Day By Day

Saturday, December 17, 2005

The Parties of Fear

So the Senate failed to override a filibuster and extend some of the provisions of the Patriot Act. Is that important? I have to confess that I haven't a clue. I'm not a lawyer and can't discuss the intricate legal implications of the legislation, nor am I a security expert who understands the ways in which this complicates their enterprise, but I do know a little about politics and history and it is stunningly apparent that none of the major disputants is talking about the real world here.

Orin Kerr has some of the best commentary I have seen yet. He writes:
For those of us who think of the Patriot Act as actual legislation rather than a symbol of the Bush Administration, this is rather puzzling stuff. The dirty little secret about the Patriot Act is that only about 3% of the Act is controversial, and only about a third of that 3% is going to expire on December 31st. Further, much of the reauthorization actually puts new limits on a number of the controversial non-sunsetting provisions, and some of the sunsetting provisions increased privacy protections. As a result, it's not immediately obvious to me whether we'll have greater civil liberties on January 1, 2006 if the Patriot Act is reauthorized or if it is allowed to expire. (To be fair, though, I'd have to run through the effect of every expiring section and all of the reauthorization language to check this - maybe I would feel differently if I did.)

Of course, four years after the Patriot Act was passed, a meeting of everyone who thinks of the Patriot Act as actual legislation could be held in my kitchen. For most people, the Patriot Act is a symbol of the Bush Administration and the War on Terror. From that perspective, the current debate makes a lot of sense: for opponents, fighting the Patriot Act reauthorization continues the valiant struggle against the evil forces of Big Brother and the out-of-control Bush Administration; for supporters, supporting the Act helps beat Al Qaeda, makes the homeland safe from attack, and helps win the global struggle against terrorism. If neither of these visions bears a particular resemblance to reality, well, hey, no one ever said democracy was perfect.
Read it here.

Prof. Kerr has a point. Everyone in this debate is invoking apocalyptic rhetoric and symbolism that has little to do with the real world. Democrats try to portray Republicans as a threat to individual liberties. Republicans try to portray Democrats as threats to the nation's security. Neither claim is plausible in and of itself, but there is little interest on either side in fact or even plausibility. Both parties have settled on a strategy of trying to scare the bejeesus out of the American public. Of course, that's not going to work with the general public, but that's not the goal of the contending parties. In off-year elections the whole game is energizing your semi-sane "base" of workers and contributors, and the general public be damned.


Glenn Reynolds looks at the same passage as I did and makes many of the same judgments, but notes an ominous "mission creep" that worries him. He writes:

There does seem to be a lot of symbolism involved. On the other hand, there's been a lot of "mission creep," with Drug War legislation that has nothing to do with terrorism being slipped in to the reauthorization act. I don't know whether we'd be safer with the bill passing or dying either. But that seems to me to be reason to hold back: If we're going to pass a big national security bill, shouldn't we know things like that? The debate, which has been long on symbolism and caricature but short on substance, hasn't helped much.

I agree that perhaps more time for consideration is needed, but there is little reason to believe that reasonable and rational consideration will be forthcoming at least until after next year's elections. And even then..., well, when's the last time you heard a rational discussion of the nation's drug policies?

Read him here.

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