Misleading the Misled on Anti-Terror “Tools”

Every now and again, it seems, the National Review trots out a new reason to comfort their base on the USA PATRIOT Act, typically by downplaying every little thing about it, and its new surveillance regime. Presumably this is part of the delicate dance of holding together a conservative coalition premised on using the rhetoric of “freedom” to apologize for massive state intrusion into Americans’ personal lives. We’ve covered at least one attempt before; here’s the new one. We needn’t go far to find the central error.

The three anti-terror tools up for reauthorization follow that model and even provide for greater protections than the Constitution requires. Two are standard tools of the trade in criminal investigations — “roving” wiretaps and “business records” orders — and the third corrects a small loophole in existing terror surveillance authority.

“Roving” wiretaps are nothing remarkable or unprecedented. Since 1986, courts have issued “Title III” warrants in criminal investigations, allowing this type of surveillance to collect evidence on players in organized crime and other targets of criminal investigations who have learned that a regular wiretap can be evaded by use of modern technology –switching between prepaid cell-phones and various Internet channels for communications. These warrants have been repeatedly upheld by the courts as lawful.

The major difference in the anti-terror context is that the application, which is submitted to the FISA Court made up of federal judges, need not specify by name the target, but can, instead, use other details to identify the particular person subject to surveillance — for example, an Internet handle used on particular web forums.

I’ve bolded the hilarious part. The “major difference” post-PATRIOT Act is that the application “is submitted to the FISA Court” at all. Maybe roving wiretaps were common under Title III — you wouldn’t know it, based on The Wire — but they required a much stronger showing, and had to be pitched to a much more skeptical judicial forum. Channeling roving wiretaps through the FISC was a huge change.

The article goes on to explain that the recipients of business records demands can’t discuss them — which is true — and that such secrecy is desirable. First, note that the non-disclosure rule, under the old Republican-drafted statute, was much harsher. Formerly, recipients of such “national security letters” couldn’t even discuss them with counsel. This clearly unconstitutional restriction was rolled back by a Democratic Congress, which also added the judicial bypass provision. Second, NSLs are a little different than a subpoena, because, again, subpoenas are issued following a grand jury indictment, which provides a stronger procedural safeguard than anything in the PATRIOT Act. And, recall that NSLs aren’t served on targets of investigation. They’re served on innocent bystanders, like a library of telephone company, who happen to have the bad fortune of carrying an investigation target as a customer.

The PATRIOT Act is one of those things that true “tea party patriots” should actually be screaming about, instead of securities regulation. But so long as they permit news organs like The National Review to direct their wrath, it won’t happen.

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