Patriot Act Reauthorization Uncertain:
The Patriot Act reauthorization has passed the House, but is now encountering serious trouble in the Senate. According to the latest report, it may be dead in the water, and Congress may let the expiring provisions lapse on December 31st.
For those of us who think of the Patriot Act as actual legislation rather than a symbol of the Bush Administration, this is rather puzzling stuff. The dirty little secret about the Patriot Act is that only about 3% of the Act is controversial, and only about a third of that 3% is going to expire on December 31st. Further, much of the reauthorization actually puts new limits on a number of the controversial non-sunsetting provisions, and some of the sunsetting provisions increased privacy protections. As a result, it's not immediately obvious to me whether we'll have greater civil liberties on January 1, 2006 if the Patriot Act is reauthorized or if it is allowed to expire. (To be fair, though, I'd have to run through the effect of every expiring section and all of the reauthorization language to check this - maybe I would feel differently if I did.)
Of course, four years after the Patriot Act was passed, a meeting of everyone who thinks of the Patriot Act as actual legislation could be held in my kitchen. For most people, the Patriot Act is a symbol of the Bush Administration and the War on Terror. From that perspective, the current debate makes a lot of sense: for opponents, fighting the Patriot Act reauthorization continues the valiant struggle against the evil forces of Big Brother and the out-of-control Bush Administration; for supporters, supporting the Act helps beat Al Qaeda, makes the homeland safe from attack, and helps win the global struggle against terrorism. If neither of these visions bears a particular resemblance to reality, well, hey, no one ever said democracy was perfect. As Boon famously advised Otter, "Forget it, he's rolling."
What will happen in the end? My hope is that the Bush Administration will agree to renegotiate some of the more controversial provisions, addressing some of the opponents' concerns and reaching a compromise that reflects the current political landscape. My sense is that there is still lots of ready room for compromise; for example, the restrictions on sneak-and-peek warrants in the reauthorization are really pretty weak. They can (and should) be strengthened, and it seems unlikely that strengthening them would impact any terrorism cases.
Anyway, it'll be interesting to see what happens. Throw some popcorn in the microwave, sit back, and enjoy the show.
For those of us who think of the Patriot Act as actual legislation rather than a symbol of the Bush Administration, this is rather puzzling stuff. The dirty little secret about the Patriot Act is that only about 3% of the Act is controversial, and only about a third of that 3% is going to expire on December 31st. Further, much of the reauthorization actually puts new limits on a number of the controversial non-sunsetting provisions, and some of the sunsetting provisions increased privacy protections. As a result, it's not immediately obvious to me whether we'll have greater civil liberties on January 1, 2006 if the Patriot Act is reauthorized or if it is allowed to expire. (To be fair, though, I'd have to run through the effect of every expiring section and all of the reauthorization language to check this - maybe I would feel differently if I did.)
Of course, four years after the Patriot Act was passed, a meeting of everyone who thinks of the Patriot Act as actual legislation could be held in my kitchen. For most people, the Patriot Act is a symbol of the Bush Administration and the War on Terror. From that perspective, the current debate makes a lot of sense: for opponents, fighting the Patriot Act reauthorization continues the valiant struggle against the evil forces of Big Brother and the out-of-control Bush Administration; for supporters, supporting the Act helps beat Al Qaeda, makes the homeland safe from attack, and helps win the global struggle against terrorism. If neither of these visions bears a particular resemblance to reality, well, hey, no one ever said democracy was perfect. As Boon famously advised Otter, "Forget it, he's rolling."
What will happen in the end? My hope is that the Bush Administration will agree to renegotiate some of the more controversial provisions, addressing some of the opponents' concerns and reaching a compromise that reflects the current political landscape. My sense is that there is still lots of ready room for compromise; for example, the restrictions on sneak-and-peek warrants in the reauthorization are really pretty weak. They can (and should) be strengthened, and it seems unlikely that strengthening them would impact any terrorism cases.
Anyway, it'll be interesting to see what happens. Throw some popcorn in the microwave, sit back, and enjoy the show.
Yours truly,
Mr. X
...no fan of the Act...
