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Will Congress Renew Patriot Provisions?

The NYT reports on the looming debate over reauthorizing portions of the Patriot Act.

Both the House and the Senate are set to hold their first committee hearings this week on whether to reauthorize three sections of the Patriot Act that expire at the end of this year. The provisions expanded the power of the F.B.I. to seize records and to eavesdrop on phone calls in the course of a counterterrorism investigation.

Laying down a marker ahead of those hearings, a group of senators who support greater privacy protections filed a bill on Thursday that would impose new safeguards on the Patriot Act while tightening restrictions on other surveillance policies. The measure is co-sponsored by nine Democrats and an independent.

Days before, the Obama administration called on Congress to reauthorize the three expiring Patriot Act provisions in a letter from Ronald Weich, assistant attorney general for legislative affairs. At the same time, he expressed a cautious open mind about imposing new surveillance restrictions as part of the legislative package.

"We are aware that members of Congress may propose modifications to provide additional protection for the privacy of law abiding Americans," Mr. Weich wrote, adding that "the administration is willing to consider such ideas, provided that they do not undermine the effectiveness of these important authorities."

Prediction: Congress will enact superficial reforms that do not impose any significant limitations on existing authorities.

PeteP:
I read that Feingold is trying to un-do 'tel-com immunity' also.
9.20.2009 9:57am
RMFDenver (mail):
And the far right (Bolton/Kristol) will huff and puff and claim that these cosmetic moves are worse than Munich and will result in the end of the world as we know it.
9.20.2009 10:02am
Steve:
Prediction: Orin will be the only Conspirator to analyze what the proposal actually says.
9.20.2009 10:22am
Daniel Chapman (mail):
And I'm sure you'll keep coming back and complaining about the analysis you get for free, Steve.
9.20.2009 10:27am
Cornellian (mail):
The way our political system works is that Obama will use the Patriot Act to eavesdrop on the National Rifle Association in the interests of national security. Republicans will be outraged by the privacy implications of the law they enacted and demand that Congress enact privacy safeguards, e.g. reporting to Congress whenever the law is used for surveillance of a US citizen. Obama will then sign these new safeguards into law, along with a signing statement saying he's free to ignore them. He will then never actually report anything to Congress and refuse to say whether he's actually eavesdropping on US citizens, while insisting he's applying the law consistent with his powers as commander in chief and consistent with the unitary executive. Republicans will be outraged at executive stonewalling.

Then once the Republicans take back the White House the above scenario will be repeated, but with the parties switching sides.

It's the way we live now.
9.20.2009 10:40am
itshissong:
I don't know if it is really worth making predictions that largely amount to this formulation:

"Prediction: Congress will pretend to make big changes that are worthwhile but really they will be small to meaningless."
9.20.2009 10:55am
Allan Walstad (mail):

Prediction: Congress will enact superficial reforms that do not impose any significant limitations on existing authorities.

No points for that one--too easy. Washington pols and bureaucrats have much more in common with each other than with the rest of us. And ratchets only work one way.
9.20.2009 11:02am
wm13:
I think Cornellian has pretty much nailed it. I would add: in each case, the appropriate blogo-hemisphere will express apocalyptic levels of outrage at the most tyrannical administration in American history.
9.20.2009 11:17am
Steve:
And I'm sure you'll keep coming back and complaining about the analysis you get for free, Steve.

Why would I complain about Orin's analysis? Did you wake up on the wrong side of the bed this morning or something?
9.20.2009 11:38am
Daniel Chapman (mail):
Wow. I'd think you've got to be pretending to be clueless, but why would anyone PRETEND to be stupid?
9.20.2009 12:16pm
RichH55:
It's all very Wiggum like:

"I am so sick of these corporations littering without a permit. It's not like those permits are hard to get."

The FISA Courts were basically a rubberstamp even from inception throughout the Clinton years. So why not do the extra paperwork (especially with the retroactive warrants) to get that air of legitimacy?

