Assault in the dead of night (image: photomequickbooth/flickr)

Ten years ago, Congress enacted a draconian law with no transparency, regard for process, or even awareness of the profound erosion of constitutional rights the PATRIOT Act would entail. Congress did it again this holiday season, repeating its abdication of its constitutional role by authorizing, in the National Defense Authorization Act, indefinite military detention of even US citizens.

The NDAA, however, has older precursors then PATRIOT: the bill recalls shades of central Europe in the 1930s, long predating the pervasive surveillance enabled over the past decade. It also stands at the crux of several fundamental questions: it owes its genesis to the Obama Administration’s political cowardice and lawlessness in resigning executive accountability for torture. Finally, the NDAA presages the recurrence of torture, as well as the false legitimacy that it confers on a system designed to coerce confessions.

I’ll explain each of these concerns over a 3-part series formatted as an FAQ.

Q: Does the NDAA Authorize Political Repression? A: It Certainly Could.

Ignore the self-assured claims by the bill’s apologists downplaying what it means. Concerns about the NDAA’s potential (dare I say predictable?) abuse stem from beyond the four corners of the NDAA itself.

The key is the PATRIOT Act’s extension of “material support for terrorism” to include associational and speech crimes, even where the defendants had no intention of supporting violence. In Humanitarian Law Project v. Holder (2010), the Supreme Court denied a First Amendment defense to the terror prosecution of a charity whose offence entailed funding workshops encouraging non-violence in Turkey (in the same Term that the Supreme Court held that corporations do enjoy a First Amendment right to buy elections). Under the Humanitarian Law Project ruling, as I’ve written before:

The PATRIOT Act’s material support provisions allow our government to criminalize speech and repress political dissent, a frontal assault on the First Amendment. And with material support cases grounded in associational guilt, the First Amendment is also eroding from its figurative sides.

The NDAA would expand those assaults by eliminating the need to prosecute. In the hands of a president, attorney general, US attorney, or even, potentially, state or local prosecutors willing to use their powers for political purposes, it offers the legal authority for severe repression.

Ironically, groups most likely at risk for military detention represent diverse interests: the Occupy movement has been addressed as a terror threat by London police and various critics in the United States, and Tea Party groups have raised concerns about counterterrorism scrutiny of militia movements [and Ron Paul supporters].

If Occupy and Tea Party groups are treated as terrorists, does that render them among the “associated forces” of groups “engaged in hostilities against the United States” for whom the NDAA authorizes military detention without trial? Just to be clear: no one has a good answer here, which is precisely the problem.  [cont'd.]

Even within the four corners of the NDAA itself (here’s the full text of the bill), section 1031(b)(2) includes among “covered persons” subject to potential military detention “any person who has committed a belligerent act….” What, exactly, is a belligerent act? “Hostile” and “aggressive” are synonyms, and while the term has an established (though not entirely defined) meaning in the context of international war, its precise meaning in the context of the NDAA remains unspecified.

Two weeks ago, several Occupy sites on the west coast shut down a series of ports in coordinated acts of non-violent direct action. Were a foreign country to blockade our ports, it would certainly constitute a “belligerent act” under the laws of war.

But what if it’s US citizens who conduct the blockade? What’s the answer then? That’s the point: no one knows. Any assurances that future officials will not apply these dangerously overbroad terms to US citizens is grounded in conjecture. Wishful thinking is a poor substitute for the thoughtful deliberation Congress should undertake when toying with powers of such potentially sweeping scope.

Apologists for the NDAA forget that laws remain fixed until changed, beyond the terms of particular officials who write them. And the ambiguity created by the law could be construed by future Presidents (or their advisors) to confer dramatic, sweeping powers to detain US citizens without a right to trial or Due Process. In the wrong hands, it could be used as a powerful tool to suppress dissent, with predictably catastrophic consequences.

