House of Eratosthenes

At a Sept. 23 committee hearing, Sen. Al Franken, the newest member of the committee, challenged the constitutionality of such wiretaps, and in the process left an Obama Justice Department official — who supports the law — muttering in frustration.

That official, Assistant Attorney General David Kris, tried to explain to Franken that the law allows, and the courts have held, that investigators can wiretap a suspect based on a specific description of that suspect’s activities, even if investigators don’t know his name.

Franken, who pointed out that he is not a lawyer, was unimpressed. “That’s what brings me to this,” he said, pulling a copy of the Constitution from his coat pocket. He read aloud the Fourth Amendment: “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”

Is the Patriot Act’s roving wiretap provision consistent with the Constitution? Franken asked.

“I do think it is,” Kris answered, “and I kind of want to defer to that other, third branch of government. The courts, in looking at — ”

“I know what they are,” Franken joked, as the audience laughed.

Kris seemed taken aback. “This is surreal,” he said under his breath.

Yes it is.

Former Attorney General Michael Mukasey put together an excellent summation of what exactly is on the chopping block:

Up for renewal this year is a provision that permits investigators to maintain surveillance of sophisticated terrorists who change cell phones frequently to evade detection. This kind of surveillance is known as “roving wiretaps.” Also up for renewal are authorizations to seek court orders to examine business records in national security investigations, and to conduct national security investigations even when investigators cannot prove a particular target is connected to a particular terrorist organization or foreign power—known as “lone wolf” authority.

Roving wiretaps have been used for decades by law enforcement in routine narcotics cases. They reportedly were used to help thwart a plot earlier this year to blow up synagogues in Riverdale, N.Y. Business records, including bank and telephone records, can provide important leads early in a national security investigation, and they have been used to obtain evidence in numerous cases.

The value of lone wolf authority is best demonstrated by its absence in the summer of 2001. That’s when FBI agents might have obtained a warrant to search the computer of Zacharias Moussaoui, often referred to as the “20th hijacker,” before the 9/11 attacks — although there was no proof at the time of his arrest on an immigration violation that he was acting for a terrorist organization. But a later search of his computer revealed just that.

Rather than simply renew these vital provisions, which expire at the end of this year, some congressional Democrats want to impose requirements that would diminish their effectiveness, or add burdens to existing authorizations that would retard rather than advance our ability to gather intelligence.

One bill would require the government to prove that the business records it seeks by court order pertain to an agent of a foreign power before investigators have seen those records. The current standard requires only that the records in question do not involve a person in the United States, or that they do relate to an investigation undertaken to protect the country against international terrorism or spying.

The section of the Patriot Act that confers the authority on investigators to seek these records was amended in 2006 to add civil liberties protections when sensitive personal information about a person in the U.S. is gathered. It passed the Senate overwhelmingly with support that included then-Sens. Barack Obama and Joe Biden.

The same proposed legislation would make it harder to obtain a real-time record of incoming and outgoing calls—known as a pen register—in national security cases. It does so by requiring that the government prove that the information sought in this record relates to a foreign power. Currently, the government can obtain a court order by certifying that the information sought either is foreign-intelligence information or relates to an investigation to protect against foreign terrorism or spying.

While the changes may sound benign, they turn the concept of an investigation on its head, requiring the government to submit proof at the outset of an investigation while facts are still being sought. In any event, a pen register shows only who called whom and nothing about the content of the call, and thus raises none of the privacy concerns that are at stake when a full-fledged wiretap is at issue. Moreover, the underlying information in a pen register is not private because telephone companies routinely have it.

I note that people in Franken’s camp are not nearly so cavalier about dismissing court decisions they find more beneficial to their causes. That’s true especially when the “Government versus People” balance of power spins around 180 degrees relative to that cause. For example, there is the Second Amendment; prior to the DC versus Heller decision, the “standard,” such as it was, was a filmy, muddled thing to be found in the 1939 US v. Miller decision, which liberals recited with glee. Among other things, it held (erroneously) that The People did not enjoy a right to bear shotguns since shotguns were not used for military purposes. And let us not forget Roe v. Wade. Would Al Franken so casually dismiss such casework for some chuckles from the spectator gallery?

This is the real weakness of the liberal argument, and I would hope the Republicans have the sensibility to hammer away at it day and night: This notion that government is to be trusted completely some of the time, and not to be trusted at all at other times. It’s like a special strain of extremism that doesn’t even have its guts filled in. It just says to let the chips fall where they may. It’s just a big bunch of “alwayses” and “nevers” looking for something to which to affix themselves.

Meanwhile, one of the very few laws that authorize the federal government to do what it is supposed to do with — get ready liberals, I’m about to get judgmental and non-values-neutral here — this terrorist scum, is set to be jettisoned. And it happens so soon after the health care defeat.

It’s as if the message is “Well fine, you won’t help us to get the government to do what it isn’t supposed to be doing, we’re going to stop it from doing what it should be doing.”

Man, things are getting awfully damn weird in DC. We got Al Franken making decisions about our national security. What’s next, Eddie Murphy as ambassador to Iran? How about Chevy Chase heading the Dept. of Homeland Security.

You make a great point which I’ve always been curious about. Liberals are all for more government, they trust government to do all for them, unless they feel government is involved with something they don’t approve of, like keeping us safe. The mind boggles.
- tim | 10/02/2009 @ 09:52
It’s as if the message is “Well fine, you won’t help us to get the government to do what it isn’t supposed to be doing, we’re going to stop it from doing what it should be doing.”

Then it’s a good thing we have adults in government now.
- KG | 10/02/2009 @ 10:10
This is the real weakness of the liberal argument, and I would hope the Republicans have the sensibility to hammer away at it day and night: This notion that government is to be trusted completely some of the time, and not to be trusted at all at other times.

There is only one thing worse than believing your government always tells the truth. And that is believing that it always lies.
- cylarz | 10/03/2009 @ 22:08

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democrats Chip Away at Patriot ActFriday, October 2nd, 2009

democrats Chip Away at Patriot Act
Friday, October 2nd, 2009