Just seems arrogant.
9.20.2009 12:36pm
RichH55:
Additionally it seems to me that there will be small issues taken care of (even the telecom immunity issue is small potatoes unless you are a telecom), since the issues were more of degree than anything.

There were going to be post 9/11 reforms, but the more relevant critics (so save your Michael Moore rants) wanted to make sure they were done right....rather than reasoning that didn't go further than: We need reforms post 9/11, these count as reforms, thus they must be good.

How major does the change need to be to count as major?
9.20.2009 12:40pm
SG:
The FISA Courts were basically a rubberstamp even from inception throughout the Clinton years. So why not do the extra paperwork (especially with the retroactive warrants) to get that air of legitimacy?

I can see why you'd infer that, but I don't think we know enough to be sure. It may be the case that only lock solid requests were brought before FISA, which is why it appeared to be a rubberstamp.

After 9/11, I'd be shocked if the threshhold at which surveillance was pursued wasn't greatly lowered. I wouldn't even be surprised if there was a desire for fishing expeditions (and I don't think in the immediate aftermath of 9/11, this would have been unpopular). But I wouldn't expect the FISA court to have lowered their standards.

I don't have any real knowledge, but this strikes me as the most likely scenario. I don't think it was arrogant so much as expedient - it's one thing to do what you need "to get the job done" while asserting that you don't need court approval , it would be something very different to do it in active defiance of a court. It's better to ask forgiveness than ask permission.
9.20.2009 12:57pm
RichH55:
Those are fair points...but they were lowering the standards as well (retroactive warrants, etc.)

Those retroactive warrants would have kept the percentages high, or they could have essentially "punted" on the ones that didn't yield anything material thus making the numbers look less rubberstamp like...

I don't actually think "fishing expeditions would have been popular" is a proper argument.

Under that logic you could have literally called the program "The Star Chamber" and it would have still passed.
9.20.2009 1:04pm
mnarayan:

And the far right (Bolton/Kristol) will huff and puff and claim that these cosmetic moves are worse than Munich and will result in the end of the world as we know it.


I will bet $100 Kristol will have no complaints about this move.
9.20.2009 1:26pm
John Moore (www):

The first such provision allows investigators to get "roving wiretap" court orders authorizing them to follow a target who switches phone numbers or phone companies, rather than having to apply for a new warrant each time.

Let's see if who wants to change this one. It is nothing more than an update to existing wiretapping law to keep up with technology.

As such, it provides a good test. Anyone, left or right, who objects to this is simply not serious about security.

The other two provisions require judicial warrants, and the latter one was never used. Again, let's see who complains.

As for the prediction that the right will hyperventilate over Patriot Act now that Obama is in power - nonsense.
9.20.2009 1:57pm
Oren:

I think Cornellian has pretty much nailed it. I would add: in each case, the appropriate blogo-hemisphere will express apocalyptic levels of outrage at the most tyrannical administration in American history.

Meanwhile, the other side's media outlet will hail the outraged grass-roots as patriotic while the other focuses on the most extreme elements within them. The opposite-blogosphere will thus dismiss the entire movement as derived from the nutty extreme while the same-side-blogosphere will dismiss the existence of the extreme nutcases entirely.

The Daily Show (9/14) did a hilarious piece comparing side-by-side FOX's coverage of the Bush=Hitler anti-War demonstrators and the Obama=Hitler anti-Health-Care-plan demonstrators. When the next GOP admin comes in, we should go back and compare MSNBCs coverage with that of the tea parties.

[ Of course, the writers of TDS make no bones about their liberal slant, which along with being funny, is redeeming. Conservative comedy (South Park) likewise. ]


Let's see if who wants to change this one. It is nothing more than an update to existing wiretapping law to keep up with technology.

My humble proposal:

(1) If Federal Agents have a reasonable belief that the target of a wiretap has changed phones/#, they can start monitoring the new number immediately.