Finally, provisions seeming to limit the NDAA’s potential abusiveness towards US citizens should offer little comfort. For example, Section 1031(d) includes a proviso that “[n]othing in this section is intended to limit or expand the authority of the President….” But presidents have already asserted the authority to detain US civilians in military custory. Just ask Jose Padilla. Another red herring emerges in section 1032(b)(1): “The requirement to detain a person in military custody under this section does not extend to citizens of the United States.” That’s a welcome change from earlier versions of the NDAA, but it doesn’t constrain the discretionary authority to detain US citizens created separately (by section 1031).

So believe the hype: the NDAA’s detention provisions represent a frontal assault on the Bill of Rights. They are noxious now. They will be worse in the future. We will live to regret ever even considering this law, and our leaders will be judged harshly for allowing it to become law without even a single congressional hearing and over the objections of concerned Americans all over the country.

[More soon in Parts II and III of this series....]

(photo: ScruffyDan and Breanne)

Amidst the inevitable 9-11 retrospectives, I feel like only the Los Angeles Times is putting the past ten years in the proper perspective. Because the longest-lasting legacy of the 9-11 attacks is clearly the terror industry it spawned. Over the weekend the LAT looked at the hundreds of billions of dollars being spent on absurd “security” projects, filling the pockets of contractors, and for little benefit:

“The number of people worldwide who are killed by Muslim-type terrorists, Al Qaeda wannabes, is maybe a few hundred outside of war zones. It’s basically the same number of people who die drowning in the bathtub each year,” said John Mueller, an Ohio State University professor who has written extensively about the balance between threat and expenditures in fighting terrorism.

Today’s entry from the LAT is even better, and something I feel we pay too little attention to. In the decade since 9-11, this has become a surveillance state, and the government collects enormous amounts of data on every man, woman and child in America, in all likelihood too much to process. We all know about this, but it’s important to see all that surveillance together in one package:

…the secret domestic intelligence gathering [...] is one of the most significant legacies of Sept. 11. U.S. law enforcement and intelligence agencies now collect, store and analyze vast quantities of digital data produced by law-abiding Americans. The data mining receives limited congressional oversight, rare judicial review and almost no public scrutiny.

Thanks to new laws and technologies, authorities track and eavesdrop on Americans as they never could before, hauling in billions of bank records, travel receipts and other information. In several cases, they have wiretapped conversations between lawyers and defendants, challenging the legal principle that attorney-client communication is inviolate.

[cont'd.]

Advocates say the expanded surveillance has helped eliminate vulnerabilities identified after the Sept. 11 attacks. Some critics, unconvinced, say the snooping undermines privacy and civil liberties and leads inevitably to abuse. They argue that the new systems have weakened security by burying investigators in irrelevant information.

“We are caught in the middle of a perfect storm in which every thought we communicate, every step we take, every transaction we enter into is captured in digital data and is subject to government collection,” said Fred H. Cate, a professor at the Indiana University Maurer School of Law who has written extensively on privacy and security.

We had one moment where this was subject to any debate at all, during the fight over the FISA amnesty legislation. But that was really about a small portion of the total data collection. Most of the surveillance remains a secret. Ron Wyden and Mark Udall tried to tease out a little more this summer, when they tried to get the intelligence community to admit to how they were misinterpreting the Patriot Act to allow for more data collection. But that never went anywhere. From NSA surveillance to national security letters to the AT&T room on Folsom Street in San Francisco, what bits and pieces we do know about point to a giant network Hoovering up every piece of information you let out into the world digitally.

I appreciate the LA Times highlighting this legacy. Nobody really questions why we’ve deprived American civil liberties to this degree, to protect the homeland from a threat that mirrors the threat posed by full bathtubs. Read the whole story for yourself. This has been an inexorable slide downward for ten years, and it shows no sign whatsoever of letting up.

Chuck Todd tweeted last night:

WH announced that POTUS ordered the Patriot Act renewal to be signed by the “autopen”; so, yes, it was robosigned

Reason given for robosigning via autopen: Patriot Act expires midnight tonight, so as to not have gap, either robosigned or flown to him

Now, Todd was writing in the early hours of morning, French time, while watching hoops (I believe he’s a Heat fan). So this interpretation may be a product of his inattention/fatigue.

