March 28, 2005 | Patriot Debates

A Response to Professor Cole

First, he gives short shrift to the national security threat. If we were not actually facing a public safety challenge, individual interests in the privacy of financial, medical and reading records could sensibly be elevated. But national security is the highest public interest, and when it is truly threatened, as it is now, it makes no sense to give individual interests primacy over the public's need to have foreign enemies thoroughly checked – particularly when the Supreme Court has made plain that there are no expectations of privacy in third-party records.

This failing infects even the worthy concern over Section 215's “gag rule.” The desirability of openness as a check on government over-reaching is unassailable if national security is not threatened. A public safety threat, however, requires reasonable balance between the public interest in disclosure and the reality that disclosure makes our enemies, to be blunt, more efficient at killing us. The appropriate balance is to presume that Justice Department personnel will perform their functions honorably, but to expect searching congressional oversight.

In reality, the vast majority of third-party subpoena recipients have no interest in disclosure. Given the stakes involved, any modification of the gag rule should put the onus on the few who do to explain why they should not remain mum. As for the suggestion that prosecution is an adequate check on irresponsible disclosures, that is classic pre-9/11 mindset. If a terror organization lives to kill another day because a subpoena recipient compromised an investigation, it will be cold comfort that the recipient can be prosecuted for obstruction of justice.

The second error is an inaccurate portrait of how government actually works. It begins the regulator's common failure to perceive that when government's hands are tied out of a hyper-fear of corrupt behavior, the only hands being tied belong to the honest people – the occasional rogue will be a rogue no matter what the rules are. Again, when public safety is at issue, it is perilous to hamper responsible officials in pursuit of an illusion that the few bad people will conform.

Further, there isn't time, in the information age, for investigators to be looking at everything we actually want them to look at. The thought that they have the time and inclination systematically to snoop on people's private affairs for illegitimate reasons is not reality, and is not an appropriate operating assumption. Watergate-era abuses are frequently raised in this context, betraying a counterfactual notion that we stopped growing in the 1970's. The executive branch knows that history as does the congress. Mindful of it, they perform and oversee. Complemented by the political check of the ballot box, this is our best assurance that the mistakes of the past will not recur.

Finally, the suggested regulations will not have the desired effect. They will merely chase investigations into the criminal justice system where none of the oversight mechanisms inherent in Section 215 exist. The claim that the criminal sphere somehow limits executive action because of a requirement “that a crime has been, is, or will be committed” is wrong. Grand juries may investigate on the rankest suspicion or even to satisfy themselves that no crime has been committed. Assuming arguendo that Justice Department practice could temper this limitless authority, the fact is that terrorist conspiracies (al Qaeda, Hezbollah, etc.) are ongoing. Crimes are being committed, the criminal statutes are tremendously broad, and there simply is no matter remotely touching on terrorism that a grand jury is barred from investigating.