(2) Within 120 hours of monitoring a new number, they shall file an updated affidavit with the issuing magistrate (or FISC), detailing their grounds for adding this new number. The affidavit may include evidence gathered on the new number (e.g. we switched numbers and we heard the guys voice).

(3) The magistrate (or FISC) shall approve of deny the addition of the new number based on the totality of the original and amendment affidavit.
9.20.2009 2:21pm
RichH55:
At John Moore

The first part of you analysis is pretty much dead on.

Second part? Not as much.

Aside from the general 180 degree flipping that both parties tend to do upon power shifts, the right has been particularly..let's say "sensitive"...to anything Obama has done (and yes I know this would have a strong congressional role, but that isn't exactly a mitigating factor to the folks who "worry")

If you think speaking to kids is "indoctrinating" them, even when you have the text of the speech beforehand, then what can you make out of a large bill that allows increased surveillance?

Kids example not on point enough? See the right's reaction to the mere suggestion that there was such a thing as right wing domestic terrorism that needed to be watched in any way, shape, or form.

There will only be two ways to react (sadly not even mutually exclusive): 1) Obama is after me (NRA posters apparently will be the vanguard here); 2) So I guess now that big bad Patriot Act isn't so big and bad now that the Dems are in power.
9.20.2009 2:26pm
RichH55:
At Oren:

Sounds good to me. Nice common sense approach with some oversight nonetheless.


Any way to define "good faith" though?
9.20.2009 2:30pm
Oren:


Any way to define "good faith" though?

I didn't use the term, so I see no reason to define it.
9.20.2009 7:12pm
RichH55:
I apologize Oren as I meant to say "reasonable" rather than good faith. Certainly guidelines might help, since differing reasonable people might have radically different views (more a critique of Yoo rather than the reasonable standard in general).

Certainly where you have another number to try and it winds up being your suspect you have a pretty easy case.

Though perhaps this work has already been done and there is "reasonableness" in this context already in the case law.
9.20.2009 8:29pm
John Moore (www):
@RichH55:

I still disagree. Yes, the right (and various other non-obamatrons) are hypersensitive to Obama's actions, but those actions are in huge areas that affect everyone (enormous deficits, government corruption, health care).

While the libertarians and some on the right have always been afraid of the Patriot act, I don't expect others on the right to change their stance unless the Obama administration abuses its powers for political reasons.

I doubt he will do that, just as I (correctly) never expected Bush to do that.

The biggest problem some of us have with it is that some provisions which should be precisely targeted at terrorism have been used for other, far less important purposes, such as enforcing drug laws. The law should be better targeted.
9.20.2009 11:00pm
PaddyL (mail):
I have no objection to proper utilization of Patriot Act. Obama will corrupt it use as a tool to advance his Orwellian agenda to convert our democratic republic into a Marxist oligarchy. He is Big Brother.
9.20.2009 11:03pm
RichH55:
@John Moore

Again, some fair points...but overall the things that the right (far right if you like?) has harped on with Obama is not hinged on all that much principle IMHO.

Again....What would "indoctrinating" the children or death panels fall under there? (I guess health care for death panels?) The death panels aren't particularly based on merit or principle. Birthers?

That's the bad assumption I think you are working under: That the protests will be based on the better angels out there, or even facts (rather than strawmen).

Merely producing a report (a government report isn't exactly unique) that noted there was (far) right wing domestic terror groups and that they shouldn't be ignored produced an uproar.

I could probably be convinced that this will go more down the "Our President was right after all!" path (and that isn't a tactic unique to the right by any means).

Then since this is volokh: Don't forget the market. If you are a Malkin, Beck, or the like, there isn't a ton of money to be made with nuisance. It's a poor incentive structure for reasonable debate.
9.20.2009 11:13pm
RichH55:
Sorry again. Meant nuance not nuisance. Insert Freudian slip comments here:
9.20.2009 11:17pm
John Moore (www):
I think the right won't get unhinged about The Patriot Act is because the right was in favor of it (for the most part) and has been defending it against lefties.