Nevertheless, it’s interesting because Todd improperly called signing the PATRIOT Act with an autopen “robosigning.” They’re not actually the same thing. Robosigning as currently used is when a poorly paid live person signs a name to a document (though maybe not the one whose name gets signed), claiming to attest to the accuracy of documents without actually doing so. By ordering that PATRIOT be signed using his autopen, Obama gave the law the full weight of law, yet without actually signing the document.

As I joked last night, they’re going to have to add a couple of lines to Schoolhouse Rock to explain to children the magic of the President’s autopen:

I’m just a bill, yes I’m only a bill, thanks to the President losing his auto-quill.

I’m off to the White House to wait in a line for the President’s autosign.

So Todd was somewhat inaccurate in calling this robosigning. But in a funny way that accorded the PATRIOT signing the same illegitimacy and fraud of foreclosure fraud.

That said, Todd then parroted the Administration fib about why “robosigning” was necessary: because the PATRIOT authorities extended yesterday expired at midnight, so the only way to get the bill signed into law was with Obama’s autopen (or a whole lot of wasted jet fuel, and even that wouldn’t have worked in time).

But that’s not right. Because it ignores the way Congress did nothing with the PATRIOT extensions in the existing extension period, the way those defending the status quo preferred letting time run out to a real debate on these authorities, the way a long-term extension was rammed through at the last moment.

The way to avoid the fraudulent appearance of auto-signing the PATRIOT act, of course, would have been to have an actual debate about it. But Harry Reid and John Boehner and Obama and the other defenders of the status quo couldn’t have that!

"Why does Mr. O hate our civil liberties?" (photo courtesy of Jim White)

Pouting Baby is talking to us again. — JW

The old men in the Sin-it did a bad thing again today. They have been taking away important rights from regular people for almost ten years now. Right after the 9-11 attacks, Little Georgie B talked the old men into writing the PATRIOT Act. That is a really bad law that takes away rights that the people who started the United States were really smart to put into the first rules they wrote. Today, there was a chance to make parts of the PATRIOT Act better, but the old men wouldn’t do it.

Senator Pat L. said this in an email to Mr. Jim and a lot of other people:

The Senate just voted to extend the PATRIOT Act for another four years. I joined 22 colleagues in opposition to the extension. Today’s vote represents a missed opportunity to improve the PATRIOT Act and ensure it protects the constitutional rights of the American people. The extension bill offers no reforms. It offers no recognition of the government’s responsibility to defend not just our national security, but our civil liberties too.

As the Washington Post noted today, the extension legislation should have included the oversight and auditing requirements that I proposed and a bipartisan majority of the Senate Judiciary Committee approved. The omission of these important provisions in the Leahy Amendment in the final bill prompted my “No” vote today.

Senator Pat L. must be wondering if Hapless Harry is really on the same team. Hapless Harry wouldn’t even let the old men vote on Senator Pat L.’s improvements to the PATRIOT Act. Even Aqua Buddha guy thinks these changes need to be made:

Senate Judiciary Committee Chairman Patrick Leahy, a liberal Democrat, and Republican Senator Rand Paul, a favorite of the conservative Tea Party movement, together offered steps to bolster oversight of the Patriot Act and increase civil-liberty protections.

These proposed changes cleared the Judiciary Committee, but Leahy and Paul were unable to bring them up for a vote by the full Senate.

I think Hapless Harry didn’t let the old men vote on Senator Pat L.’s changes because he was doing what Mr. O wants:

President Barack Obama is traveling in Europe. White House spokesman Nick Shapiro said that he was prepared to use “the auto pen to sign” the bill quickly into law.

Why does Mr. O hate our civil liberties?

I’m beginning to think that he’s not Mr. O any more but is Mr. Zero.

