December 14, 2005

More "Patriot" Doubters

Yesterday, in Patriot Paroxysms, I wrote the following:

All eyes turn now to the Senate, where the biggest problems lurk. Those problems are named John Sununu (R-NH), Lincoln Chafee (R-RI), Susan Collins (R-ME), Olympia Snowe (R-ME), Lindsay Graham (R-SC), and possibly Arlen Specter (R-PA) -- though it looks as though Arlen is satisfied with the deal cut in the conference committee to reauthorize the most controversial provisions for an additional four years... basically, to kick the can down the road a bit more, leaving it up to the 111th Congress in 2009 to figure out what to do about it.

Today, Tom Bevan suggests we need to add Lisa Murkowski (R-AK) and Larry Craig (R-ID) to that list. I actually haven't heard for certain how Chafee, Collins, and Snowe are leaning; last I heard, Graham seemed to have serious reservations.

Bevan goes on to note:

John Sununu is neither a RINO or a reactionary, and he's co-author of the bill in the Senate seeking to postpone permanent reauthorization of the Patriot Act.

Perhaps not, Tom; but Sununu is also not at all forthcoming about what, precisely, he fears. Here is the closest he comes in his op-ed in the Manchester Union Leader yesterday:

As originally written, the Patriot Act created and/or expanded two specific types of subpoena power for federal authorities: the first, a “215 order,” allows the confiscation of any business or library records believed to be relevant to a terrorism investigation; the second, National Security Letters (NSLs) — issued without the approval of a judge — allow the government to compel businesses to provide access to a broad range of financial information, including transaction records and data. In both cases, a “gag order” is automatically imposed, preventing a business or individual from even discussing that the order has been issued. As dramatic as these powers may be, I do not oppose their creation or extension. It is essential, however, that Americans are given the fair opportunity to appeal these orders and their accompanying “gag order” before a judge in a court of law.

The PATRIOT Act fails to provide for meaningful judicial review of NSLs by placing an unreasonable burden on the individual to show that the government acted “in bad faith.” Even in the most egregious of cases, an innocent American would have difficulty meeting such a high threshold.

Sununu fails to even mention the purpose behind these provisions, even while he insists he has no problem with them per se:

• Law enforcement needs to see financial and other records to track the funding, planning, and organizing of terrorist groups -- often the only way that we can find them and haul them into court.
• The gag order is essential because terrorists are, above all else, highly mobile; if they learn they're under investigation, they simply disappear and reappear in another city with new identification in a different name. Secrecy is essential -- until we pounce; thereafter, those records obtained by 215s and NSLs must be produced in court (assuming this occurs in the U.S.) and their provenance explored.

It appears the sole dispute Sununu has with reauthorizing the Patriot Act is that the burden a recipient must prove to get out of providing information demanded by an NSL is "bad faith" on the part of the law enforcement agency. But what standard does Sununu want? Typically, the person receiving the NSL isn't the target of the probe, so you can't demand "reasonable cause" to suspect the recipient. And why should the recipient be able to insist upon seeing your case against the actual suspect when the only connection is that the suspect is an account holder of the recipient's bank? If the whole point is secrecy, then revealing the extent of your case against the suspect is even worse than allowing the suspect to find out that the FBI has examined his bank records.

Attempting to quashing the evidence should be restricted to the actual person who is eventually charged; and the time to do it is during the trial. The idea that an unrelated third party, not under suspicion himself but who possesses important evidence about the actual suspect, should be able to quash the investigation before it even has a chance to develop sufficient evidence to charge, is simply absurd. It argues that the cops need reasonable cause to seek reasonable cause.

None of this makes any sense at all, and Sununu's flagwaving about Benjamin Franklin and the sacred right of freedom of speech does absolutely nothing to illuminate his objections. Free speech has never meant the right to say anything anytime to anyone; otherwise, we couldn't have laws against fraud, slander, libel, or passing classified information to foreign agents.

Freedom of speech was always recognized as the right of members of the American community to express their views, ideas, thoughts, likes, and dislikes. No grand juror has a First Amendment right to spill the beans about the prosecutor's evidence, and Sen. Sununu doesn't seem to object to that limitation on speech. So why does he object to a similar bar to Bank of America telling Khalid Sheikh Mohammed that the FBI is looking into financial transactions of some company he runs? Just how high a hurdle does he want the Feds to have to overcome to obtain those records? Does the secrecy aspect matter to Sununu, or does he think all criminal investigations should be carried out in the full glare of the public spotlight?

And believe me, while B of A probably wouldn't want to tell a terrorist suspect he's being investigated, there are many, many Islamic and left-liberal businesses that would rush to do precisely that... purely on general, anti-Bush, anti-American principles, or else because they actually support the terrorist cause.

And what about the objections other senators have to the roving wiretaps? Is Sununu all right with those? He doesn't deign to tell us, leaving the impression that he could decide to seize upon that issue if the NSL issue goes bust, and the Senate votes to maintain that provision unchanged.

If he supports roving wiretaps, he has the responsibility to argue in favor of them with the other complaining senators: since they know he's with them on the NSL controversy, his support for roving wiretaps should carry a lot of weight.

But if he opposes those too, he has just as great a responsibility to explain to the American people what, exactly, is wrong with issuing wiretap orders on the basis of the target of the tap -- rather than the specific phone number he may happen to be using at this time. Considering how easy it is today to switch phones and continue a conversation, it's pretty urgent that the cops have that investigative power (at all levels, and even for ordinary criminal investigations). Again, I fail to see how it violates anyone's civil liberties to allow a roving wiretap -- but not to allow a regular wiretap.

So I understand Tom Bevan's point; and of course, he makes it clear that he is perfectly fine with reauthorizing the Patriot Act as is; but it is simply incorrect to treat Sen. Sununu's objection as if it were a coherent argument against the act as it now stands, or to treat this tantrum of his as anything other than a play for attention -- and likely an attempt to extract some concessions, possibly in some other area.

Hatched by Dafydd on this day, December 14, 2005, at the time of 3:19 PM

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My head is spinning. On Tuesday, in Patriot Paroxysms, I opined: All eyes turn now to the Senate, where the biggest problems lurk. Those problems are named John Sununu (R-NH), Lincoln Chafee (R-RI), Susan Collins (R-ME), Olympia Snowe (R-ME), Lindsay... [Read More]

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