Let’s imagine that intelligence agents have discovered that suspected Al Qaida agent Mohammed Atta is in the United States and that he has hired another individual to work for him. Under the Patriot Act legislation being considered now, it will be easier for the federal government to subpoena records in order to make sure that Atta is paying that individual the minimum wage than it will be to obtain records to find out if Atta is using him to engage in international terrorism. And Senator John Sununu thinks that it should be harder for investigators into those terrorist plots to get those records.
I’m an admirer of Senator Sununu, in general. But his arguments against the Patriot Act don’t add up.
Sununu is basing his support for a filibuster on two things.
First, he says that investigators shouldn’t be able to get business records merely by convincing a judge that the records are “relevant” to an ongoing terrorism investigation. Yet that relevance standard, from Section 215 of the law, is the exact same standard employed for discovery orders in civil litigation, for grand-jury subpoenas in a criminal investigation, and for each of the 335 different administrative subpoenas currently authorized by the U.S. Code. Getting a 215 order is harder than getting a grand-jury subpoena or almost any kind of administrative subpoena, since judges don’t have to review the latter–leading to the absurdity mentioned above, which Sununu wants to make more absurd still.
Second: The 215 orders, and national security letters, come with nondisclosure requirements. The people who have to turn over the information can’t say that they have done so. Sununu complains that there is “no judicial review” and “no ability to appeal” the nondisclosure requirement in 215 orders, and that the standard for review of the nondisclosure requirements in national-security letters is too lax.
Sununu is wrong about 215 orders: A judge reviews investigators’ request before they’re issued. As for national-security letters: If your concern is that their nondisclosure requirements need more judicial review, you should be for this bill. It creates such review for the first time. He may want that review to be more stringent, but it seems perverse to block senators from voting on the bill for that reason. Sununu complains that the bill leaves it to the FBI to determine when disclosure would harm national security. There is potential for error and abuse here. But the alternative–letting individual district judges make that determination–seems highly unwise. They’re just not well situated to do it.