If New Hampshire Republican Senator John Sununu wants to endanger our national security, shouldn’t he at least know what he’s talking about? Apparently that’s too much to ask of the usually admirable senator, who is helping filibuster the reauthorization of the Patriot Act. Even former Clinton Attorney General Janet Reno has endorsed the Patriot Act; it is the single most important piece of counterterrorism legislation passed post-9/11. If the status quo holds after Friday’s failure to invoke cloture–Republicans got only 52 votes when they need 60—the 16 provisions of the law that were sun-setted and that are the most important will lapse at the end of the year.
Sununu’s criticism of the reauthorization, set out in a Union Leader op-ed earlier this week, are wrongheaded and empty.
Sununu says the Patriot Act is at odds with our country’s convictions that “evidence must be shown to obtain a search warrant; we have a right to face an accuser; and when wrongly prosecuted, we can appeal our case to court.” Not true. The Patriot Act does nothing to change those assumptions of our legal system. The government cannot get a search warrant without showing a judge probable cause either that a crime has been committed or that the subject of the warrant is an agent of a foreign power (such as a terrorist organization). When people are accused or wrongfully convicted, they fully maintain their rights to confrontation and appeal; but those rights come into play only after a person has been formally accused. They have always been irrelevant while the government is conducting an investigation, even of an ordinary crime. Why should things be any different in the case of a threat to national security, which is what the Patriot Act covers?
Sununu then hones in on the favorite targets of Patriot opponents: Section 215, the so-called “library records” provision, which actually doesn’t mention libraries and allows the government access to a wide variety of business records and other evidence; and national-security letters (NSLs), which allow the FBI to compel information–”without the approval of a judge,” Sununu darkly observes. He neglects to note that federal prosecutors have for decades been fully empowered, in investigations of run-of-the-mill crimes like gambling and minor frauds, to issue grand-jury subpoenas, which can compel all the same evidence with absolutely no court supervision. There was no widespread abuse of these tactics prior to Patriot, just as there is no record of their being abused in the four years since Patriot sensibly extended them to national-security investigations.
Sununu claims that his problem with Section 215 and NSLs is that they can’t be appealed and that recipients of government requests for information are subjected to “gag orders.” That claim is misleading. The Justice Department has long taken the position that Section 215 orders can be appealed. The proposed Patriot Act reauthorization not only formally creates a judicial-review process allowing a judge to modify or set aside flawed Section 215 orders or NSLs, but adds other protections as well: It loosens the nondisclosure requirements to facilitate court challenges; calls for “minimization procedures” that will limit the government’s ability to retain and disseminate the intelligence collected; and provides for monitoring by an inspector general to make certain the authorities are being used properly.
On the basis of these misunderstandings, Sununu stands with Democrats blocking an up-or-down vote on the reauthorization. If Sununu and his Republican colleagues Larry Craig, Lisa Murkowski, and Chuck Hagel weren’t giving Democrats cover, the Democrats probably wouldn’t be able to maintain their near-unanimity on this politically perilous vote. What a shame.