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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.
Mr. X (www):
Cloture went down, 52-47. Good times.

Yours truly,
Mr. X

...no fan of the Act...
12.16.2005 1:05pm
Erick:
Prof Kerr,

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.
12.16.2005 1:18pm
AppSocRes (mail):
I actually had occassion to study the Patriot Act, while serving as consultant to the Congress. A year or two ago Rep. Marty Meehan published an op-ed piece in the Boston Globe, criticizing the Act. To paraphrase Mary McCarthy, every word in the screed was a lie, including "the" and "and". Others may have noticed, but the Globe never bothered to print a rebuttal or corrective letters to the editor.

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.
12.16.2005 1:21pm
Bob Bobstein (mail):
Orin wrote: "For most people, the Patriot Act is a symbol of the Bush Administration and the War on Terror."

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.
12.16.2005 1:34pm
moonfall:
For most people, the Patriot Act is a symbol of the Bush Administration and the War on Terror.


I think one can make the assumption that the 4+ conservative republicans who voted against cloture don't feel this way.
12.16.2005 1:35pm
Justin (mail):
Also, it would be helpful to point out that the Senate passed a compromise bill that would have accomplished what Orin Kerr stated overwhelmingly, but the GOP decided that they needed to play politics due to their sagging numbers and made significant alterations to the bill in committee (moving the language far beyond the more contraversial house bill).

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.
12.16.2005 1:37pm
Moral Hazard (mail):
The statement

hey, no one ever said democracy was perfect.

is a logical contradiction, as the statement itself incldues the term "democracy was perfect."
12.16.2005 1:46pm
A.S.:
The most important contribution to the War on Terror we, as citizens, can make is to reelect Republicans to Congress and the White House (if for no other reason than to keep John "Global Test" Kerry, Jack "Cut and Run" Murtha, and Howard "Yeeeaaargh" Dean out of power). That the Democrat-led filibuster of the Patriot Act will help accomplish this goal allays my concerns to some extent that we continue to restrict, rather than increase, our ability to catch terrorists.
12.16.2005 1:58pm
Traveler:
Is anyone else wondering whether Orin will actually have a "Patriot Act" party in his kitchen?
12.16.2005 2:00pm
Greedy Clerk (mail):
AppSocRes is a parody of a right winger I believe. Considering that the vote against cloture was very bipartisan, the talk of the "dimocrats" and the "anti-Bush MSM" (if only that were the case) must bbe a joke. I suggest AppSocRes, if he is indeed serious, go read what the critics of the Act, such as Senators Feingold, Sununu, Hagel, etc., are actually saying --- they are not against the majority of the provisinos in the Patriot Act, they are just against certain provisions which have almost nothign to do with terrorism, and are aimed at simply expanding prosecutorial powers so we can git more drug users (except when the drug users' last names are Bush or Limbaugh).
12.16.2005 2:03pm
Roger (mail):
But AppSocRes, even though you call other people liars, you don't provide any specifi cs, so I think that you are just a political hack, after all. After all, as a "consultant to Congress" you must have some political skills. If I were to take you seriously, you would have to provide specifics about what was asserted and what your interpretation of the text means. But, you did not. In some ways, in this post-9/11 era, I think that the war on terror will be lost if people speak in vague terms and don't address issues in a rigorous manner.
12.16.2005 2:03pm
Greedy Clerk (mail):
AS -- you too are absurdly misinformed. As Justin pointed out, the Senat UNANIMOUSLY passed a Patriot Act compromise bill a few months ago that contained all the anti-terrorism provisions. The House Republicans decided to insert a bunch of obviously offensive things back into the bill, and that led to the filibuster. Who is playing politics? WHo is increasing the risk of terrorism? Go read the facts before you post. Idiot.
12.16.2005 2:06pm
Medis:
I think this is a good example of how by gradually eroding the trust between the American people and their government, the Bush Administration has hurt our ability to fight the "war on terror" in the long run. In other words, yes, the law of unintended consequences remains in effect even after 9/11.
12.16.2005 2:07pm
Greedy Clerk (mail):
AS -- your insults to Jack Murtha are also beyond the pale. Murtha has more integrity in his left pinkynail than you have in your whole chickenhawk body. He is a vet with several purple hearts, the first Vietnam Vet to be in Congress, a man well-respected by the Pentagon. Who are you? Just another Republican chicken-hawk who would go cryign to his mommy if anyone even implied that you had to go to boot camp, let alone actually go fight the war that you cheerlead for. Clown.
12.16.2005 2:09pm
OrinKerr:
Greedy Clerk,