Sen. Ron Wyden (D-OR)

As I’ve been reporting, Ron Wyden and Mark Udall unsuccessfully tried to get the Senate to require the government to reveal how it interprets the PATRIOT Act. And since both have made it clear that Section 215 is one of the concerns, I wanted to look at the amendment they’ve proposed to fix Section 215. They proposed to replace this language:

(2) shall include—

(A) a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, such things being presumptively relevant to an authorized investigation if the applicant shows in the statement of the facts that they pertain to—

(i) a foreign power or an agent of a foreign power;

(ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or

(iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation; and

(B) an enumeration of the minimization procedures adopted by the Attorney General under subsection (g) that are applicable to the retention and dissemination by the Federal Bureau of Investigation of any tangible things to be made available to the Federal Bureau of Investigation based on the order requested in such application.

(2) shall include–

(A) a statement of facts showing that there are reasonable grounds to believe that the records or other things sought–

(i) are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities; and

(ii)(I) pertain to a foreign power or an agent of a foreign power;

(II) are relevant to the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or

(III) pertain to an individual in contact with, or known to, a suspected agent of a foreign power; and

(B) an enumeration of the minimization procedures adopted by the Attorney General under subsection (g) that are applicable to the retention and dissemination by the Federal Bureau of Investigation of any tangible things to be made available to the Federal Bureau of Investigation based on the order requested in such application.”.

This actually has become a perennial suggested change, one the Administration has been rejecting, in general, since 2009.

What the existing law does, through magic of grammatical obfuscation, is eliminate the requirement that Section 215 have anything to do with an actual investigation of suspected terrorists (or alleged spies like Julian Assange). It’s just easier (“presumptively relevant”) to use Section 215 with such people.

But all of that means the government can use Section 215 to get tangible things to protect against international terrorism. The government might only have to argue that it needs a database of everyone’s cell phone geolocation so when they look for terrorists or WikiLeaks supporters, they’ve got that all on file already.

Wyden and Udall are trying to swap out that language to require that the information both be relevant to an investigation and be tied to some suspected terrorist (or Julian Assange). The magic of “and.”

But of course that would make Section 215 useless for bulk collection, which is why this Amendment, after some fear-mongering, always gets defeated.

Because the United States of America, under the guise of fighting terrorists, has to consistently lie to its citizens so it can create massive databases on completely innocent people available for any searches the government might want to do, whether those searches have to do with terrorism or not.

And they call all this lying? The PATRIOT Act.

Sen. Rand Paul (R-KY)

It appears that Rand Paul has reached some kind of deal on his insistence to get votes for his amendments to the Patriot Act. There will now be votes on the amendments, with a likely 60-vote threshold. But the expectation is that the amendments will fail, and final passage will be secured Thursday. That will be followed by a quick vote in the House, and then a flight of the bill to Europe so President Obama can sign it before a midnight deadline when the three provisions of the measure would expire. And you said Congress can never be efficient. They can when motivated!

An agreement to hold a test vote early Thursday was the first progress all week toward resolving an impasse between Senate Majority Leader Harry Reid and tea party favorite Rand Paul, R-Ky., before three provisions of the act expire at midnight Thursday. Just before he closed the Senate on Wednesday night, Reid said there likely would be votes on amendments to the extension.

That could go a long way toward meeting Paul’s demand that Reid make good on a promise earlier this year to hold a full debate on proposed changes to the post-9/11 law, which empowers the government to find terrorists on American soil. Paul and other civil libertarians of both parties say the Patriot Act should be reconsidered or repealed outright because it risks infringing free speech and guarantees against unreasonable searches and seizures.

I appreciate that the AP story sets the record straight, that the rampant fearmongering over the expiration date is a crock, because an expiration would only impact new investigations, and that wiretaps or record requests under the old law would get grandfathered in. Furthermore, these provisions are used sparingly. According to one Justice Department official, the “lone wolf” authority has never been used.

