National Review’s Andrew McCarthy thinks proponents of Partiot Act reform, yours truly included, are too concerned with hypothetical problems:
Concerns about “John Doe” warrants — i.e., roving wiretap authorizations that do not name a specific person or place to be surveilled — have been discussed since 2001. Two things stand out. First, although we’ve now had this provision for close to a decade, civil liberties advocates like Mr. Friedersdorf and Cato’s Julian Sanchez still have to couch their objections in the subjunctive mood: the warrants “raise the possibility” of overbreadth abuses “disturbingly similar to the ‘general warrants’” prohibited by the Fourth Amendment. That is, although the Patriot Act has been examined, debated, and reauthorized a number of times since its initial passage shortly after 9/11, critics still have no concrete record that roving taps have been systematically abused, so they have to raise potential abuses that never seem to materialize.
A few points. The concerns about overbreadth—which at the collection stage are at least as likely to result from error as deliberate abuse—are about as “subjunctive” as the benefits of roving taps, given the paucity of public information about their use, which is precisely why caution is in order. (So useful are they, on McCarthy’s telling, that you’d have to be “downright dumb” not to get a roving tap whenever you do FISA surveillance. I’m not sure what he means to imply about our intelligence agents, given that 99 percent of FISA wiretaps are non-roving.) We’ve had extensive Inspector General audits of both Section 215 business record authority and expanded National Security Letter powers—audits which have assuaged some worries in the former case and confirmed them in the latter one. We’ve had nothing comparable for roving wiretaps. It seems a little cute to use the very absence of transparency that characterizes surveillance in the criminal context as some kind of cudgel. And it seems downright absurd when you consider some of the practical realities of intelligence surveillance.
Just in fiscal 2008, the FBI alone collected 878,383 hours (or just over 100 years) of audio, much of it in foreign languages; 1,610,091 pages of text; and 28,795,212 electronic files. A recent review of FBI backlogs by the Office of the Inspector General found that fully a quarter of the audio collected between 2003 and 2008 remained unreviewed (including 6 percent of counterterror acquisitions and 31 percent of counterintelligence acquisitions, the two categories covered by FISA wiretaps). Let that sink in for a second: They have literally years worth of audio material alone that the Bureau itself can’t be sure of the contents of, never mind any kind of independent oversight body.