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.
12.16.2005 2:11pm
PersonFromPorlock:
A question which never seems to get asked: is the Patriot Act necessary at all? After four years, can the government point to a case which could not have been made without one of its provisions, or to some terrorist act which would have happened if it didn't exist?

I'm not asking in order to imply that the Patriot Act is unnecessary; this is a genuine question.
12.16.2005 2:13pm
Greedy Clerk (mail):
Orin -- I apologize. For the record however, I find AS's comments, which are based on blatant lies and personal insults and insinuations of treason against true patriots, to be more offensive than the use of the word "idiot." That one may disagree with Murtha, Kerry or others does not mean that they are somehow against what this country stands for. AS's rhetoric and some of the other rhetoric by the commenters strikes me as beyond "incivil." But I recognize that two wrongs do not make a right and therefore apologize.
12.16.2005 2:17pm
Fishbane (mail):
The most important contribution to the War on Terror we, as citizens, can make is to reelect Republicans to Congress and the White House (if for no other reason than to keep John "Global Test" Kerry, Jack "Cut and Run" Murtha, and Howard "Yeeeaaargh" Dean out of power). That the Democrat-led filibuster of the Patriot Act will help accomplish this goal allays my concerns to some extent that we continue to restrict, rather than increase, our ability to catch terrorists.

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.
12.16.2005 2:18pm
Justice Fuller:
PFromP:

Here's part of the govermment's response to your question:

12.16.2005 2:20pm
Justice Fuller:
Oops, let me try again

DOJ REPORT
12.16.2005 2:21pm
A.S.:
Greedy Clerk: your personal insult is not appreciated.

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.
12.16.2005 2:21pm
Bob Bobstein (mail):
A.S.: the two versions were reconciled

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.
12.16.2005 2:26pm
Bob Bobstein (mail):
I'm not saying Sununu is right on all the issues, just that the Republican conferees would have come up with a bill less offensive to most Dems and some Republicans if they were actually concerned with getting the Act reauthorized. But they were not.
12.16.2005 2:28pm
JB:
And Sununu was quoting, I believe, Benjamin Franklin. Let's give credit where it's due.

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.
12.16.2005 2:38pm
Bob Bobstein (mail):
Well, JB, you're right that the material in the bill that led to this fililbuster came from the House, but the Republican Senate conferees coulda shown a little more spine in committee. You're also right that Sununu didn't make that line up.
12.16.2005 2:45pm
Greedy Clerk (mail):
Greedy Clerk: your personal insult is not appreciated.

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.

12.16.2005 3:21pm
SP (mail):
This is not the time or the place for arguing about Murtha, though I feel the need to add that saying Murtha is for a "cut and run" policy is... well, accurate, since he wants a withdrawal on a very short time table. I fail to see why Murtha having a million purple hearts would make his current opinions on the Iraq War any more or less legitimate. Should we also reinstitute the draft because he has proposed that?
12.16.2005 3:37pm
Shelby (mail):
Greedy Clerk:

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.
12.16.2005 3:40pm
Tyrone Slothrop (mail) (www):

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.
12.16.2005 3:43pm
Stephen Kaus:
Interestingly, Glenn Reynolds is on the civil liberties side of this issue. He linked to a terrific speech by Russ Feingold that lays out the whole thing.

