Re-Peeling the Banana

The Tea Party and the Patriot Act Create a
Conservative Clash

We have heard much lately about how Tea Partiers, like other Republican members of Congress, want to repeal healthcare reform, arguing the new law is, among other things, an unwarranted intrusion of government into private lives. Their dissatisfaction centers on its “individual mandate,” which requires people to buy health insurances from a private carrier or pay government penalties.

If Tea Partiers object to a government intrusion forcing them to buy something geared toward protecting them from financial ruin in the event of catastrophic health problem(s), then it seems as though they would object even more to government intrusions geared toward violating their privacy and possibly sending them to prison with limited Constitutional rights. As Democratic Representative Dennis Kucinich of Ohio recently challenged Tea Partiers on the House floor, “How about the Patriot Act, which has the broadest reach and the deepest reach of government to our daily lives?”



A cartoonist's take on the Patriot Act


Last week, a handful of freshman Tea Party legislators rose to the challenge. The House was voting on a bill to extend, for nine months, three aspects of the Patriot Act that are due to expire on February 28. The first permits court-approved roving wiretaps that permit surveillance on multiple phones. The second, known as the “library records provision,” gives the FBI court-approved access to “any tangible thing” relevant to a terrorism investigation. The third, known as the “lone-wolf” provision, allows secret surveillance of non-U.S. individuals not known to be affiliated with a specific terror organization.

The House Republican leadership was so confident of passing the extension that they brought it up for vote using an expedited procedure that required a two-thirds majority for passage. The final vote of 277-148 fell just short of the necessary total, resulting in the measure’s defeat and considerable embarrassment for the GOP. About two-thirds of House Democrats voted against the measure. However, twenty-six Republicans, including seven freshman lawmakers backed by the Tea Party movement, joined them in dissent.

Winning the vote of just those seven Tea Partiers would have been enough to provide the necessary two-thirds majority for passage. The Tea Partiers objected to the Patriot Act as an unwarranted intrusion on everyday life.

The Obama Administration backed the extension. In fact, it favors extending all three provisions for three years. However, it was willing to settle for nine months as a buffer period allowing “new lawmakers to get up to speed on the issue and . . . discuss fully the usefulness of the techniques.”

President Obama has failed to deliver on a number of campaign promises and I find that I can accept most of them without significant qualms. However, I must agree with Cynthia Tucker of the Atlanta Constitution-Journal that Obama’s “most disappointing decisions have revolved around national security issues and his insistence on retaining [former President Bush’s] oppressive policies on terrorism.”

I have written many time in the past that I can understand need for the types of provisions that were up for vote, in order to allow law enforcement officials the flexibility and swiftness to apprehend and detain terrorism suspects before they could do harm. My chief objection to the Patriot Act, as currently written, lies with the lack of independent judicial review it provides. Simply put, the people who investigate, arrest, and jail suspected terrorists should not also be the same people who sit in judgment over them.

Obama and Attorney General Eric Holder attempted to deal with this by pushing for trials of terrorism suspects in civil courts on U.S. soil. Unfortunately, opponents used invective to stoke the public’s existing fears over this matter. Coupled with the Administration’s often half-hearted and ineffective attempts to promote the practice, Obama had already lost this battle almost before he began.

This is one reason I have become increasingly convinced that all aspects of the Patriot Act require resistance and diminishment whenever possible. I also believe the most likely reason a civilian court might reach a different outcome than a military tribunal is rejection of illegally gained intelligence/evidence by the former. It seems giving law enforcement greater leeway leads to abuses and sloppy casework far often rather than building solid cases after detainment.

The Electronic Frontier Foundation recently completed a study, using data collected through Freedom of Information Act requests, which concludes the FBI has committed over forty thousand intelligence violations since the September 11 attacks. It further uncovered instances of the FBI “lying in declarations to courts, using improper evidence to obtain grand jury subpoenas, and accessing password-protected files without a warrant.”

The recent failure to pass an extension of three provisions may be an embarrassment for Republican leaders and the White House but it is hardly a death knell for the legislation. The GOP has already re-introduced the bill under regular procedures and passed it with a simple majority. Meanwhile, the Senate has introduced multiple bipartisan bills to make the provisions permanent.

Russ Feingold, the former Democratic Senator from Wisconsin combined canny understanding for the seductive appeal of the Patriot Act with equal acumen for its potential abuses when he was the lone Senator to vote against its initial passage in October 2001. “Of course, there is no doubt that if we lived in a police state, it would be easier to catch terrorists . . . But that probably would not be a country in which we would want to live. And that would not be a country for which we could, in good conscience, ask our young people to fight and die. In short, that would not be America.”

Feingold was defeated last November by Republican Ron Johnson, a Tea Party-backed candidate. During the campaign, Johnson called healthcare reform “the greatest assault on our freedom in my lifetime” and vowed to repeal it. I can only hope he will show the same integrity as his seven House colleagues when attempting to reconcile Senate bills extending the Patriot Act provisions with the House version.

I certainly hope he does better than President Obama. As a Senate candidate in 2003, Obama said he would vote to repeal the Patriot Act, calling it a “shoddy and dangerous law.” Now he justifies his preference for a three-year extension of some of its abuses by arguing, “This approach would ensure appropriate Congressional oversight by maintaining a sunset but the longer duration provides the necessary certainty and predictability that our nation's intelligence and law enforcement agencies require.”

I have recently argued that some nations, such as Egypt, may not be ready for abrupt, dramatic change – even change as desirable as democratic rule. The United States, on the other hand, is a well-established democracy that can survive sudden shocks. While Obama’s desire for stability is understandable, I feel it misplaced in support of a law that does so much to gut civil liberties and the Bill of Rights.

The Patriot Act is a bad banana, pure and simple. However, hope of repeal is as unlikely in this case as it for Republican seeking a total repeal of healthcare reform, even if Obama showed greater desire to try. Any banana once peeled is impossible to re-peel. The only practicable strategy at present is to continue using every opportunity to resist extending the law’s provisions and drawing attention to its liabilities. At present, this seems limited to a group of freshman Tea Party Representatives.