While I've attempted to get a handle on a lot of what the Patriot Act does, its just too big and I'm just a lowly 2L who doesn't have any real experience in the areas of law it affects. What are the main expiring provisions that you are saying are actually protectful of privacy rights and which ones put limits on non-expiring provisions? The parts of the Act I'm more familiar with are mainly non-expiring provisions.
Several times I've challenged apparently well-informed, intelligent, and rational people who were criticizing the Act. They are usually surprised to learn that most of their concerns have nothing to do with the Act itself, but rather with FISA which , so far as I know, not even the more radical dimocrat poseurs in the House and Senate, have suggested needs revision.
The MSM do not like George Bush and they are only too happy to mislead the public about the Patriot Act. Either that or most of those who report on the Act are stupid and/or lazy. By the way NPR and "public" television have done a particularly poor job in this regard. Some of those who think of themselves as well-informed are, as a result, even more than usually mis-informed about the Act. The result is a profound and widespread ignorance of what it means, how it works, and how it has changed the issuing of FISA warrants.
You don't explicitly argue otherwise, but it's worth clarifying that this isn't only because USA PATRIOT Act critics are unbalanced; it's because some in the administration, most notably Atty Gen Ashcroft, threw a lot of effort into political theater surrounding the Act.
Orin writes: "My hope is that the Bush Administration will agree to renegotiate some of the more controversial provisions, addressing some of the opponents' concerns and reaching a compromise that reflects the current political landscape."
Gee, wouldn't that have been a wise course of action yesterday?
AppSocRes: you may be right-- there is a ton in the Act that I'd been hearing about for years. But there are zero facts contained in your post. Please consider the fact that being obnoxious is unlikely to win others to your side. (Calling some congressmen "radical dimocrat poseurs" qualifies as obnoxious.)
Do you think that the Act is important for national security? Please make that case. Refraining from name calling will help you win the argument.
I think one can make the assumption that the 4+ conservative republicans who voted against cloture don't feel this way.
So in response, I'd say it is *more* the GOP, rather than the Democrats, who see the Patriot Act as "symbolic", given that up until a few weeks ago even Russ Feingold was willing to vote for an agreed-to compromise.
is a logical contradiction, as the statement itself incldues the term "democracy was perfect."
I realize that I haven't been policing the comment threads recently, but for the record, calling another poster an "Idiot" doesn't seem consistent with the VC comment policy. Please, everyone, keep it civil.
I'm not asking in order to imply that the Patriot Act is unnecessary; this is a genuine question.
You're really quite funny.
If there were any indication that Republicans were serious about terrorism, I might even think you were being serious. As it is, though, it is clear that terrorism is nothing but a nice boogyman to scare people into supporting a small band of particularly noxious demogogues with a mostly non-democratic (not the party, the concept) agenda. So I have to assume you're a satirist.
Here's part of the govermment's response to your question:
DOJ REPORT
The Senate passed one verion of a bill, and the House passed another. There was a compromise between the House and Senate versions and the two versions were reconciled. That's what happens for virtually all bills.
Now the Democrats in the Senate are leading a filibuster of that compromise. Accordingly, it is the Democrats who are playing politics and increasing the risk of terrorism.
As I said, the only upside to all of this with respect to the War on Terror is that it will be helpful for electing Republicans.
By Republicans. Who would evidently rather have the Patriot Act as a political issue than a law. As has been mentioned, the Senate unanimously passed a reauthorization earlier this year. A compromise was doable, and was rejected by Republicans.
“Those that would give up essential liberties in pursuit (of) ... a little temporary security deserve neither liberty nor security,” said Sen. John Sununu, R-N.H.
Also giving credit where it's due, the compromise was not rejected by "republicans," but by the republicans in the House. The Senate republicans were 100% behind this compromise.
So A.S., before you throw around accusations of unpatrioticness, there are 55 members of your own party, elected to national office, who you're tarring with that brush.
Pot, let me introduce you to kettle. . . .
Sorry AS, but you got owned. Your "argument" was just a bunch of talking points that you probably got from Rush Limbaugh or Glenn Reynolds.