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.
12.16.2005 3:47pm
Greedy Clerk (mail):
Should we also reinstitute the draft because he has proposed that?

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?

12.16.2005 3:50pm
Greedy Clerk (mail):
Glenn Reynolds is on the civil liberties side of this issue.

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.

12.16.2005 3:51pm
A.S.:
"There is no legitimate need for the low thresholds of cause needed for searches or the gag orders in the present Patriot Act."

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.
12.16.2005 3:52pm
Stephen Kaus:
Well, my attempt to create a link did not work and the URL is over the allowed 60n characters, so I will try one more time. If this does not work, go to instapundit and scroll down to 5:55 pm on December 15th. It is worth reading.

So
here goes "Here goes" is a link in the preview, but it was last time also.
12.16.2005 3:54pm
A.S.:
ital off?

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?
12.16.2005 4:06pm
A.S.:
Shoot, I thought that would end the itals.
12.16.2005 4:06pm
AppSocRes (mail):
Some specifics on the Patriot Act, as requested earlier: (1) Almost all the major provisions are reasonable expansions of FISA with regard to the types of surveillance and the circumstances under which warrants will be issued. Many of these were nothing more than long overdue updates of FISA to deal with changes in communication technology, e.g., so called roving wiretaps. (2) The outraged (and outrageous) complaints from librarians, book stores etc., are absurd. The searches they're complaining about were allowed under FISA: It's just the predicate acts that have been expanded to include things related to terrorism. (3) In fact, many of the changes to FISA under the Patriot Act involve nothing more than expanding the definitions of the predicate acts required to obtain a FISA warrant. (4) The Patriot Act also eased the restrictions on information sharing between various intelligence gathering agencies. I'm more worried about the fact that these agencies do not appear to be taking advantage of this than I am that it's any great expansion of government power. (5) "Sneak and peek" warrants are critical. There are obvious situations where you want government agents to conduct a search without a terrorist being aware of it, e.g., to obtain from a computer the names of terrorists who are about to receive a shipment of Sarun without alerting the shipper and aborting the possibility of capturing the chemical.

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.
12.16.2005 4:07pm
AppSocRes (mail):
Help! We're being involuntarily italicized! Is this some EU trick?
12.16.2005 4:09pm
Bob Bobstein (mail):

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.
12.16.2005 4:16pm
Bob Bobstein (mail):
Also, I win the argument because I managed to close the italics.
12.16.2005 4:17pm
Stephen Kaus:
A.S. No that is not true at all. As Under 215, if a judge is told that the search is relevant to a terror investigation, the judge has to authorize the search. In a normal situation, the government must present facts that convince the judge that there is probable cause to think the search will produce evidence of a crime.

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.
12.16.2005 4:22pm
Tyrone Slothrop (mail) (www):
Also, I win the argument because I managed to close the italics.

I think we all win on that one.
12.16.2005 4:22pm
Stephen Kaus:
Bur where are my links?
12.16.2005 4:25pm
The NJ Annuitant (mail):
Cloture went down to defeat. If we suffer another terroist strike on our soil, I wonder if the voters will hold the Democrats to account. I suspect they will.
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.
12.16.2005 4:26pm
Bob Bobstein (mail):
Wow, terrific stuff, Mr. Annuitant. Welcome to the thread! Now, read the thread, won't you please?
12.16.2005 4:29pm
panthan (mail):
On the third anniversary of the passage of the patriot act, John Ashcroft wrote an editorial in the Wall Street Journal singing the praises of the act. He provided no instance in which it had actually been used against terrorists, though he did insist that it was critical in that regard. He did, however, mention that some of the expanded powers were justified because they had recently been used to capture some child pornographers.

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.
12.16.2005 4:31pm
Justin (mail):
1) Is there any conservatives here that will admit that some of the Patriot Act's more contraversial parts raises some constitutional concerns?

