jacksonian democracy

Lost amidst the Michael Jackson trial headlines was news that the Senate Select Committee on Intelligence in closed session last week approved legislation to reauthorize and expand the Patriot Act. The level of citizen concern over reauthorization compared to interest in the Thriller acquittal is almost as disconcerting as the proposed legislation.

News stories on reauthorization are sadly scant. If you are one of those whose legal curiosity extends beyond local criminal matters and into the erosion of our civil rights legacy, perhaps you will find this resource helpful in locating a few of the limited stories on the subject.

It is very tempting to rehash the old arguments against the wisdom of the original Patriot Act. Tempting because the arguments are incredibly strong and nearly irrefutable to those that practice the arcane and nearly lost art of deductive reasoning. But the irresistible morsel of the moment for me is the opportunity for an I-told-you-so.

The last time around the patriotic block there was some discussion of what lawyers refer to as a “slippery slope”. Slippery Slopes abound in legal tomes and it is perhaps unfortunate that such an important idea is encapsulated in such ordinary and seemingly familiar language.

Perhaps if there were a grand term such as “res ipsa loquitur” to describe the process by which certain detrimental changes in the law gather momentum and sometimes crush the spirit of the well-meaning originators, then we would not garner as much flippant ridicule. While the term may be inappropriately ordinary, the phenomenon in this case is as real and present as it was predictable.

What is telling now is the total absence of discussion of whether the original Patriot Act was constitutionally permissible. It appears that to the extent that the reauthorization debate gets visibility, the reauthorization discussion is going to center around making the act permanent and the expansion of the powers granted.

We have slid down this slope in an entirely foreseeable fashion.

It is hard to know with certainty whether the present intention of the politicians is simply another naked power grab or clever political posturing to attempt to move the center of the debate farther toward the totalitarian end of the scale. Perhaps it is some of both. Either way, the essential Constitutional questions have been taken off the table.

The despair is almost enough to send me to the tabloid rack to get the latest on Michael Jackson too.

The powers that are sought in Patriot Redux truly are as seedy as the most lurid tabloid. The FBI’s desire for these powers is conveniently packaged as necessary for fighting terrorism. But in truth, the FBI has long desired the power to issue administrative warrants to circumvent the need for judicial review for what we would have referred to as 4th Amendment searches in days of antiquity.

By playing the terrorism fear card, Hoover’s boys will undoubtedly get their wish.

The argument usually goes something like “the government needs this power because it is too burdensome to go to a court to obtain a warrant”. Warrants, so they claim, consume too much time and energy for effective law enforcement. The problem with this argument is that it can be used to justify almost any form of civil rights infringement you can imagine. All of our Constitutional protections are burdensome on the government. There are more than a few prosecutors that would love to dispense with a trial because of the undue burden.

But, there is little doubt that there are some situations where it is difficult to obtain a warrant in a useful time frame. Truly, I do wish to help out law enforcement by addressing the genuine requirements of a tough job.

The answer, however, is not to eviscerate our civil liberties, but to make the warrants easier to obtain. It is little known by the general public, but the law has long allowed emergency warrants to be issued by a judge over the phone. That the fact of this real and potential flexibility is never a part of the discussion should give all of us insight into the insidious disinformation campaign that is being waged against our Liberty.

Of course, you will never hear the simple idea of hiring more judges and making minor tweaks in the law. The politicians have an agenda and it has nothing to do with protecting you and me. Does anyone seriously doubt which choice the American people would make if actually given the opportunity? Would anyone assert that the better choice is surrendering to the government the right to molest our privacy without cause rather than incurring the expense of hiring a few hundred more judges to guarantee ready access to an independent deliberative body?

An adequately informed public would render the very question rhetorical.

Our faint hope is that it appears to be more fashionable these days to oppose the President than during the previous legislative rubber-stamping extravaganza. Perhaps the Democrats will smell electoral blood in the water and actually mount an opposition to reauthorization.

But given the tepid response of the American people to reauthorization, I will be surprised if legislative opposition goes beyond trying to prevent the expansion of the Patriot Act Powers. Other issues appear more electorally profitable. The politicians totally get it: Americans do not care about civil liberties as long as the government manages to present the illusion of relative Safety. A moment of national reflection on the wisdom of surrendering six centuries of accumulated personal sovereignty does not seem likely.

Have no doubt: this is one time when we will definitely get what we asked for.

Michael, whatever you do, please don’t move Neverland to Africa: at times like these I really need the distraction.