A deal has been struck between the Bush administration and some of the senators whose civil liberties concerns had mired the Patriot Act in a logjam. (The Act has been temporarily extended twice since 16 of its most crucial provisions were first scheduled to sunset on Dec. 31, 2005.)
The compromise is targeted at two mechanisms for compelling information: an order from the FISA court compelling business records (Patriot Act Section 215, often called the "library records" provision even though that is a misnomer), and the so-called "National Security Letter" (NSL) by which the FBI can compel production of certain information without a court order and without consulting with a Justice Department attorney.
Under the compromise, recipients of a Sec215 order or an NSL will now be able to consult an attorney without notifying the government that they have done so (or otherwise identifying the attorney). The government, of course, had been concerned about attorneys obstructing terrorism investigations by revealing the fact that information has been sought (something the recipient is not allowed to do -- on which more in a moment). The deal does not leave the government without a remedy -- it may still get the name of the lawyer by grand jury subpoena if there actually is a leak that obstructs justice.
The deal also permits recipients of 215 orders and NSLs to challenge the non-disclosure requirement after a year. Of course, most people will file no such challenge (since most people would be willing to help the government investigate potential terrorism even if the law didn't require it). But even where nondisclosure is challenged, it is expected courts will uphold it if the government can show exposure would hurt an investigation, hurt foreign relations, or endanger the safety of any person.
Finally, the compromise permits the FBI to use NSLs to compel information from libraries only if those libraries provide electronic services (e.g., Internet and email access). The government can still seek information if libraries do not provide such services, but then it must proceed by a 215 order from the FISA Court, not by NSL.
These accommodations are extremely reasonable -- they don't harm security in any material way, but they promote renewal of the Patriot Act which is crucial to national security. It's a good deal, and hopefully it will break the logjam.
What if the lawyer is part of the problem. It only takes one word to someone, totally meaningless to anyone but the receiver, for someone to be notified that the game is up.
Posted by: davod | February 12, 2006 at 05:55 AM