Perhaps I should be grateful that the phrase “usually admirable senator” preceded the words “wrongheaded and empty” in your recent National Review Online editorial (“Sununu’s Folly“). Life is full of small favors which are too often overlooked. I was somewhat disappointed, however, that the piece seemed determined to misrepresent my specific arguments against the Conference Report for the USA PATRIOT Improvement and Reauthorization Act of 2005.
Consider the following:
1. The reference in my floor remarks to the need for evidence to obtain search warrants, the right to face one’s accuser, and appeals before a court of law were offered as examples demonstrating the Framers’ broad desire to protect civil liberties from the police powers granted to government. That desire should guide us in this debate as well.
2. The standard for obtaining a National Security Letter (NSL) or a Section 215 order is a showing of relevance to an investigation. This is an extraordinarily broad standard. The Senate bill, which passed unanimously, would require that records sought have some connection to a suspected terrorist or spy.
3. I have never stated that 215 orders “can’t be appealed.” I have stated–correctly–that there is no explicit judicial review of the permanent, automatic gag order accompanying the 215 subpoena. A gag order is an abridgement of free speech. It may well be justified, but we should allow it to be challenged in court if the recipient so desires.
4. I have never stated that NSLs “can’t be appealed.” I have stated–correctly–that there exists an extraordinarily high standard for appealing an NSL gag order. The requirement that the recipient demonstrate “bad faith” on the part of the government renders the judicial review meaningless.
5. On top of these flaws, the proposed Conference Report contains a requirement that the target of the 215 or NSL immediately notify the FBI if they choose to speak with an attorney, and provide the government with the name of that attorney. Such a provision would clearly have a chilling effect on access to counsel. There is no such requirement in any other area of law.
I do not believe that it is unreasonable to require a standard for obtaining 215 orders or NSLs that discourages unwarranted access to business, medical, and financial information. I do not believe that a meaningful judicial review of gag orders threatens the ability of law enforcement to pursue terrorism investigations. Finally, I think it is unwise to single out the recipients of these orders who choose to consult an attorney. These are issues that could have been effectively addressed months ago. Unfortunately, the administration chose to believe that anything with the word “Patriot” on it would fly through Congress. They were wrong.
I will happily support a three-month extension of existing PATRIOT Act provisions while these differences are worked out and have introduced legislation to do so. Again, unfortunately, the only person who appears to believe that the country would be better off with no PATRIOT Act than with a short-term extension is the president, who has threatened to veto such a bill.
Senator John Sununu