Straining Gnats while We Swallow the PATRIOT Act

Originally published on my blog here.

In the middle of an invective against the hypocrisy of the pharisees of his day, Jesus famously charges that they “strain out a gnat but swallow a camel.”  Perhaps on no single issue is more camel swallowing occurring today than the matter of privacy and the PATRIOT Act.

Several Republican members of Congress have called on President Obama re-sign his reauthorization of the unconstitutional PATRIOT Act bill.  He originally signed it into law using an autopen, a machine that allows him to approve legislation remotely if he is not in Washington at the time it is placed on his desk.

Rep. Tom Graves of Georgia, leading the anti-autopen charge, contended that autopen use is disrespectful to the American people — and may itself be unconstitutional to boot.  It’s admirable, of course, that Rep. Graves (who voted no on the extension of this law) is attempting to halt or at least delay the continuation of the PATRIOT Act by hook or by crook.  In that sense, I respect his actions here; yet he is, I think, missing the larger picture.

The type of machine the president used to renew the law (when it was so clearly his intention to do so) is a gnat.  What the PATRIOT Act actually authorizes on a daily basis — that is a camel, and that is what we should be gagging back up as hard as possible.

Consider, for instance, the discovery by the Electronic Frontier Foundation in March of the gross (though thoroughly unsurprising) abuses of “the ‘John Doe’ roving wiretap provision, which allows blank-check wiretapping orders that don’t identify the suspect or the particular phone or Internet connections to be tapped.”  Using the authority of this provision, members of the FBI monitored the calls of small children for five days, despite those calls having no clear connection to any terrorist or criminal activity.  Indeed, the little kids subjected to this spying didn’t even speak the same language as the terrorists being targeted.

The worst part of this story, of course, is that it’s just one isolated thread in a tapestry of PATRIOT Act privacy abuses.  The act has “granted the FBI the right to come to your place of employment, demand your personal records and question your supervisors and fellow employees, all without notifying you; allowed the government access to your medical records, school records and practically every personal record about you; and allowed the government to secretly demand to see records of books or magazines you’ve checked out in any public library and Internet sites you’ve visited” — and our government amply takes advantage of all those options.   Creditable estimates of PATRIOT Act abuses run into the tens of thousands of occurrences from 2001 to 2008 along.

The Washington establishment’s reaction to this abuse has been minimal at best, and the version of the PATRIOT Act which the president’s autopen signed retained without modification the bill’s most flagrant violations of the Bill of Rights, including the roving wiretap described above.  Indeed, it seems to be the case that the PATRIOT Act is a free-for-all of irresponsibility and misappropriation of power as even Maryland Transport Administration police cite it as their new excuse for flashing their badges to stop pretty much any activity they feel like stopping — while the bill’s supposed terrorism-fighting measures are more often used to wage the failed drug war instead.

As constitutional lawyer Bruce Fein put it in his PATRIOT Act testimony before Congress, “Every citizen is born with the unalienable right to be left alone. Government is instituted to secure that right, not to cripple it.”  But that is exactly what the PATRIOT Act does.  And while possibly based in a noble sentiment, bothering over what pen the president used to re-approve the PATRIOT Act is nothing but gnat-straining.

Small, practical steps to dealing with a big problem are valuable.  This was amply demonstrated in Rand Paul’s epic battle against the PATRIOT Act this spring. However, stunts like calling on the president to use a real pen are neither small nor practical.  If Obama actually met these congressmen’s demands the PATRIOT Act will still be signed, which is the exact opposite of what we want.  Worse yet, distraction with this sort of project will, if anything, slow us from reaching our primary goal:  Repealing the entire law.

If the net is too full of gnats, we won’t be able to strain out any camels — and this is one camel we’ve been swallowing for far too long.

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