However, sparing use doesn’t mean that these activities which deprive civil liberties should continue to be used without some kind of minimization procedures. And that’s to say nothing of the secret Patriot Act – the different interpretation of the law that allows for a mass dragnet of private information – which members of the Senate Intelligence Committee seem to know quite a lot about. One of them, Mark Udall (D-CO), told the Durango Herald that “the laws that authorize (sources and methods) should not be kept secret from the American people.”

Udall and Ron Wyden just want to get this in the public record. But of course, our secretive surveillance state government wants to keep that information to themselves. And the few stragglers defending civil liberties and the Constitution in Congress have run out the string on their efforts to hold things up. Once again, the Patriot Act is poised to pass, with next to no debate and no serious effort to reform the law, 10 years after 9/11, one month after the death of Osama bin Laden.

Provisions slated to expire include: the “roving wiretap provision,” which permits government to obtain intelligence surveillance orders without identifying the person or the facility being tapped (Section 206 of the Act); the “Lone Wolf” provision, which permits intelligence agencies to survey non-US persons not affiliated with a foreign organization (Section 6001 of the Act); and Section 215, which grants government authorization to obtain “any tangible thing” relevant to a terrorism investigation, even if there is no evidence the “thing” pertains to the terrorist or terrorist activity under investigation.

One senator, Sen. Rand Paul (R-KY), who would like to “sunset the entire PATRIOT Act and protect American civil liberties,” delivered a speech on the Senate floor in defense of freedom and privacy in America.

What the PATRIOT Act has done, explained Paul, is “taken away some of the protections of the Fourth Amendment.” Under the Fourth Amendment, the government must “name the person and place to be searched.” Those protections are gone.

No longer does government need to have “probable cause.” As Paul stated, the Act has taken away those rights and made it so if it’s “relevant” or they think the search or seizure is related to the investigation authorities can conduct searches and seizures.

Paul raised the issue of national security letters (NSLs), something that candidate Barack Obama opposed. They allow the FBI to write warrants without review by a judge, Paul stated. This throws off our nation’s system of checks and balances.

“Do we want a government that looks at our records and is finding out what our reading habits are?” asked Paul. “One of the provisions apply to library records. Do you want the government to find out what you’re reading at the library?”  [cont'd.]

Additionally, Paul asked, “We now have a president that wants to know where you contributed before you do work for the government. Do we want that kind of all-encompassing government that is looking at every record from top to bottom and invading our privacy?”

Defenders of the PATRIOT Act argue these authoritarian set of powers granted to government are needed to fight the “war on terror.” Paul dismantled this claim in his speech:

You know, we — we looked at — I think so far they say we have looked at 28 million electronic records. We have looked at 1,600,000 text messages, and we have 800,000 hours of audio. We have so much audio that they can’t even listen to it all. Twenty-five percent what they have recorded of your phone conversations is not listened to because they don’t even have time to listen to it.

My point would be that we’re eavesdropping on so many people that it could be that we are missing out and not targeting. It’s just like the airports. Every one of you is being searched in the airport and you’re not terrorists and you’re no threat to our country.

Why are we not looking for the people who would attack us and spending time on those people? Why do we not go to a judge and say this person we suspect of dealing with this terrorist group, will you give us a warrant? Why don’t we have those steps?

Paul’s speech wasn’t anything one could call radical except for the fact that only a handful of senators had the guts to speak on the extension of the PATRIOT Act. Out of fifty-one Democrats in the Senate, only four voted “no” and stood with Paul. Those Democrats were Sen. Max Baucus and Sen. Jon Tester, both from Montana, Mark Begich of Alaska and Jeff Merkley of Oregon. Independent Bernie Sanders voted “no” and so did two Republicans, Sen. Dean Heller of Nevada and Lisa Murkowski of Alaska.

Why are there so few Democrats taking issue with the idea that government should be able to violate the Fourth Amendment to fight terrorism when that is not the case? Why is there so little push back from liberals or progressives to put an end to the extraordinary assault on civil liberties that the Bush Administration escalated and the Obama Administration has done little to bring to an end?

