The Corner

Re: Liber(al)tarianism, Obama, & the Patriot Act

Jonah, that’s all fair enough, but it’s important to keep in context how teeny this episode is. Obama is not coming out in support of “the” Patriot Act as we knew and debated it for several years, especially circa 2004–2006. Because we won that debate decisively, there are now only three provisions up for discussion — and they are only up for discussion because sunsets were put on them to give Leftists a fig-leaf to pretend they won something. The essence of the Patriot Act is not at issue.

Two of the provisions are completely uncontroversial: (a) Roving wiretaps have been used for eons by criminal investigators – all Patriot does is let national-security agents use them too, and you still have to get permission from the court; and (b) ”lone-wolf” surveillance was never opposed by anything but a fringe of privacy extremists: sensible people realize we have to be able to monitor someone who is obviously a terrorist even if the government hasn’t yet developed enough evidence to connect him to a known terrorist organization — even if that’s not intuitive, the Zacarias Moussaoui experience makes it easy to grasp.

The third provision was controversial only because the Left phonied up a controversy. It’s the “business records” provision. It is not meaningfully different from a federal prosecutor’s mundane power to issue grand-jury subpoenas in routine investigations, but the Left and the media called it the “library records” provision and stoked visions of John Ashcroft monitoring how many people checked Rules for Radicals out of their local library. Patriot, however, never targeted libraries any more than subpoenas do, the provision has never been used that way, and now its execution will be controlled by the Obama Justice Department.  The new DOJ answers to the demagogues who created the library kerfuffle and they know it is more likely to use the business records authority to hassle businesses than libraries.

It bears remembering that the Patriot Act debate took shape before the antiwar Left found its voice in 2004 as the war in Iraq got difficult. This was the early post-9/11 phase, when Democrats had their eyes on the 2004 and 2006 elections. The smarter Dems knew the party had to alter the impression that they were soft on terrorism. Remember? People like Eric Holder were even running around saying al-Qaeda had no right to Geneva Conventions protection. In the spirit of those times, a number of Democrats (under the leadership of John Podesta, who later shaped the Obama administration) joined a bipartisan working group of former government officials that I also worked on. The group recommended that all the then-pending Patriot Act provisions should be authorized. Holder and Podesta co-signed our letter to Congress.

In light of that track record, there was no way, politically speaking, that the Obama administration, and especially its Justice Department, could have opposed the reauthorization of these three Patriot provisions. There was no upside in it for them and tons of potential downside. The money-move was to sign off, call as little attention to it as possible, and move on. It looks like that’s what they’ve done.

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