Where'd the Patriot Act's Malcontents Go?

By Anthony Gregory, The Independent Institute
May. 26, 2011

It seems like only yesterday that a power-hungry president and administration, bent on starting preventive wars, shredding due process rights, stripping detainees of habeas corpus, and asserting executive supremacy in almost everything was trying to push the Patriot Act through an executive-friendly Senate and complacent House of Representatives. Members of his party were using procedural tricks to ram the bill through without the full deliberation it deserved. Leaders of the president’s party marginalized those who stood up in protest. Of course, this first happened in October 2001, but it has been happening all over again, although now the president is a Democrat and not a Republican.

Congress is on the verge of extending the Patriot Act for another few years. Most Republicans have always supported doing so, although President Obama wanted a longer extension than even they proposed.

Obama wasn’t always a big supporter of this Bush-era legislation that guts the Fourth Amendment among other quaint niceties. In 2003, he called the Act “shoddy and dangerous” and vowed as a Senator to vote against it. In 2006 he instead voted for a “compromise” that kept most of the Act in place.

Across the board, Obama has been a disaster on civil liberties, solidifying the Bush anti-terror state on warrantless wiretapping, detention policy, and surveillance; pushing for new federal controls of the internet; attacking financial privacy at every turn; and just generally aggrandizing the national police power. Without seeing the humor of it, many conservatives boast that now theat Obama is president he realizes how right Bush was about executive supremacy and violations of due process. Lord Acton said something about power corrupting that might explain the phenomenon. But surely, this man whom the conservatives rightly critique for his megalomaniacal power plays in the domestic economy would never champion broad presidential power in the war on terrorism for its own sake.

Yet what is more interesting than a politician’s predictable flip-flop is a cultural question: Where has all the opposition gone? During the Bush years, the Patriot Act was seen as a symbol of all that was wrong with a lawless and predatory administration. The left regarded it as the embodiment of the presidential overreach and big-brother tactics of the Republicans. There are still many who are somewhat critical of the Act, but where is the urgency and outrage?

Part of it can be explained in terms of pure partisanship and political priorities. Left-liberal opponents of Bush’s Patriot Act are so concerned with defending Obama, especially his domestic policy, that they have no time to notice much less loudly expose Obama’s many similarities to the last president on almost every war on terror issue.

There is also a more insidious cultural and ideological dynamic at play. Let us remember than in 2001 we were assured both that the Patriot Act was necessary to fight the war on terrorism -- that without its tools, our national police and intelligence forces would be impotent and uncoordinated -- and, paradoxically, that the Patriot Act did not effect any revolution in law enforcement practices and only empowered the feds to do what they were already doing in the drug war. Not only does this demonstrate the amazing capacity of common Americans to swallow discordant propaganda; it reminds us that the Patriot Act was rammed through quickly after years of desensitization to other violations of the Fourth Amendment and depredations on our civil liberties. If not for the drug war -- whose extraconstitutional measures were assumed in this line of argument to be completely acceptable -- Americans would have likely never been acclimated to nearly the degree of heavy-handed police measures that were already typical in the republic before 9/11. Matters have become much worse, but American culture had already been warped so as not to resemble its earlier, more Jeffersonian character that embraced a cynicism and reflexive distrust toward the national government.

Ten years after the Patriot Act first passed, Americans are simply used to it. It is a fixture of federal power, hardly any more controversial than Social Security, the Department of Education, or the Marines. Some of us remember how drastic a shift away from liberty and toward power it seemed a decade ago, and some of us still resent it. But it is now a thoroughly bipartisan element to the war on terror. It is accepted federal policy. It is almost as accepted as death or taxes, and certainly less feared. Americans also accept such propaganda as the line that the Patriot Act has never been abused, that no one innocent has been hurt by it. To the contrary, the very first man convicted under the Act was sentenced to eighteen months for incorrectly filing for a state business license before continuing with his money transmitting business. He was no “terrorist,” just a minor offender of a technical non-crime. The absurdities and injustices have only piled up since then. On the other hand, when has the government ever shown us how the Patriot Act protects us?

But aside from some journalists and a few odd politicians, no one notices as the federal government and country once again accept as routine what was a few years ago regarded as revolutionary. It is, after all, difficult to maintain the proper level of outrage when the government strips us of our freedom at such a dizzying speed and frequency. But the erosion of the Fourth Amendment, the national security letters, the roving wiretaps, the sneak and peak warrants, the weakening of FISA’s already permissive requirements, the invasive prohibition of carrying large sums of cash outside the country without permission, the enhanced police powers at the border, the snooping on financial, gun and other records, the redefinition of financial institutions to include a ludicrously large class of businesses -- these should be as offensive now as they ever were, even with the passing of time, the cascading of new political issues, and a fresh presidential poster boy heading up the questionable efforts against “terrorists” at the expense of our liberties.