Nearly a decade ago, Senator Russ Feingold (D-WI) stood alone as the Senate's constitutional conscience. Casting the only dissenting vote against passage of the PATRIOT Act in 2001, he was powerless to stop an opportunistic power grab by neo-conservatives who had long sought, well before the tragedy of 9-11, to expand our government's reach into the lives of law-abiding Americans.
Today, the draconian authorities foisted on an unsuspecting public by the PATRIOT Act once again place the Constitution in the cross-hairs of a complacent Congress, acquiescing to another administration whose political agenda lies at conspicuous odds with its leader's oath to defend the Constitution.
An Administration Asleep at the Switch
Repeating the same story with different actors, we have gained little (and lost a great deal of) ground in the struggle for sanity since 9/11. The Constitution suffered a stunning bipartisan defeat in Congress last fall, and 2010 begins with an even worse landscape, conditioned by the surprising results of an election in Massachusetts, an underwear bomber whose implications have been contorted and completely confused by pundits and policy wonks, and an impending hijacking of the Senate by a Democratic leadership marching in lockstep with an administration actively undermining its own stated agenda and public promises to restore rights & liberties.
Over the past year, according to the conventional wisdom, the Obama administration has opted not to continue the Obama campaign's critique of the national security establishment, as a matter of political strategy: Rahm Emmanuel chose instead to focus on health care before the Constitution. But with the departure of White House Counsel Greg Craig and the administration's increasing solicitude to the right-wing, suggestions that our President might one day "come around" to respecting his campaign rhetoric appear increasingly unlikely.
Moreover, with Massachusetts' electoral results calling into question the delicate health care "compromise" with (or capitulation to) the right wing, President Obama appears to have fallen even further back on his already well-worn heels. Put simply, the administration appears both unwilling (when it had the chance), and now increasingly unable, to lend life to the President's campaign promises to restore the rule of law.
Yet assertively championing constitutionalism would be shrewd, as well as principled. Hundreds of cities and towns across the country (and a compelling handful of unholy bedfellows among the states) have already rejected the beltway consensus favoring domestic spying. Restoring constitutional rights is thus a political imperative: whichever of the major parties more assertively defends the populist principles at stake stands to siphon the support of significant portions of the other's base.
If neither party engages on that front, what began as the Bush administration's assault on long-established constitutional principles could become -- by virtue of its ratification and entrenchment by a Democratic administration -- a seemingly permanent fixture of American politics.
Spy Agencies Twisting the News
In the wake of the underwear bomber's failed attack in December, the intelligence establishment has redoubled its calls for greater surveillance authorities. The reaction to the news cycle was so forceful that (with a few notable exceptions) calls to reform domestic spying were silenced essentially overnight. But the reaction doesn't fit the facts.
First, more surveillance doesn't help security, but undermines it: the reason the underwear bomber wasn't flagged by our government's intricate maze of so-called "intelligence" agencies was because earlier reports of his dangerousness were lost in the haystack. There are simply too many false leads to separate the wheat from chaff, as close observers have noted for years. Even senior FBI officials have argued this point to the NSA, whose dragnet surveillance scheme has clogged the system with thousands of false reports.
Moreover, the underwear bomber proved that profiling focused on ethnic characteristics will always overlook potential threats, and thus can not meet our security needs. In sharp contrast, profiles based on behavior -- the cornerstone of Israel's vaunted airport security system -- are vastly more indicative of criminal predilections.
Despite its demonstrated ineffectiveness, however, right-wing hand-wringing over airport security has lent credibility to unapologetic profiling according to race. This is not only politically opportunistic, but also crass. And, appropriately, Americans from all walks of life are raising concerns.
But this year's attention to airport security overlooks a more troubling array of government programs, many of which remain largely secret. And while our nation distracts itself with the relatively insignificant inconvenience of airport screening, Congress readies itself to re-authorize the PATRIOT Act, a monumental -- and constitutionally offensive -- piece of legislation passed in the figurative night to allow intrusions and abuses far more profound than looking at your naked body.
Since the PATRIOT Act was enacted in 2001, government analysts have revealed systematic and recurring abuses and legal violations.
The Justice Department's Inspector General concluded -- in two separate investigations in 2006 and 2008 -- that the FBI repeatedly violated the law by routinely issuing unjustified requests for private financial, medical, and other (often third party) records in the form of National Security Letters (NSLs), often with unconstitutional gag orders compelling the disclosure of evidence while publicly silencing the recipients and prohibiting them from notifying the targets, Congress or the press. While the FBI reduced its reliance on NSLs in response to the initial criticism, the number of NSLs has since skyrocketed, returning to levels indicating widespread abuse.
