Privacy SOS

Powers claimed for war on terror used in war on drugs

Please note that by playing this clip YouTube and Google will place a long term cookie on your computer.

Back in 2009, then Senator Russ Feingold warned the public that the Patriot Act was being used in ways the public didn’t understand. Rushed through congress and sold to the American people as a comprehensive reform package that would enable intelligence and law enforcement to combat terrorism after September 11, the Patriot Act, Feingold warned, was in important ways actually being used to wage the drug war.

Eight years after the attacks, in September 2009, Senator Feingold had the opportunity to question then Assistant Attorney General David Kris and Inspector General Glenn Fine at a Senate Judiciary Committee hearing on Patriot Act reauthorization. His line of questioning serves as a stark reminder, four years later, that little has changed with respect to state secrecy and the so-called ‘war on terror.’ It is also a reminder of what informed, serious congressional oversight looks like.

Feingold drilled down on one particularly important and little discussed aspect of the shifting legal landscape after 9/11. We were, and continue to be, told that we need to sacrifice some of our rights because we are in a never ending war with terrorists who seek to do us harm. But as the senator from Wisconsin showed during that September 2009 hearing, those powers are more often used to go after regular criminal offenders. 

And in the United States, you can guess what that means: they are used to wage the drug war.

Here's the relevant part of the questioning. You can see the video above.

Feingold: Mr. Kris as you know the Patriot Act provided statutory authority for the government to obtain special ‘sneak and peak’ criminal search warrants that allow agents to break into Americans’ homes and conduct secret searches without telling them for weeks, months or even longer. It is true, isn’t it, that these searches can be conducted, also, in run of the mill criminal cases, and do not require any connection to terrorism?

Kris: That’s true, both —

Feingold: Thank you. And in fact according to a July 2009 report of the Administrative Office of the US Courts, isn’t that exactly how this authority has recently been used? The report shows that in fiscal year 2008, sneak and peak search warrants were requested 763 times, but only three of those initial requests, just three, were in terrorism cases. The vast majority were for drug cases. Now is that your understanding of that report and does it concern you at all?

Kris: It is my understanding and I want to say thank you to your staff, who alerted me and allowed me to read the report in advance of this hearing. It does say here that 65% of, these are criminal sneak and peak, were in drug cases. Obviously, just to make something clear which I know you understand, on the FISA side, the searches that we do pursuant to FISA, are not exactly sneak and peak, they’re generally covert altogether. This authority here on the sneak and peak side, on the criminal side, is not meant for intelligence, it’s meant for criminal cases. So I guess it’s not surprising to me that it applies in drug cases. 

Feingold: Well as I recall it was in something called the USA Patriot Act, which was passed in a rush after an attack on 9/11 that had to do with terrorism, it didn’t have to do with regular run of the mill criminal cases. Lemme tell you why I’m concerned about these numbers. That’s not how this was sold, to the American people. It was sold as stated on DOJ’s website in 2005 as being necessary “to conduct investigations without tipping off terrorists.” I’m going to say, it’s quite extraordinary to grant government agents the statutory authority to secretly break into Americans’ homes in criminal cases and I think some Americans might be concerned that it’s been used hundreds of times in just a single year in non-terrorism cases. And that’s why I’m proposing additional safeguards….without these changes this is a dramatic change in our criminal law that doesn’t necessarily relate to terrorism.

© 2021 ACLU of Massachusetts.