War without end, fear without end, “hair on fire” without end, Constitution: end. Is this acceptable to us? – The Patriot Act renewal case

What follows would not be quite so distressing were it not for the fact that we have declared war against a process not an enemy and empowered an Executive Branch to wage it in secret, i.e. unaccountably.  It is not difficult to imagine speech critical of the government and advocating another way of proceeding as a precursor of “terrorism” against which the secret powers of the executive can be employed preëmptively.  That is not good news for any of us.

Only three months ago those provisions of  the Patriot Act that were up for renewal were renewed for three months to allow for the public debate needed as the Patriot Act aged and some of its provisions were thought by many to have either outlived their usefulness or to have always intruded too greatly on constitutionally guaranteed rights.

That debate didn’t happen.  It was not that the Senate was really busy solving the problems of the country, it was that it was deliberately postponed to permit exactly the same “rushed” setting for a vote that characterized the earlier reasons for a short-term extension.

By LAURIE KELLMAN, Associated Press – Thu May 19, 7:52 pm ET

WASHINGTON – Top congressional leaders agreed Thursday to a four-year extension of the anti-terrorist Patriot Act, the controversial law passed after the Sept. 11 attacks that governs the search for terrorists on American soil.

The deal between Senate Majority Leader Harry Reid and House Speaker John Boehner calls for a vote before May 27, when parts of the current act expire. The idea is to pass the extension with as little debate as possible to avoid a protracted and familiar argument over the expanded power the law gives to the government. (Emphasis added.)


The short-term permits “urgency” to become a factor in the debate that was not otherwise there with three months to consider renewal thoughtfully using available data and facts.  (If as reported agreement was reached on this strategy for passage on or before May 19th, and debate begun PDQ some key issues could have been aired.)  Urgency allows the invocation of “fear” in the debate.  Among politicians it’s the fear that they won’t be perceived to be tough enough on issues affecting the security of the voting public.  The Executive branch employs “fear” to retain the added benefit of the Act in how much more convenient it is to do what it wants without having to follow constitutional strictures.  “Convenience” is easy to believe to be inherently “good” if it’s your convenience.  Acting in lawful secrecy as the Act permits protects against accountability which is also desirable to the executive.

“Urgency” catalyzes “fear” and in this case, fear catalyzes urgency.  Neither fear nor urgency have any natural boundaries.  The imagination can multiply them endlessly.

Among some members of the public it’s the fear that, whatever experience since 9/11 may reveal about the Act’s efficacy, the risks of new terrorist attacks are too high to allow for any relaxation of governmental powers to change it.  For others it is simply the notion that they have nothing to hide (a position readily demolished with only a few reflective questions) and if the government wants to listen to their phone calls and read their email, so be it; only those with something to hide object to this.

The basic act was passed in the immediate aftermath of 9/11 with little debate and less knowledge of the real scope and power of the terrorist threat.  A number of those voting for it said they had not read it.  The idea was to give the Executive Branch the authority to find terrorists using all the means available, if only their use was made lawful.  There have been amendments  made to it in the interim to deal with circumstances not then anticipated or understood.

Those times were scary for all Americans.  We didn’t know anything about the person, Bin Laden, said to have been behind these attacks on the mainland and in our innocence, we were troubled by “why” anyone would hate us enough to do this to us.  We’ve learned more of Bin Laden’s and our own history to know some of those answers now.

On September 18, 2001 by joint resolution the president was granted wide ranging authority to act against terrorist threats by the Authorization for the Use of Military Force.  Signing of the Patriot Act (Acronym is USAPatriot Act for: Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001) was October 21, 2001.

If the Patriot Act was an unconstitutional reaction to the attack as a few recognized even then, it was an understandable one.  It was “urgent” and that justified the possibility of some missteps that could be corrected later.  There were “sunset” provisions to ensure its later evaluation and appropriate correction.  Despite those provisions public debate has not taken place and may never.

Ten years later it remains in place and questions about its constitutionality, effectiveness and the continued desirability of some of its provisions (one of which has never been used) have arisen as they probably should about much or all ten year-old legislation touching on constitutional rights.

The absence of debate in spite of leadership commitments to it highlight something very discouraging about public issues in our country:  the are discussed and debated in private, in effect the “Public Square” at a time of nearly unlimited ability to take part through technology, is no longer there.  The governmental branch charged with reflecting the Public Square, the Congress, does not do it.  Regrettably, debate in Congress although often vociferous, is most often about things other than those that confront the country.

Dispute over whether or not to have a debate over the renewal of some Patriot Act provisions this week has highlighted one of the characteristics of party leaders in either the House or Senate.  The nature of the job requires shifting and appearing to advocate positions that are sometimes diametrically opposed to positions the same leader has taken on earlier occasions.  I have linked to some of Harry Reid’s statements but Bob Dole, Mitch McConnell and all that I can remember in any detail have found themselves in the same situation.

Harry Reid on renewal of the Patriot Act in 2005:

Key item:  (Senator Frisk was majority leader)

“We killed the Patriot Act,” boasted Minority Leader Harry Reid, Nevada Democrat, to cheers from a crowd at a political rally after the vote. (Emphasis added.)

Sen. Robert C. Byrd, West Virginia Democrat, invoked abuse at Abu Ghraib prison in defending his vote against the Patriot Act. “Earlier today, the Senate voted to stop a bill that would have allowed the abuses of American civil liberties to continue for another four years,” he said in a floor statement.

Republicans privately marveled that Democrats would open themselves up to being blamed for the Patriot Act’s demise.


Harry Reid on renewal of the Patriot Act in 2011:

Key item: (Senator Paul is a Republican [Libertarian position] from Kentucky)

“When the clock strikes midnight tomorrow, we would be giving terrorists the opportunity to plot attacks against our country, undetected,” Senate Majority Leader Harry Reid said on the Senate floor Wednesday. In unusually personal criticism of a fellow senator, he warned that Paul, by blocking swift passage of the bill, “is threatening to take away the best tools we have for stopping them.”


Ultimately, despite all the nastiness, the leaders become representatives and spokesmen for a bipartisan consensus.  How they describe the outcomes may differ but to have the votes, unless the majority is extremely lopsided, demands they find a way to agree.  Thus, the debate may start with each taking extreme positions and end with them taking agreed upon positions.  Hypocrisy is built into the jobs, just as bipartisanship is built into the Congress if the majority is slim.

The Public Square is about the last thing leaders want; reaching agreement is much easier without great public debate, potentially rousing people to let their senators and representatives know how they want them to vote.

Each of us who has a vote must consider whether or not this is an acceptable state of affairs to us.  If not, we must craft a way to bring it to an end.