December 22, 2005,
When we suggested in a recent editorial that John Sununu, the Republican senator from New Hampshire, ought at least to “know what he’s talking about” before he takes action that will have the consequence of endangering our national security, we were referring to his apparent failure to inform himself about the Patriot Act. We didn’t realize that Senator Sununu also needs educating on the previously expressed views of . . . Senator Sununu.
Sununu’s stated concerns which would be frivolous even if they were accurate focus on two investigative tools: Section 215 orders (the erroneously dubbed “library records” provision) and National Security Letters (NSLs). Our editorial observed: “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.’”
The senator has cried foul in a letter, claiming we have misrepresented him. “I have never stated,” he writes, “that 215 orders ‘can’t be appealed.’” And, he adds, “I have never stated that NSLs ‘can’t be appealed.’” Rather, his sole complaint was with the gag orders.
Really? While Sununu intimates that our description twists some “floor remarks” he made, we explicitly stated that we were relying on an op-ed in the New Hampshire Union Leader on December 13, in which he wrote the following sentences for his constituents’ consumption: “As dramatic as these [215 and NSL] powers may be, I do not oppose their creation or extension. It is essential, however, that Americans are given the fair opportunity to appeal these orders and their accompanying ‘gag order’ before a judge. The Patriot Act fails to provide for meaningful judicial review of NSLs” (emphasis added). So Sununu never stated that 215 orders and NSLs couldn’t be appealed except for the time eight days ago when he stated, carelessly and inaccurately, that there was no meaningful judicial review allowing a fair opportunity to appeal them.
In any event, it’s not worth getting dizzy sorting out the old Sununu of the op-ed from the new Sununu of the letter. They are both wrong. And even if their complaints were colorable, the triviality of those complaints, when compared with the vital investigative improvements at issue, underscores the senator’s recklessness in joining the Democrats who seek, as Harry Reid put it, to “kill the Patriot Act.”
The investigations Patriot principally addresses relate to our national security. Allowing details about them to be revealed publicly could put American lives in jeopardy and the “gag orders” Sununu decries are hence both necessary and justifiable. Moreover, the vast majority of 215/NSL recipients are third-party record holders who have no interest in disclosing details about government investigations. Indeed, they routinely comply with grand-jury subpoenas in criminal investigations without feeling the need to broadcast their compliance to the world. Similarly, the vast majority of innocent Americans want the government to conduct efficient investigations which obviously require secrecy to promote our collective safety.
Sununu’s other arguments are also specious. He complains, for example, that the standards for using 215/NSLs are too broad because they require only relevance “to an investigation” rather than, as he would prefer, relevance “to a suspected terrorist or spy.” But investigators probing comparative trifles like gambling and health-care fraud are not even required to show relevance to their investigations in order to issue broad subpoenas. It makes no sense to handcuff national-security agents trying to prevent terrorist slaughter by holding them to a different and much more restrictive standard.
And it is simply ridiculous to fret over the “chilling effect” of compelling a 215/NSL recipient to notify the FBI of the identity of any attorney the recipient chooses to consult. The attorney-client privilege has never protected from disclosure the mere fact of one’s having an attorney; it protects only the substance of communications between lawyer and client. Nothing in the Patriot legislation allows the government to invade that privilege. In addition, it is commonplace for people including innocent people to consult with a lawyer when contacted by the FBI. This consultation doesn’t indicate that a person or business has done something wrong, and the FBI, of course, generally learns who the lawyer is anyway, because it is usually the lawyer who handles dealings with the government. Since consultation is known to be routine, having to disclose it wouldn’t “chill” anyone but the paranoid. That is not a good reason to compromise the investigative secrecy necessary to protect the other 300 million of us.
Sunnunu puts at risk a host of tools
vital to defeating terrorists.”
As our editorial pointed out, the Patriot Act reauthorization bill proposes several steps providing for judicial scrutiny, increased congressional oversight, and inspector-general monitoring that safeguard civil liberties while preserving crucial investigative secrecy. This should more than satisfy Sununu’s overwrought concerns.
Lamentably, however, it hasn’t. In pressing his opposition, he puts at risk the government’s ability to share intelligence information, to monitor terrorists with roving wiretaps, to choke off terrorist financing, and to use a host of other tools vital to defeating terrorists. As we write, the future of the Patriot Act is still pending likely to come up for a congressional vote again before long. Here’s hoping Senator Sununu uses that time to reconsider his position and to distance himself from nitpicking Democrats who would weaken some of the most basic measures available to protect Americans from attack.