I don't know how much of Rush Limbaugh's output is online, but I'm curious to see whether you can back it up with anything Reynolds has written.
I just wish everyone would remember that the title of the USA PATRIOT Act is an acronym, and as such should be capitalized. It stands for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism" -- a particuarly stupid name for a law if you ask me, whatever its substantive merits.
Capitalizing the acronym is kinda annoying, like having it yell at you, but this serves as a useful reminder that the law could have been named better. Too bad that the sort of substantive discussion of the law's merits gets lost in all the bloviating about things like patriotism, but remember -- it started with the name.
One key thing that A.S. omits is that after both houses passed their versions of the Patriot Act in July and the Senate appointed their conferees the same day, the House waited until November 9th to appoint theirs. This created the present crisis, which is exactly what the House Republicans want.
Has there ever been a time when there was less serious work and more political stunts than the Republicans have brought to Congress?
There is no legitimate need for the low thresholds of cause needed for searches or the gag orders in the present Patriot Act. It all adds up to cutting judges out of the process and leaving everything up to the police, never a good idea and contrary to the Bill of Rights even for an "originalist." The Senate version gives the government plenty of power to investigate.
Yes we should reintroduce the draft, but not because Murtha proposed it. The relevance of Murtha's background is that it shows that insulting him is childish. Also, to say that he is for "cutting and running" is not accurate, as what the f_ck does it mean to "cut and run"? GIven that even most Republicans want troops out by the end of the year, everyone is for "cutting and running." Why not quit using the Glenn Reynolds buzzwords and actually debate the facts?
Sure, but that's what he says nominally. Just like he's "against torture." He then goes on to imply that all Democrats are traitors just about every day.
Could you be more specific? My understanding of the reauthorization of 215 is that records must be "relevant" to a terrorism investigation... exactly the same standard as for subpoenas in normal criminal cases.
So
here goes "Here goes" is a link in the preview, but it was last time also.
As I said, the reauthorization of 215 provides that records must be "relevant" to a terrorism investigation... exactly the same standard as for subpoenas in normal criminal cases.
So, what Feingold wants is that in normal criminal cases, the government can subpoena any records relevant to the investigation, whereas in a a terrorism case, the government has to meet a MUCH HIGHER bar.
Why does Feingold want to make terrorism investigations much harder than criminal investigations?
I'm sure I've left material out. But the above really covers the broad import of the Act. You would never know this from the hysterical rants I've heard for the past three years in the MSM and from other elements of our domestic left-wing. (I'm using "left-wing" as a descriptive and not a derogatory term, to describe that portion of the population whose views are to the left of about 75% of the population).
I suggest that many of the posters who are so upset about my earlier post, go to the Library of Congress web site and find there the publicly available summary of the Patriot Act which runs to about five or ten easily read pages. They might also pass copies of the text to their friends. It really is a far more innocuous bill in toto than they've been led to believe by a too slavish dependence on the media and house organs of left-wing (meant in a non-derogatory way -- see above) organizations.
AppSocRes: "It really is a far more innocuous bill in toto"
Yep, you are 100% correct about that.
And every single innocuous bit could have been law months ago. As has been pointed out various times, the Senate unanimously passed a reauthorization of the PATRIOT Act in July. But the Republican conferees refused to come up with a passable version.
You can disagree with Feingold's views on specifics, but not with this statement of facts: The only reason that we are debating this conference report in the middle of December, rather than the middle of September or October, is because the House refused to appoint its conferees for three and a half months. It passed its reauthorization bill on July 21, but didn’t appoint conferees until November 9. In the Senate, on the other hand, we passed a bill by unanimous consent on July 29 and appointed conferees the very same day. We were ready and willing to start the process of resolving our differences with the House right away, leaving plenty of time to get this done without the pressure of the end of the year deadline.
Also, today, Frist rejected a compromise offer to extend the bill's provisions for 3 months to allow time to hammer out a compromise.
Of course you're right that some outside groups don't grasp all the subtleties and various aspects of the PATRIOT Act. But every "innocuous" part of it could have been easily reauthorized in the summer. But House Republican leadership doesn't want that-- they want a political issue, not a law.