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?
12.16.2005 4:34pm
Sydney Carton (www):
"...is mainly to make the Democrats look weak on terror for the elections..."

I don't think that they need any help, as they're quite weak on their own.
12.16.2005 4:41pm
A.S.:
Stephen Kaus,

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..."
12.16.2005 4:44pm
Frank Drackmann (mail):
What fallacy is it when someone is considered an honorable man because of their war/military service? Or dishonorable because of lack of it? Hitler,Castro,and John Kerry all displayed bravery in their respective wars. Reagan,Cheney,and "W" didn't for whatever reason.
12.16.2005 4:44pm
A.S.:
"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?"

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.
12.16.2005 5:00pm
Justin (mail):
"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."

I'm sorry for making the assumption that Orin Kerr is both literate and logical.

Moving on...
12.16.2005 5:29pm
Frank Drackmann (mail):
And 50% of baseball is 1/2 mental.
12.16.2005 5:30pm
Justin (mail):
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.

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?
12.16.2005 5:33pm
Justin (mail):
BTW, just to make it clear (and so if I am wrong, Orin can correct me on this), what Orin is saying is:

- 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
12.16.2005 5:35pm
Greedy Clerk (mail):
Hitler,Castro,and John Kerry all displayed bravery in their respective wars.

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.

12.16.2005 5:39pm
The Original TS (mail):
There's something going on here that I've yet to see discussed.

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.
12.16.2005 5:41pm
A.S.:
"It follows that the White House has no business getting quite so categorical in its anti-terrorism efforts."

It also follows that the Democrats have no business getting quite so categorical in their anti-anti-terrorism efforts.
12.16.2005 7:00pm
AppSocREs (mail):
Greedy Clerk: I hate having to defend one of the five or six most evil men of the past century, but Hitler was in fact quite a brave soldier. He was a message runner--one of the most dangerous battlefield jobs in WW I--and won an Iron Cross (about equivalent to the USA's Silver Star). Some historians have suggested that Hitler's homosexual behavior may have kept him from promotion. Americans have a bad habit of equating might and right as you seem to be doing here. It's salutary to remember that the German Army in WW II never lost a battle in which they were outnumbered by less than two to one. One can acknowledge the bravery and skill of the WW II German army, while still loathing the system it defended. As for the others mentioned in your posting: They're still alive. I'll let them defend themselves.
12.16.2005 7:11pm
The Original TS (mail):
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.
12.16.2005 9:54pm
Olustee (mail):
Russell Feingold is a democratic senator from Wisconsin who is floating feelers for presidential nomination. He is backed by my local paper, the Milwaukee Journal-Sentinel, and both he and it agree on the notion that any war against terrorism is unwinnable. 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. IOW, if we stopped fighting terrorists, they would stop attacking us. I put these points down in order to show that Feingold's opposition to the Patriot Act is part of a larger strategy which is to mobilize what is in essence a pacifist, anti-war voter base. The Journal-Sentinel is pushing Feingold in behalf of an anti-war, anti-Bush agenda that places it in the same category as Madison's hoary Progressive Magazine, which just barely manages to keep the hammer and cycle off its masthead.
12.16.2005 11:05pm
phred:
Olustee:
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.
12.17.2005 12:10pm
Stephen Kaus:
A.S.

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.
12.17.2005 1:47pm
JB:
Olustee: Then why did they attack us before we went to Iraq?
12.17.2005 10:11pm
RB3 (mail):
a) If Prof. Kerr does have a party in his kitchen, count me in.
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.
12.18.2005 8:20am
Bill (mail):
First, the most contraversial aspects of the Patriot Act debate are not even part of the Patriot Act, but rather entered the U.S. Code in other pieces of legislation passed in the aftermath of 9-11. It's disturbing that apologists for the Act do not have the intellectual integrity to concede this much in the course of their arguments.

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??
12.18.2005 10:36pm
SnoozySuzy:
"how it has changed the issuing of FISA warrants"

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.
12.19.2005 11:07am