Liberals see Paul’s name and point out that he believes life begins at conception, opposes federal abortion funding, would like to see federal spending growth limited to the per-capita inflation rate, supports stripping the Environmental Protection Agency of all powers to regulate greenhouse emissions, supports a repeal of health reform, supports a ban homosexuals in the military, favors the privatization of Social Security, or opposes giving illegal immigrants a path to citizenship. But, if there is no liberal or progressive push in the Legislative Branch to sunset the Patriot Act, who are those who give a damn about civil liberties to support?

Gone from the Senate is Russ Feingold, the only Democrat who voted against the Patriot Act when it first came up for a vote in the Senate. Now, when there is a push to extend Bush Administration policies like the PATRIOT Act or moves to give the Transportation Security Administration (TSA) the power to give pat-downs and do body scans in airports, libertarians are the only crowd the country hears defending civil liberties.

President Obama no longer appears to have any problem with any parts of the PATRIOT Act. So, liberals, who fully understand why people like Paul are justified in opposing the PATRIOT Act, cower and take cues from the Obama Administration. They fall in line and allow violations of basic civil liberties to be perpetrated. They take at face value the claim that the government “needs this authority.”

Under President Bush, liberals would never have been as silent as they are now. There would have been rancorous opposition especially in the blogosphere to extending PATRIOT Act provisions. Liberal talk radio and MSNBC would be talking about the government’s push to maintain extraordinary powers. But, for liberal activists, bloggers, pundits, and politicians, Obama cannot be hampered by any campaigns to defend democratic society, which might make it difficult for him to run for re-election.

Liberals began the Obama presidency committed to making Obama do it—whatever they thought needed to be fixed now that President Bush was gone. They had some kind of a vision. Now, they tinker around the edges and ask for minuscule reform that will not upset the balance (or gross imbalance) of power in the country. They ask for changes that have no monetary impact on the corporatist elements of the United States, which make money off of subverting democracy to fight the “war on terror.” When their voices are most needed, they say nothing and do nothing.

Liberals contend that people must cut Obama some slack. Meanwhile, the imperial presidency expands.

Watch Sen. Paul say what liberals or progressives should be saying.

Update 1

Rand Paul has proposed amendments to the extension of the PATRIOT Act that would address some of its most totalitarian aspects. Salon.com’s Glenn Greenwald notes in a post how Paul’s move to amend the extension has led to Democratic Party bullying from leaders like Sen. Dianne Feinstein (an ardent supporter of prosecuting Julian Assange under the Espionage Act):

Sen. Paul announced that he was considering using delaying tactics to hold up passage of the bill in order to extract some reforms (including ones he is co-sponsoring with the Democrats’ Judiciary Committee Chairman Sen. Leahy, who — despite voicing “concerns” about the bill — voted for cloture). Paul’s announcement of his delaying intentions provoked this fear-mongering, Terrorism-exploiting, bullying threat from the Democrats’ Senate Intelligence Committee Chair, Dianne Feinstein:

“I think it would be a huge mistake,” Feinstein told reporters. “If somebody wants to take on their shoulders not having provisions in place which are necessary to protect the United States at this time, that’s a big, big weight to bear.”

In other words: Paul and the other dissenting Senators better give up their objections and submit to quick Patriot Act passageor else they’ll have blood on their hands from the Terrorist attack they will cause. That, of course, was the classic Bush/Cheney tactic for years to pressure Democrats into supporting every civil-liberties-destroying measure the Bush White House demanded (including, of course, the original Patriot Act itself), and now we have the Democrats — ensconced in power — using it just as brazenly and shamelessly (recall how Bush’s DNI, Michael McConnell, warned Congressional Democrats in 2007 that unless they quickly passed without changes the new FISA bill the Bush White House was demanding, a Terrorist attack would likely occur at the Congress in a matter of “days, not weeks”; McConnell then told The New Yorker: “If we don’t update FISA, the nation is significantly at risk”). Feinstein learned well.