Only a few weeks ago, the Inspector General released yet another set of findings documenting even worse FBI abuses, in the form of "exigent letters" promising NSLs that never came. Having already abused the extraordinary powers it had been granted, the FBI essentially claimed further unprecedented authorities and then abused those, too. Perhaps most disturbing, the unsupported assertion of such arbitrary power found comfort in a secret memo from the Obama Administration, which continues to disingenuously proclaim government transparency and civil liberties among its hallmarks.
The executive branch has come as close as it ever gets to pleading with Congress for regulation. And with three provisions of the controversial PATRIOT Act set to expire last year, the stage seemed set for the Obama administration to give life to its campaign promises to reign in domestic spying.
Yet, intimidated by the possibility of appearing weak on national security, the Obama administration teamed with Senate Republicans to derail long overdue reforms to the expiring PATRIOT authorities. Votes among unholy bedfellows on the Senate and House Judiciary Committees secured only cursory protections for accountability in the Senate bill, and slightly better protections in the House bill to stop the FBI from continuing to abuse NSLs.
Unable to secure passage of either bill before the end of the year, Congress ultimately opted to enact a short-term, 60 day temporary extension of the expiring provisions. Now, caught between a legislative rock and a constitutional hard place, Majority Leader Reid reportedly plans to reauthorize the entire set of PATRIOT provisions through a rider in a forthcoming jobs creation bill, without any of the (admittedly meager, but still procedurally significant) protections crafted by the House and Senate Judiciary Committees last year.
Senate Intelligence Committee member Ron Wyden (D-OR) recently noted that "[w]hile 'just trust us' has passed as informed national security debate in this country for eight years, it hasn't resulted in good national security policy....there is classified information that the public and the majority of my colleagues have not seen that...is essential to understanding the full scope of this issue."
But Wyden, and the 476 other Members of Congress who lack seats on the Judiciary Committees, are essentially being denied any opportunity to cast a vote on domestic spying. Even the 58 Senators and representatives on those committees are being simply ignored, despite their expertise, careful consideration of this issue, and transpartisan support for the reforms they agreed upon.
Rather than respond to documented abuses, by protecting the constitutional rights of law-abiding Americans -- or the growing mountain of false leads that continue to undermine security, by focusing law enforcement authorities on real threats -- Congress is instead bending over backwards to prostrate itself to the executive branch. And rather than assert the value of constitutional rights and their centrality to the nation we are all committed to defend, the White House caved to right-wing intimidation a long time ago.
Setting the Agenda to Build Our Own Alternatives
The federal policymaking process surrounding domestic surveillance is lawless. It lacks transparency, legislative accountability, and continuity from the prior debate, making a mockery of democracy while dragging our country further down the failed course of the Bush administration -- despite the electorate's resounding mandate in 2008 to reverse that course.
I struggle to concoct an analogy capturing the full tragedy of these events. But they're roughly similar to getting sold poison at the pharmacy (enacting the PATRIOT Act in 2001), paying for it on a credit card (deferring the hard political choices through sunset provisions), only to then discover that the pharmacist overcharged your card (NSL abuses documented in the IG's 2006 report), continued charging your card every month (recurring NSL abuses revealed in 2008), stole your mail and started charging your other credit cards every month (the FBI abuses exposed by the IG this January of "exigent letters" secretly authorized by the Obama administration), embezzled money from your bank savings account (the warrantless wiretapping scheme revealed in 2005), and then robbed the bank (the abuses of FISA-authorized programs revealed in 2009).
And the response by our congressional representatives would be like paying all the credit card bills (re-authorizing the PATRIOT Act in 2005), giving the pharmacist a blank check for the bank balance (amending FISA in 2008), and then accepting the pharmacist's demands for trust, buying pills to which you knew you were allergic (the 2008 FBI Guidelines) and then signing over the deed to your house (re-authorizing the PATRIOT Act in 2010 despite its continuing offenses to the First, Fourth, and Fifth Amendments to the U.S. Constitution) over your spouse's objections (the nominal protections sought by the House and Senate Judiciary Committees last fall).
With the White House and congressional leadership supporting unconstitutional abuses threatening the very fabric of our society, the Constitution appears to have few friends left in our nation's capital. That's one reason (among many) to take matters into your own hands and organize to raise rights above the federal floor in your town. Don't get angry. Get active.