Our readers’ comments on my post from last evening about the (temporary) defeat of reauthorization for three Patriot Act provisions are, as one expects, well informed. I want to respond in particular to Conor Friedersdorf’s. He says that, “as usual,” I fail “even [to] hint at the reason civil liberties advocates are troubled” by Patriot’s roving wiretaps.
I don’t know why Mr. Friedersdorf, who almost always makes thoughtful points, so often tees them up in a snide tone. I have a pretty extensive record of writing on the Patriot Act, and an awful lot of it involves addressing the long list of things by which “civil liberties advocates are troubled.” I don’t expect him to agree with my point of view, and people on the other side have plenty of grist to argue that I’ve understated the relevant privacy invasions. But to suggest that my practice is to duck or conceal the civil liberties implications is just wrong.
Concerns about “John Doe” warrants — i.e., roving wiretap authorizations that do not name a specific person or place to be surveilled — have been discussed since 2001. Two things stand out. First, although we’ve now had this provision for close to a decade, civil liberties advocates like Mr. Friedersdorf and Cato’s Julian Sanchez still have to couch their objections in the subjunctive mood: the warrants “raise the possibility” of overbreadth abuses “disturbingly similar to the ‘general warrants’” prohibited by the Fourth Amendment. That is, although the Patriot Act has been examined, debated, and reauthorized a number of times since its initial passage shortly after 9/11, critics still have no concrete record that roving taps have been systematically abused, so they have to raise potential abuses that never seem to materialize. Since all power, not matter how exactingly limited, can be abused, this doesn’t get us very far.
Second, note the irony in the civil liberties critique of the Patriot Act: The rule of law, critics say, requires that we interpose courts in national security matters as to which, until the last 30 years or so, they were understood to have neither the requisite political accountability nor institutional competence. Yet, when critics get their wish and courts are interposed, it turns out, we can’t trust them either — they’re just rubber stamps who might give the government carte blanche to tap everyone, everyplace, without a showing of cause.
As should have been obvious on its face, and as history elucidates, judges are not going to sign general warrants. The Justice Department and the FBI know that, and are consequently unlikely to propose such warrants (and it’s worth pointing out that national security wiretap applications go through a different and more rigorous in-house vetting than criminal wiretap applications). Quite apart from that, however, Mr. Friedersdorf omits mention of the probable cause requirement.
Even if national security agents do not know the precise name of the target of their surveillance application, or the precise location or communications instrument that the target will be using, Patriot bars the judge from issuing the warrant in the absence of probable cause that the target — who must be described even if agents don’t yet know his name — is an agent of a foreign power. (International terrorist organizations are “foreign powers” and their operatives are “agents” under federal law.) Similarly, the judge may not authorize eavesdropping unless the agents provide probable cause to believe that “each of the facilities or places at which the surveillance is directed is being used or about to be used” by this foreign agent.
These restrictions, coupled with the reluctance of federal judges to authorize searches that run afoul of the Fourth Amendment’s ban on general warrants, explain why roving wiretaps have worked well for the last ten years and why the sky has not fallen, as civil liberties advocates predicted it would. Mr. Friedersdorf is correct in claiming that John Doe warrants could “pose a high risk of ‘overcollecting’ innocent Americans’ communications.” What he doesn’t even hint at (although I won’t say “as usual”) is the national security concern that delay in seeking authorization until the precise foreign agent can be identified and the precise location and phone are ascertained could result in the loss of vital intelligence — the information needed to stave off an attack. That is why Mr. Friedersdorf’s analogy to law enforcement protocols does not work in this situation. It’s not like missing a few calls might result in a kilo of heroin getting onto the street or a mafia hit. In the national security context, missing a few calls might prevent us from stopping a catastrophic attack in which hundreds or thousands of people are killed.
It’s not that I or others on the national security side of the Patriot debate don’t appreciate the civil liberties risk. We simply think it must be balanced by the risk to innocent life. We also think the resulting compromise between these concerns in the roving taps provision — namely, the Patriot Act’s probable cause prescriptions, judicial scrutiny, and searching congressional oversight (pivoting off the worthy concerns raised by critics like Mr. Friedersdorf and Cato) — adequately addresses the civil liberties risk.