Now over to The New York Times, where the regularly impressive Room for Debate feature asked, "Do we still need the Patriot Act?" Answering in the affirmative, Nathan Sales, a law professor at George Mason University, wrote, "America needs the Patriot Act because it helps prevent terrorism while posing little risk to civil liberties. The law simply lets counterterrorism agents use tools that police officers have used for decades. And it contains elaborate safeguards against abuse." Does he still believe that in light of Snowden's revelations?
"The short answer is yes," he graciously and promptly replied when I emailed him to ask, "with a footnote":
Section 215 of the PATRIOT Act authorizes the national security equivalent of grand jury subpoenas. The NSA's telephony metadata program uses section 215 in a novel way to collect much more data than police get with a typical subpoena. As I've said publicly on a number of occasions, bulk data collection programs can be valuable counterterrorism tools, but it's not clear to me that section 215 is the appropriate statutory vehicle. Congress should consider enacting new legislation to place the metadata program on a more stable statutory footing.
That is quite a footnote! It doesn't just acknowledge that the law does more than let counterterrorism agents mimic what police officers have long done -- it also (ever so gently) implies Section 215 is being abused. Sales, who couldn't have been expected to know the truth back in 2011, would've almost certainly made changes to his argument back then, given more accurate information. Would an item that included the "footnote" he just offered, along with significant tweaks to rhetoric in other debating forms throughout the nation, have changed the debate, at least enough to affect legislative amendments if not the law's renewal?
Circa 2011, House Republicans were no doubt aware of what was being written about the Patriot Act renewal in National Review. These days, a faction of them are rebelling against Section 215.
Here's what they were reading back then, many of them aware that the author, Andy McCarthy, is a former U.S. attorney (emphasis added):
It is a myth perpetuated by the Bush-deranged media that the Patriot Act was a dramatic expansion of federal power and that it unduly infringed on American civil liberties. For the most part, Patriot simply endowed the national security side of the FBI's house with the same powers that had long been exercised by the law-enforcement side. Moreover, Patriot provisions often provided more protection and court oversight than existing law-enforcement procedures.
One of the three provisions in the re-authorization is a good example: the business records provision (which opponents demagogued as the "library records" provision even though library records are not mentioned in it -- though they are covered in its sweep). In a terrorism investigation, Patriot's business records law allows national security agents to go to a court for authorization to compel the production of all sorts of records that might be relevant to a terrorism investigation. By contrast, when I was a prosecutor investigating terrorism as a law-enforcement issue, and I wanted to subpoena exactly the same kinds of information, including library records, I simply reached into my desk drawer for a subpoena, wrote up my demand, and handed it to an FBI agent to serve on the business (or library) in question. Contrary to Patriot Act procedures, I did not have to apply to a court for permission, and I did not have to certify that the information I was seeking was relevant to some legitimate investigation... and if the documents demanded were not produced, I could have the custodian of the records jailed for contempt.
Here is what I don't understand about the GOP defectors' position. It's not as if refusing to reauthorize the collection of business records, roving wiretaps, and the surveillance of lone wolf terrorists is going to result in any reduction of federal power. It would simply result in a shift from national security law to criminal law as the source of authority to use exactly the same investigative techniques.
McCarthy still favors the Patriot Act and Section 215. But the tone and substance of his analysis is much changed. Of course, Obama Administration officials who knew better dared to make similar comparisons between the power of normal prosecutors and the power of the NSA to collect data. Take Assistant Attorney General Ronald Weich, responding to a letter from Senators Wyden and Udall. The letter includes a jaw-dropping protestation of good faith:
... The Executive Branch has done everything it can to ensure that the people's elected representatives are fully informed of the intelligence collection operations at issue and how they function.
That's just a damned lie. More to the point, he wrote:
Particularly in light of the statutory requirement that a section 215 order may only obtain records that could be obtained via a grand jury subpoena (or court order), we continue to believe that the analogy between section 215 and a grand jury subpoena is apt.
A DOJ spokesman also claimed that "Section 215 is not a secret law, nor has it been implemented under secret legal opinions by the Justice Department" -- a misleading claim, since it is implemented under secret legal opinions, they're just issued by the FISA court, not DOJ.