend the time only for "good cause." Judges do not grant investigators carte blanche. Since the act was passed in October 2001, the average delay of notification has been seven days.

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This misleading ad by the ACLU has aired during the time period that the ACLU put out an equally misleading press release about a trial court's decision, Doe v. Ashcroft. In this second overzealous attempt to disparage the Patriot Act, the ACLU claimed that a federal court had struck down the act's "surveillance power as unconstitutional." In fact, the provision of law struck, which permitted the FBI to obtain customer records from phone and Internet companies in terrorism investigations, was enacted in 1986, not post 9/11. It was introduced by Democratic senator Patrick Leahy.