Paul appears to believe the Senate should be a place for open public debate. In trying to challenge Obama on the Libya war and the Obama Administration’s violation of the War Powers Act, Paul told Anderson Cooper, “It’s hard for me to get the floor unless I somehow sneak on the floor when no one’s looking to try to get a vote. Why would we not want to debate great Constitutional questions? When I ran for office, that’s what I thought – there will be great and momentous debates on the floor. We don’t have any because they prevent the debates from ever even beginning.”

It’s people like Sen. Paul, Sen. Bernie Sanders, former Sen. Russ Feingold, and representatives in the House like Rep. Dennis Kucinich and Rep. Ron Paul, who both Democrats and Republicans violate rules and guidelines in Congress to ensure real debate on issues never happens.

(photo: chrisinplymouth)

Now, ten years after 9/11, with Osama bin Laden dead, in a broad bipartisan vote, the United States Senate moved forward with another extension of the “temporary” Patriot Act. The vote was 74-8. Both the support and the very limited opposition to this extension were near-even slits along party lines; true bipartisan efforts.

As a result, voters who strongly oppose the Patriot Act must equally blame both major parties for this vote. But of course, when you have only two viable parties and equally blame both parties, the net electoral effect is a total wash. By working together, they totally insulate their actions on this highly contentious issue from almost any electoral repercussions.

Bipartisan action’s ability to destroy basic electoral accountability is what our political leaders love about it. It was Senate Minority Leader Mitch McConnell that admitted he wanted bipartisan support for unpopular cuts to entitlements because “When you do something together, the result is that it’s not usable in the election.”

The often praised “bipartisanship” is rarely ever the product of both parties coming together around what the people want, and almost always about using each other as cover to avoid electoral consequences for voting in opposition to the will of the electorate.

As I noted yesterday, the Senate passed cloture, by a 74-8 margin, on the motion to proceed for a four-year extension of key provisions of the Patriot Act. Final passage is expected Wednesday, so for a seminal civil liberties issue that has been in place nearly ten years, we will see essentially one day of debate in the Senate. As Glenn Greenwald points out, there is still bipartisanship in Washington when something like depriving civil liberties in the name of Terror has to get done. We may have killed Osama bin Laden, but we have yet to slay the Boogeyman.

The eight votes against the motion to proceed were Jeff Merkley, Mark Begich, Max Baucus, and John Tester, and GOP Senators Lisa Murkowski, Rand Paul, and Dean Heller. Mark Udall, who sent out a petition on reforming the Patriot Act just yesterday, voted yes on the motion to proceed. So did Senate Judiciary Committee chair Patrick Leahy, who consistently has sought reforms, however minor. However, Leahy and Rand Paul are teaming up to try and add some reforms.

The Leahy-Paul amendment introduced by the Kentucky Republican and the Vermont Democrat would have National Security Letters expire on Dec. 31, 2013. It also requires the Justice Department inspector general to audit the issuance of NSL letters and expands public reporting on the use of such letters under the Foreign Intelligence Surveillance Act.

“We were so frightened after 9/11 that we readily gave up these freedoms,” Paul said. “Not only would I let these expire, but I think we should sunset the entire PATRIOT Act.”

“You can be opposed to terrorists … but we can do it with a process that protects the innocent,” Paul said.

These really are the bare minimum reforms. But all that this minority of opponents has going for them is time. These three provisions expire on Friday, and Senators like Paul could hold up passage for some time by forcing all post-cloture time to be used. This is basically his plan, and establishment, fear-worshipping Senators like Dianne Feinstein warned him about blood on his hands. . . [cont'd.]:

Freshman Sen. Rand Paul (R-Ky.), a vocal critic of the counter-terrorism surveillance law, threatened Monday to “drag out” the process if Reid fails to hold votes on some of the nine amendments Paul introduced or co-sponsored on Monday. Paul, a libertarian-minded tea-party senator, noted that Reid had promised earlier this year to set aside a week’s worth of debate on the bill and allow votes on amendments.

“We’re not going to get the week, but we’re working on still trying to get a discussion and amendments to the Patriot Act. …” Paul told reporters just off the Senate floor. “We’ll just have to wait and see.” [...]