In the normal case, the judge evaluates the evidence and makes the decision. Under 215, the judge is a rubber stamp.
All the applicant for a 215 search has to do is state that "the records concerned are sought for an authorized investigation conducted in accordance with subsection (a)(2) to protect against international terrorism or clandestine intelligence activities." No factual support is required.
That is what all the fuss is about.
I think we all win on that one.
On another front, I have always been, no matter which party controlled the Senate ,opposed to requiring a super- majority cloture vote ,as being unconstitutional. The consitution spells out the very few circumstances when a super majority is required, and limiting debate is not one of them. A Senate rule cannot trump constitutional text.
A later editorial in the same paper (this one I believe by the Journal editorial staff) also praised the act. Again, not because it had been so significant in capturing terrorists, but because powers granted under it had enabled police to catch a woman who had cut the unborn child out of another woman.
Child pornography is abhorrent, and the second example sickening, but neither was an act of terrorism. Had Congress wanted to expand the powers of law enforcement for these reasons, they had plenty of opportunity. They did not do so. They passed a law to enhance powers of defense against terrorism. That the law is being proudly used for other purposes should sit well with no one, and is clear indication that some modification is needed. If the bill that came out of committee is not one that eliminates such misuse, then it should not be passed.
2) Even if you don't, does any conservatives agree with Orin Kerr that the contraversial parts of the Patriot Act are relatively minor compared to the other parts that are being reauthorized so that passage of the original compromise would be better than no bill at all?
2) If so, and if you agree with AS and NJ and me that the reason the GOP is pushing the contraversial issues is mainly to make the Democrats look weak on terror for the elections, how do you suport thus putting the constitution and/or our safety at risk for purely political gain?
I don't think that they need any help, as they're quite weak on their own.
That is incorrect. The Conference Report that the Democrats filibustered provided that the request by the government for an order under Section 215 include "a statement of facts showing there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) ... to obtain foreign intelligence information not concerning a US person or to protect against international terrorism or clandestine intelligence activities..."
While I agree that Orin said that the controversial sections are a small percentage of the overall original Patriot Act, I don't read anything in the post as saying "that passage of the original compromise would be better than no bill at all".
Frankly, if you think that the controversial sections are minor, you should also be willing to say that passage of the House-Senate Conference Report would be better than no bill at all.
So, obviously, it is wrong to say that the conversial parts are "minor". They may only be one or two provisions, but both sides seem to think that that are very important - at least important enough so as to prevent passage of the entire bill unless they get their side gets its way on those few provisions.
I'm sorry for making the assumption that Orin Kerr is both literate and logical.
Moving on...
The above assumption apparently cannot be made for AS.
If A is not B, that does not mean that A is C. That the contraversial sections are a "minor" (i.e. small, not i.e. unimportant) portion of the act itself does not mean that the contraversial portions are not, well, contraversial.
And I'm perfectly willing to assume for the hypothetical that I put up that Democrats are acting in whatever faith you want. We can even say (this will make your heart tingle) that Democrats are working in cahoots with Al Queda. As a logical exercise, though, what Democrats should do is irrelevant, since its a given and the focus of the inquiry is on what Republicans should do. If it is in bad faith for the Democrats to filibuster B but not A, that does not alter the Republican strategy GIVEN that B leads to a filibuster (and thus no bill) and A leads to no filibuster (and thus a bill).
So, anyone want to take a stab?
- he favors the passage of the noncontraversial portions of the bill
- he takes no position on the contraversial portions of the bill
- he thinks the noncontraversial portions of the bill are by themselves serious and important legislation that deserves to be passed
Huh?!? Way to lump them together. By the way, Hitler did not show bravery in any war. He was in WWI for four years, and was promoted all the way to corporal.
Reagan,Cheney,and "W" didn't for whatever reason.
Cheney told us why he didn't fight, he "had better things to do." Reagan was in the military during WWII and Bush, well, his Dad was real important.
There is no objectively "right" place to set the balance between civil liberty and security. It's a subjective question. Indeed, it's a quintessential political question. Therefore, neither the White House nor anyone else can make the statement "Restriction X on civil liberties is necessary to fight terrorism." There is no "necessity," only a balance between safety and security.
