Sununu's Folly (Patriot Act)

National Review ^ | 12-16-05 | The Editors

[smoothsailing]

December 16, 2005, 5:19 p.m.

Sununu's Folly

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.    

http://www.nationalreview.com/editorial/editors200512161719.asp   

[Lejes Rimul]

Anything Reno is for ought to be suspect.

[sheltonmac]

And I'll bet you can't point to a single case where the Patriot Act was abused prior to today.

I'm sure there are a few people who could tell you about it. Does the name Brandon Mayfield ring a bell?

FBI apologizes to lawyer held in Madrid bombings

From the article:

According to court documents, FBI agents began their surveillance of Mayfield two weeks after the attacks in the Spanish capital. Under a provision of the U.S. Patriot Act, they entered his home without his knowledge — but aroused the family’s suspicion by bolting the wrong lock on their way out and leaving a footprint on the rug that didn’t match any family members.

What about Michael Galardi? Or Sami al-Hussayen?

[harpu]

The two (2) democrat Senators who voted FOR cloture...

Johnson (D-SD)... Nelson (D-NE)...

[don asmussen]

" -- The FBI may now demand information on citizens with "national security letters," which were created in the 1970s to investigate suspected foreign spies. FBI agents threatened to issue such letters in Las Vegas in December 2003 when casino executives balked at handing over gaming and personal information on tourists celebrating New Year's Eve.
Business leaders say companies receive tens of thousands of these letters each year, and complying is too costly. In a recent report by The Wall Street Journal, one banker said that 15 percent of her institution's annual operating costs are spent on Patriot Act compliance.. --"


Correct me if I'm wrong, but isn't it 'against the law' for businesses to notify customers of requests for these "security letters"?

[rmlew]

Napolitano is just plain wrong. He seems to think that FISA courts are not courts, even though Federal Judges are on them and sign the warrants.
The same is true for warrants in the Patriot Act.

[Jacquerie]

I respect Napolitano. I assume his book is a scholarly dissertation. In the link he outlines the historic assaults on our persons, papers and effects. I do not dispute that.

Would you protest that greatest infringement of all during war? I mean the military draft. Young men are pulled from home and family to fight and possibly die for the cause set forth by our republic. If one cannot protest the draft, probably the most egregious assault on liberty, I do not think one can reasonably protest the Patriot Act.

[rmlew]

Brandon Mayfields fingerprint was throught to be the one found at the Madrid bombing. He belonged to and represented a radical Mosque. His wife attended a charity, which funded terrorists. He damn well should have been investigated!

Sami Al-Husseyan was guilty as sin. The Judge simply refuesd to allow all the evidence.

WE have a piss poor record of convicting terrorists, starting with El Sayed Nossair.

We must all watch the watchers, but we should als be vigilant against terrorist who get away with it because of our legal system.

[RVN Airplane Driver]

Most Americans don't appreciate the advantages of a police state. When they decide to do something about illegal immigration, then maybe we will consider this sneaking and snooping without a declaration of war. Don't bother with the nuke threat, we have been living in threat of total thermonuclear annihilation since the fifties.

Trying to reason with the likes of you....is impossible...sort of like trying to mastrabate with boxing gloves on...eventually you get the desired results...but is it worth the effort? Welcome to the 21st century

[smoothsailing]

Am I correct in thinking that Frist voted against cloture as a parliamentary necessity? IOW, he did so in order to be able to bring it up again.

[Cboldt]

Correct me if I'm wrong, but isn't it 'against the law' for businesses to notify customers of requests for these "security letters"?

That isn't clear. Section 505 seems to impose a perpetual and universal gag order on the letter recipient, but Senators Specter, Hatch and others say thatteh recipient is not so gagged, and can obtain legal counsel and can challenge the order.

There is no question an order can be challenged. Lost in the discussion is the matter of timing. Can the order be challenged before it is complied with? Or does the challenge have to wait for a prosecution and objection by the person charged? Or are there in-bteween way-points in the process where the order can be challenged?

The "yes it can - no it can't" argument, without more, probably has both sides being right, and being wrong ;-)

And there is also the question of what constitutes "disclosure." The banker asserting that compliance has "xx cost" isn't disclosing much detail; the Vegas establishments aren't either, except that EVERYBODY in Vegas was a target of investigation at that time (maybe it'd be a reasonable activity in the interest of security, to have ALL hotel and rental car and air travel and bus travel purchases require goverment ID, and be reported to the Feds); but my take is thatthe intent of the gag order is to make it criminal to even dislose the fact that ANY letter has been recived, i.e., we are to pretend that no such investigation is taking place.

[Dog Gone]

Okay, you've got me there. They made a mistake using the act.

Maybe we should repeal all criminal statutes or legistlation that affects criminal investigations if a mistake has ever been made pursuant to their provisions.

[the gillman@blacklagoon.com]

ben Franklin spits on you.

[the gillman@blacklagoon.com]

...And I'll bet you can't point to a single case where the Patriot Act was abused prior to today....

And once permanent, what will it matter if abuses become everyday business?

You won't be able to do a thing about it.

See ya in the camps, chump.

[smoothsailing]

Are you addressing me or NRO?

[the gillman@blacklagoon.com]

...Only an idiot would question the President..

Yeah, he really closed down and secured those borders, didn't he?

First move in time of war.

[the gillman@blacklagoon.com]

...Remember WACO,Vicky and Sammie Weaver?...

Yup. Some murdered by the Clintons, some murdered by the Bushes.

[Petronski]

It took just four years to destroy the corrections made as a result of 9/11.

America's going to get hit again. It's going to happen right where we can no longer look.



And the enemy laughs.

[the gillman@blacklagoon.com]

The Maronite Christians of Lebanon know more about muslim atrocities than you will ever know unless some crimalien brings a nuke across our unguarded borders and blow you up.

They were the first victims of this Jihad.

[Petronski]

Lew Rockwell is a tool.

[the gillman@blacklagoon.com]

NRO.

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