While natural disasters in the Gulf Coast and the man-made disaster in Iraq continue to grab the public's attention, a constitutional disaster quietly threatens the nation.
The USA Patriot Act's renewal is now almost a fait accompli — accepted by all but the most steadfast civil libertarians in Congress. The House and Senate have separately voted to approve the law with only minor changes, and the final conference committee action and vote is expected within the next week or so. None of the provisions of the law that were slated to sunset now appear likely to do so.
This law, enacted during a "state of emergency" declared by President Bush and intended to be revisited in calmer times, is now effectively being made permanent. California Republican Representative Dana Rohrabacher has strongly objected to the reauthorization on this ground.
The Patriot Act has been and will continue to be used mainly against ordinary Americans accused of crimes unrelated to terrorism, or those who disagree with government policies or happen to be immigrants or of the Muslim faith.
The result is likely to be an enduring shift of power from the legislative and judicial branches to the executive branch — and less privacy and liberty for all.
New Supreme Court Chief Justice John G. Roberts Jr. is unlikely to offer much relief; he has supported the Administration's so-called "war on terror" policies. Unlike retiring Justice Sandra Day O'Connor, who wrote last year that the President did not have a "blank check" even in times of war, her proposed replacement, Harriet Miers, if confirmed would likely be more accommodating on these issues. Granting the President such broad new powers, especially given today's surveillance technologies, would change the very foundations of the American body politic.
A Campaign of Deception
It is now well-known that truth is not this Administration's cardinal virtue. What is less well-known is how sustained and deceptive a campaign has been waged to retain the broad powers of the Patriot Act.
Going back to former Attorney General John Ashcroft's orders to all U.S. Attorneys to defend the law (which most of them did [though a number did object]), and to the Department of Justice website repeating myths about the law in the guise of exposing those myths, the effort has been considerable.
And successful. In the House hearings on reauthorizing the law in July, a number of representatives took the floor to repeat the talking points that the law raises no constitutional or civil liberties issues; merely makes updates to track modern technology; simply gives law enforcement the same tools against terrorists that they had for mobsters and drug dealers; and has occasioned no abuses whatsoever.
New Mexico Republican Representative Heather Wilson assured Americans that they need not fear the law, since it is only directed against foreigners and because law enforcement needs "a court order in order to get any business records or library records or anything else."
Neither point is true. The law can be and has been used overwhelmingly against Americans. The national security letters under Section 505 are akin to administrative subpoenas that demand documents without any court involvement at all, and even the secret foreign intelligence surveillance court in Section 215 must issues warrants if the FBI's application is formally in order.