Critics complain that a Section 215 order can apply to records pertaining to people not suspected of being foreign agents. (The same is true of an ordinary subpoena.) But this is as it should be. A key technique for catching terrorists is to trace their activities through those of associates who are not themselves engaged, or known to be engaged, in terrorist activities.
This is not to say that Section 215 is flawless. Most obviously, it fails to specify any way for a recipient of an unwarranted or overly broad order to ask a court to reject or narrow the order. Even Attorney General Alberto Gonzales has conceded that this is a defect that should be cured.
Gonzales, in this and other ways, including his April 13 meeting with ACLU Executive Director Anthony Romero, has responded to critics far more constructively than his predecessor, John Ashcroft, ever did.
Critics, including Peter Swire, a law professor at Ohio State University who is the Section 215 critic on PatriotDebates.com, also make a strong case that a gag-order provision in Section 215 is unduly sweeping. This provision automatically bars recipients from disclosing Section 215 orders to the media or to anyone else, ever. The purpose is to prevent terrorists from learning that the government is on their trail. But the absolute and perpetual nature of the gag orders eliminates a key check on possible abuse. Swire proposes several limitations. At least one seems worthy of adoption: The gag orders should expire after six months unless extended by the FISA court.
The other major target of civil libertarians is Section 213, which authorizes so-called "sneak-and-peek" warrants for what the government calls "delayed-notice" searches. Ordinarily, search warrants must be served on the subjects at the time of a search. Section 213, which is not among the provisions scheduled to sunset, recognizes several exceptions, allowing judges to delay notice of a search until after a search is already completed, when the government shows that delay may be necessary to avoid: 1) endangering life or physical safety, 2) flight from prosecution, 3) tampering with evidence, 4) intimidation of witnesses, or 5) "otherwise seriously jeopardizing an investigation or unduly delaying a trial." This last is the so-called catch-all provision.
Amid a deluge of misleading scare rhetoric about FBI agents rummaging through bedrooms and covering their tracks, most critics have ignored the fact that Section 213's main impact is to codify what courts have done for decades when necessary to avoid blowing the secrecy that is critical to some investigations.
Critics complain that Section 213 was enacted under a false flag, because sneak and-peek searches in terrorism investigations had already been authorized by FISA. The provision's main impact, they say, has been to make it easier for agents to obtain sneak-and-peek warrants in ordinary criminal investigations. This is true. It's also true that a strong case can be made for revising Section 213 to require notice of an ordinary criminal-investigation search within, say, seven days unless the court authorizes further delay. And it's arguable that the catchall provision makes it too easy to get a sneak-and peek warrant.