The Real Reason the PATRIOT Act Is Unnecessary


Here are the three "modifications" that convinced four Republican senators who had opposed reauthorization of the PATRIOT Act in its current form to cave:

1. National security letters, administrative subpoenas that do not require judicial approval, could no longer be served on libraries, even those that offer Internet access, unless they are themselves ISPs. (NSLs are ostensibly limited to credit, financial, and communications records.)

2. People receiving NSLs would not have to tell the FBI the names of their lawyers (a requirement included in the reauthorization legislation Congress almost passed last year).

3. Recipients of Section 215 subpoenas–which are approved by the secret Foreign Intelligence Surveillance Court based on a minimal showing of "relevance," cover a broader range of records than NSLs ("any tangible thing"), and are accompanied by gag orders–could seek permission to talk about the subpoenas after waiting a year.

Pretty lame. (The Washington Post, by the way, has a much clearer account of the deal than either The Washington Times or The New York Times, both of which left me scratching my head.) But as Sen. Russell Feingold (D-Wis.) suggested when the National Secret Agency's warrantless wiretap program was first revealed, the squabbling over the PATRIOT Act seems less important now that we know President Bush reserves the right to do pretty much anything he considers appropriate to fight terrorism, regardless of what the law says. If he thinks he has the authority to secretly disregard the Foreign Intelligence Surveillance Act's restrictions on wiretaps, why should we believe that his administration is punctiliously following the legal requirements for seizing records or conducting physical searches?

In a CBS News interview last month, Bob Schieffer asked Bush, "Do you believe there's anything a president cannot do if he…considers it necessary in an emergency like this?" Bush said "there are clear red lines" and offered two examples:

1. "I don't think a president could…order torture." (If so, it's not clear why he used a bill signing statement to signal that he won't necessarily obey the congressional ban on torture.)

2. "I don't think a president can order the assassination of a leader of another country with which we're not at war."

A good follow-up question would have been, "Is that it?" Because if that's an exhaustive list, why even bother with the PATRIOT Act?