Andrew, you really don’t want to do this with me.

First of all, Section 215 has nothing to do with sneak and peek. Section 215 is the business records provision that has been libeled as the “library records” provision.

Secondly, the Patriot Act did not “greatly expand[] the right of the Feds to ’sneak and peek’”. The Feds now have exactly the same right to do a sneak-and-peek warrant they have had for decades.

All the Patriot Act did in connection with sneak-and-peek was standardize the hodgepodge of rules that existed in various different federal Circuits which prescribed the showing the Feds had to make to be permitted to delay notification. That is, Congress stepped in and restored order to an area that inconsistent judge-made law had rendered confusing. Such congressional action, particularly when its effect is to promote certainty and equal treatment in the law, is something conservatives generally support. In this case, it seemed so uncontroversial and sensible that even the sunset-happy Patriot Act congress did not provide for its new delayed-notification provision to sunset. It was the ACLU that propagandized the provision, and so successfully that smart people now say misinformed things, like that the Patriot Act “greatly expanded the right of the Feds to ’sneak and peek’.”

Your point about roving wiretaps couldn’t be less persuasive. This is not a grant of extraordinary powers that requires additional safeguards. It is a grant of the same power that criminal investigators have had for comparatively minor cases, with no sunsets or controversies, for 20 years. I asked yesterday if you could imagine a scenario in which you would think roving warrants that are a commonplace in drug cases will have outlived their usefulness in investigations of spies and terrorists. I guess you can’t – which makes sense. But if you can’t, there is no reason on earth to have a sunset.

If, as you say that all laws are subject to repeal (and that is certainly true of statutory law), then that is an argument not to have sunsets at all – especially when you are essentially talking about giving national security agents tools that have long been available, without sunset, to criminal investigators probing much less serious matters.

I am not using the ACLU as a bogeyman to bring the debate to a close. I’ll debate this as long as you’d like. I am using the ACLU, together with your posts, to demonstrate how successful the ACLU has been in misrepresenting what is in the Patriot Act.