In late September, during a Senate Judiciary Committee hearing, Sen. Al Franken of Minnesota made a great show of questioning whether the roving wiretap provisions of the PATRIOT Act were constitutional. He read the Fourth Amendment, which guards against unreasonable search and seizure, aloud to a stunned Assistant Attorney General David Kris. Franken noted that the amendment contains "pretty explicit language" about such intrusions and asked Kris whether he thought the roving wiretap provision fit that standard.
"This is surreal," Kris responded before going into a technical explanation of the legal justifications for roving wiretaps.
But then he votes for the bill, anyway:
Last week, the administration outmaneuvered most congressional efforts to strengthen civil-liberties protections in the PATRIOT Act reauthorization, inserted provisions in the Homeland Security appropriations bill that would prevent the release of torture photographs that are the subject of a pending FOIA request, and is now poised to sign a defense authorization bill that contains changes to the military commissions that fall short of what the administration itself said might be overturned by the appellate courts. While most news outlets were focused on the health-care debate and President Barack Obama's unexpected Nobel Prize win, the administration successfully foiled civil-liberties advocates' efforts to rein in Bush-era executive powers -- and with little resistance from Democrats. Franken, who had so thrilled liberals with his staunch defense of the Fourth Amendment back in September, ultimately ended up voting the PATRIOT Act reauthorization out of committee.
This, unfortunately, not something that distinguishes Senator Franken from the rest of his Democratic colleagues.
Only Senator Russ Feingold and a handful of others actually stood up to try to improve the civil liberties protections in the revised Patriot Act, but they were rebuffed by a bizarre coalition including Senators Diane Feinstein, Joe Lieberman, Jeff Sessions, and Lindsey Graham. Sessions admitted later that the amendments he put forth to strengthen the Federal government's surveillance powers had been requested by the Obama administration.
In the course of hearings, Obama Administration Attorney General Eric Holder played the same fear card that the Bush Administration used so successfully, essentially arguing that we can't afford strong civil rights protections in today's world:
On Oct. 6, Attorney General Holder called the alleged Zazi plot one of the most dangerous since 9/11, citing it as a reason to reauthorize the PATRIOT Act as soon as possible. "This wasn't merely an 'aspirational' plot with no chance of success," Holder told reporters at the Justice Department. "This plot was very serious and, had it not been disrupted, it could have resulted in the loss of American lives."
Holder's statement was a subtle knock at the prior administration, which Democrats often accused of inflating terrorism threats to justify civil-liberties abuses. But perhaps the most remarkable thing about Holder's statement was how similar it was to then-President George W. Bush declaring in 2006 that the PATRIOT Act had helped foil a plot allegedly concocted by Khalid Sheik Mohammed, the architect of the 9/11 attacks, targeting Los Angeles' Library Tower and that it should therefore be renewed.
"As the West Coast plot shows, in the war on terror, we face a relentless and determined enemy," Bush said.
Curiously--or perhaps not--the Attorney General did not explain (or was not asked) whether the provisions of Senator Feingold's JUSTICE Act would have prevented law enforcement from shutting down the Zazi plot.
Expecting President Obama to take seriously his campaign promises to repair the Constitutional damage done by the Bush Administration is not amenable to the give him time to get around to it argument. In point of fact, despite the overall attention given to the health insurance reform debate--or perhaps because of it--the administration has been going to court and slipping through Congress small provisions here and there which not only extend, but actually expand the damage done by Bushco.