Sen. Dianne Feinstein (D-Calif.), the chairwoman of the Senate Select Committee on Intelligence, said “it remains to be seen” how Senate leaders will handle Paul’s amendments. But she warned against any political maneuvering that would slow down or derail the bill, which grants a four-year extension to key Patriot Act provisions.

“I think it would be a huge mistake,” Feinstein told reporters. If somebody wants to take on their shoulders not having provisions in place which are necessary to protect the United States at this time, that’s a big, big weight to bear.”

As Glenn notes, that’s truly an ugly response, the kind of establishment bullying we’ve seen for the last decade on measures of “national security.” It’s come from both parties, and anyone who dares not get with the program gets accused of helping The Terrorists.

At best, Paul and Leahy could drag out debate until Friday, the day that these provisions expire. Clearly they don’t have the votes to do much else. But that does start to run out the clock on passage. So we’ll see if they get their votes.

(graphic: Dr John 2005)

The Senate will vote later today on a motion to proceed to S.1038 which would extend three expiring provisions of the Patriot Act for four years, with almost no debate. As David Waldman notes, this is the third cloture vote on a motion to proceed in the last four legislative days in the Senate, showing that the “gentlemen’s agreement” to no longer filibuster the motion to proceed is dead and buried. But in this case, those inclined to vote against cloture actually want a real debate on these expiring provisions. Here’s Sen. Jeff Merkley (D-OR):

Senator Jeff Merkley says he was very concerned when he heard Thursday Senate leaders would move to close debate Monday on a package extending three Patriot Act rules.

Jeff Merkley: “I think it’s outrageous that there’s a proposal for a four-year extension in which the intention is to have no significant debate on the floor of the Senate, and no opportunity for amendments.” [...]

Merkley says he isn’t sure if the extensions will pass, but notes some of his colleagues sounded unhappy about the parliamentary move used to forestall more debate.

Jeff Merkley: “ There is some chance that reaction may be strong enough to change that and turn this into a real debate. Leadership may say we have other things to get to by next Friday. My reaction is we’ve had plenty of time to have a thorough debate on the floor.”

There are three provisions at issue. One, roving wiretaps that allow broad electronic surveillance from the FBI on any phone line or communications device. Two, the ability to access business, medical or virtually all other records of any suspect, regardless of the relationship to terrorism. Three, the “lone wolf” provision to allow surveillance of people with no ties to a terrorist group. Earlier this year, the Congress extended these provisions for 90 days. That expires on Friday. [cont'd.]

In addition to Merkley, Sen. Mark Udall (D-CO) opposes the quick reauthorization without debate. He sent an email to his supporters asking for them to sign a petition calling for the reform of the Patriot Act.

Benjamin Franklin once said that any society that would give up essential liberties to pursue security deserves neither and will lose both. Those words ring true today [...]

But while many of the PATRIOT Act’s provisions — which I support — have made our nation safer since the devastating terrorist attacks of 9/11, there are three provisions that fail to strike the right balance between keeping us safe while protecting the privacy rights of Coloradans. Instead, these three provisions have been far too susceptible to abuse by the federal government, even in the name of keeping us safe from terrorism [...]

These three provisions are troubling because they are ripe for abuses that involve expansive government surveillance of innocent people, even though common sense fixes and protections exist if only we were allowed to debate them.

Congress has approved the Patriot Act multiple times without any material statutory improvements. Udall cites “what I’ve learned from my Senate committee service” in saying that these provisions reach too far into the lives of private citizens. Keep in mind that he’s on the Senate Intelligence Committee.

The House may end up the tougher lift for the extension, because of dozens of Republicans who previously voted against a longer-term extension. Despite the objections of Merkley, Udall and others, the Senate is likely to at least advance on the motion to proceed today. This would set them up for final passage Wednesday, giving the House just 48 hours to get their version of the bill done.

UPDATE: The Senate passed cloture 74-8, so they’ll proceed to the bill. Final passage is expected Wednesday.