The other stuff you mention has caused a big fuss because the right is very, very distrustful of Obama - which I think is reasonable given the difference between his statements and reality in area after area. The fuss about right wing terrorist groups is partly that, and partly the fear the right has that this shows a bias towards ignoring the Islamist terrorists. Obviously, under an Obama regime, the potential for a right wing terrorist of the McVeigh variety rises. The idea that there will be right wing terrorist *groups*, however, is itself not hinged on reality.
9.21.2009 12:48am
Daniel Chapman (mail):
RichHSS: The text of the speech wasn't released until the sunday before he gave it. About the same time he backtracked on the "How can I help President Obama" workbooks were nixed. Most of the concern came well before that.

But then, I'm sure you already knew that.
9.21.2009 7:21am
RichH55:
Chapman and Moore:

The indoctrination chants and keeping kids out of school came both before AND after the text of the speech was released (indeed, unless your kid is the Terminator it is hard to keep them out of school prior to the changes)

Indeed, that's the point: The "distrust" of Obama is either way off the deep end or essentially ancilliary to whatever the issue purports to be (Moore gave me several broad classifications of where the "distrust" would be and seemingly it would encompass anything...as death panels are health care...Deficits, etc.)

So it doesn't matter about the likelihood of the risk, just that you could conjure it up (For example, you suggest that the changes made in the school speech was valid...thus it is the difference between indoctrination and a talk to kids - I would suggest that the indoctrination claims were always silly)

Again, there is a logic problem as to the right wing terror report too. This is but one government report, a subsection of policy at most, so how would it be mutually exclusive that Obama (or the relevant departments) could confront the right wing terror groups (fringe elements) and thus have to stop confronting Islamic terrorists?

You can't have an FBI agent working in Arkansas at the same time you have CIA and Special Forces working in Central Asia?

I guess this is my underlying point: I can certainly see why the right shouldn't protest changes to the Patriot Act for very good reasons (prior support, need, smart changes generally)...I just don't see that track record, so far, of reasonable disagreements/agreements.

I mean aside from the very reasonable disagreements that John Moore would point out generally: Health Care, Corruption, and Deficits. You get death panels, birthers, indoctrinating kids, "out to get us" via right wing terror reports, etc.

Heck, even in this discussion (not by people I have named)...Obama was called "Big Brother" and that it would be used to eavesdrop on the NRA.
9.21.2009 11:42am
rc:
PaddyL: "[Obama] is Big Brother."

Why do you have to bring race into it? :P
9.21.2009 11:45am
John Moore (www):

I mean aside from the very reasonable disagreements that John Moore would point out generally: Health Care, Corruption, and Deficits. You get death panels, birthers, indoctrinating kids, "out to get us" via right wing terror reports, etc.

A couple of points..

A lot of politics is about symbols and emotions- and that's what's so visible on the right today. That doesn't mean that there isn't seriousness underneath. When Palin turned loose the "death panels" meme, it was a really smart political act. It focused people on the threats to their future health care (and make no mistake, the threats are there) far better than a dispassionate argument.

Also, the current Democrat leadership and their allies in the media trigger strong reactions. I think it's a combination of arrogance, elitism, lying and outright plans (threats) to overturn everything in short order that causes such powerful reactions. The net result: not only the Medicare recipient rightly worried about loss of care, but also the loons of all varieties - including the birthers (to match the left's truthers who knew Bush did it).

Glenn Beck seems to be remarkably in tune with this - not, I think, out of calculation, but because it resonates with him. He is a bit of a conspiracy theorist (okay, maybe more than a bit), he is emotional, and he is smart enough to connect the dots (if not always in the right order :-).

I often am exposed to Beck as I sometimes use Fox News as "video wallpaper" when working on the computer. He's a fascinating guy, and definitely out towards the fringes.
9.22.2009 12:44am

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