It follows that the White House has no business getting quite so categorical in its anti-terrorism efforts. The current kerflufle over the Patriot Act renewal is, at its root, the same discussion we just had about torture. I thought it singularly inappropriate for the White House to threaten vetos, enage in violent arm-twisting, etc just as I think it is completely wrong of the White House to insist on an all-or-nothing renewal of the Patriot Act and refusing a three-month extension to allow for additional debate.
What kind of country we're going to live in and how we value and protect things like civil liberties and American values is not something any President can or should try to dictate. It's a consensus that is only formed after debate and a debate is exactly what we're having right now. It's a very healthy thing and The White House has no business trying to cut off it off.
It also follows that the Democrats have no business getting quite so categorical in their anti-anti-terrorism efforts.
Well, being in the minority across the board,
the Democrats aren't in a position to be categorical about much of anything. But it's a bit rich to call wanting a bit more judicial oversight "anti-anti-terrorism." Checks and balances, as one of the Senators noted today, are very American.
In any event, you can hardly put the revolt over the last few days down to mere partisanship. The anti-torture amendment passed 90-9 in the Senate and Republicans joined in voting against cloture while 2 Democrats voted for it. Specter voted for cloture today but he's completely aghast at the recent allegations about the NSA. (This is going to be a huge problem for The White House because even many of the President's most powerful supporters are starting to think the balance now needs to swing back toward civil liberties.)
The problem here is that The White House's "Trust us. We know what we're doing!" theme doesn't wash anymore. It's been demonstrated in pretty dramatic fashion that The White House isn't infallible. But in my opinion, this is a good thing. Checks and balances ARE deeply American and we're far more at risk from putting blind faith in a leader -- any leader -- than we are from any outside forces. It's time for a bit of critical thinking about what works, what doesn't and how it all fits in with our understanding of American values.
he and it agree on the notion that any war against terrorism is unwinnable.
Has he actually said that "any war against terrorism is unwinnable"? I.e., as opposed to a war on terror as conducted now, or as opposed to being de-escalated to the point where terrorism is no more a threat than, say, traditional organized crime? That kind of claim requires sourcing, and putting it into Feingold's mouth is strawmanning with further explanation and sourcing. Put another way, it requires some benchmark for 'winning.' Seriously, I want to know what counts as 'victory' or 'winning' before I evaluate the claim.
Further, "Feingold goes so far as to say on the record that the reason why terrorists are attacking America is because American troops are in Iraq."
Has he said this is the reason? I doubt it, though I don't doubt that it contributes to animus. There is a legitimate debate, of course, about whether being in accurate makes attacks more or less likely overall, and how it affects distribution of attacks. But calling it "the reason" is a foolish argument, and putting it into Feingold's mouth is just strawmanning him. Do better.
You are correct, my error. In my defense, I don't think it is an accident that none of the articles on this actually discuss the provisions of the Act. They are impossible to keep straight.
Having said that, it still looks to me that the Judge has to take the justification for the investigation on faith, unlike a magistrate in the usual situation, who has to find probable cause both that a crime has been committed and that the search will produce evidence.
I would be intersted if anyone else has tried to parse this out.
b) I really think Prof. Kerr's use of Animal House references in his posts makes him the premier poster on the VC. That's the sort of reference we need to see more of in legal discussions such as this. "I can't belive I threw up in front of Dean Wormer." "Face it, Kent..." Such a great film.
Second (and relatedly), there is a great deal of incivility on this blog and refering to someone as an 'Idiot' is hardly the most relevant form of incivility. Calling Murtha "Cut and Run" is just one example of the more relevant incivility to which I am referring. So (I can't believe I'm writing this) why should we single out "Greedy Clerk" for chiding??
I assume this is exactly what all the fuss is about, and rightly so. The criteria for being suspected are minimal, and the role of a judge in evaluating evidence supporting the request has been reduced to almost nothing, from what I can tell. It's something I'd prefer to be wrong about, so let me know if that's not the case.