2011-05-27 Obama Administration Doesn't Want Lawmakers to Debate National Security

Three provisions of the Patriot Act set to expire were extended yesterday as Senate leaders effectively shut off debate and worked to block attempts to amend the Patriot Act to include privacy protections. The reauthorized provisions went to the House for approval and, after passing through Congress, the legislation was flown to US President Barack Obama in France so he could sign the reauthorization.

The continued granting of overly broad powers, which directly threaten Americans’ right to privacy without unreasonable search or seizure, was accompanied by passage in the House of a National Defense programs bill that included language granting the Executive Branch the authority to wage worldwide war.

A handful of lawmakers in the House and Senate attempted to make amendments or block the passage of measures that would allow powers granted to the state to greatly expand. A trans-partisan group of House representatives introduced an amendment that would have struck down the worldwide war provision. Senator Rand Paul, Senator Mark Udall and Senator Ron Wyden each made valiant attempts to have a comprehensive debate on the provisions before granting reauthorization but the Obama Administration discouraged debate.

Marcy Wheeler of Firedoglake and Mike Riggs of Reason.com reported Sen. Harry Reid and others in Congress were using Obama Administration fearmongering and talking points to prevent provisions from expiration. Debate (and in effect democracy) was being obstructed because the White House was asserting, “The FBI would be able to continue using orders it had already obtained, but it would not be able to apply for new ones if further tips and leads came in about a possible terrorist operation…no one could predict what the consequences of a temporary lapse might be.”

The fearmongering induced the following reaction from Sen. Paul:

…There have been people who [have] implied in print that if I hold the PATRIOT Act up and they attack us tonight, that I'm responsible for the attack.

There [have] been people who have implied that if some terrorist gets a gun, that I'm somehow responsible. It's -- it's sort of the analogy of saying that because I believe that you should get a warrant before you go into a potential or alleged murderer's house that somehow I'm in favor of murder.

The diligent work of bloggers closely following national security issues in the United States unearthed the fraudulence of such bullying. Had the provisions not been extended, a “grandfather clause” would have permitted their continued use in investigations that were already taking place.

Paul was eventually allowed by Reid to fully engage in the legislative process and bring two of his amendments to a vote. In his statement on why he thought it important to amend the Patriot Act, he deconstructed myths surrounding the Act, calling into question whether the government should have a right to sift through millions of gun records without asking if you are suspect; whether the government should be able to monitor what books citizens read; whether the government should have access to banking records without a warrant; whether it is good security to treat everyone as a potential terror suspect; whether the Patriot Act has truly given the government tools that have led to the capture of terrorists; whether violating the Fourth Amendment should be permissible; whether we as Americans believe in the rule of law; and whether these issues should be open to debate.

Udall, in his statement on the extension, stated, “Many Americans have been demanding reforms to these provisions for years. We've known for months - years, in fact - that this was on our to-do list this Congress. We've been passing short-term extensions in order to give us time to consider a comprehensive overhaul…Yet we're now being pushed to approve a four-year straight reauthorization in just a few days. Trust me, we have time and should take that time for a full debate."

While the extension of provisions merits scrutiny, the squelching of democratic debate demands just as much scrutiny if not more. As Paul said in his statement on the floor, it is incredibly important to have debates on the floor, and “that's why there is a certain amount of disappointment to having arrived in Washington and to see the fear of debate of the constitution and that we really need to be debating these things.”

Not allowing debate was determined prior to the votes. As bloggers like Salon.com’s Glenn Greenwald highlighted, the idea was “to pass the extension with as little debate as possible to avoid a protracted and familiar argument over the expanded power the law gives to the government.”

Congress should not be a body that inhibits debate. Authorizing power to government that so clearly threatens civil liberties such as rights to privacy (and in many cases First Amendment rights) should not be scrutinized, despite the fact that there exists clear evidence of government abuses of power under the Patriot Act.

Paul sharply noted that chilling debate is something those in the Legislative Branch of government have done multiple times. On the issue of war in Libya, there was no debate. An invasion was launched without asking Congress for permission (a move, that over sixty days later, now clearly violates the War Powers Act).

We now have a war in which there has been no congressional debate and no congressional vote. But you know what they argue? They say it is just a little war. But you know what? It is a big principle.

It is the principle that we as a country elect people. It is a principle that we are restrained by the Constitution, that you are protected by the constitution, and if I ask the young men and women here today to go to war and say we're going to go to war, that there darn well should be a debate in this body.

The worldwide war authorization to grant the president additional war powers that would further expand the imperial presidency also received little to no debate in the House. Read the text of Section 1034 (the "forever war" provision) and decide whether not debating this provision should be acceptable:

Congress affirms that--
(1) the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad;
(2) the President has the authority to use all necessary and appropriate force during the current armed conflict with al-Qaeda, the Taliban, and associated forces pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note);
(3) the current armed conflict includes nations, organization, and persons who--
(A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners; or
(B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A); and
(4) the President's authority pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) includes the authority to detain belligerents, including persons described in paragraph (3), until the termination of hostilities.

The Obama Administration indicated, prior to the vote, that it objected to this provision that would expand war powers:

The Administration strongly objects to section 1034 [the worldwide war provision] which, in purporting to affirm the conflict, would effectively recharacterize its scope and would risk creating confusion regarding applicable standards. At a minimum, this is an issue that merits more extensive consideration before possible inclusion...”

Nonetheless, there was only about twenty minutes of debate on the section of the defense bill.

In the midst of obstruction of debate by Senate leaders like Reid, four senators earned the "promise" of a hearing on the "secret and expansive Justice Department interpretation of the information collection the Patriot Act allows."

Note what is allowed and not allowed: Scrutiny during the time when scrutiny could influence the nature of provisions or legislation is inconvenient and a nuisance. Such scrutiny must be limited by preventing amendments and restricting the time allowed for floor discussion. But, in the aftermath, if senators would like to provide oversight and share with agencies or departments criticism or ideas for improvement, that is allowable. As long as there is no binding legislation to force the agencies or departments to respond to criticism and adjust operations, lawmakers may have a dialogue. (However, as this deals with national security, the public will not be privy to what goes on in such hearings. They will have to trust unquestioning lawmakers who are typically averse to scrutinizing the national security establishment.)

The collusion between the White House and Congress to curb debate becomes further troubling as one considers how it allows for the militarization and securitization of society without any accountability for the players involved in the expansion.

Thirty-five articles of impeachment for former President George W. Bush by Rep. Dennis Kucinich were introduced in Congress in June 2008. When Attorney General Eric Holder took over the Department of Justice, concerned citizens, advocacy organizations and a few lawmakers urged accountability for crimes and misdemeanors committed by former Bush Administration officials. But, Americans were told that they needed to look forward and not backward.

Thus, there has been no expenditure of government resources to address and investigate: the creation of propaganda to manufacture a false case for war in Iraq; the misleading of the American people to make them believe Iraq was an imminent threat and possessed weapons of mass destruction; invading Iraq absent a declaration of war; providing immunity from prosecution for criminal contractors in Iraq; detaining indefinitely and without charge US citizens and foreign captives; secretly authorizing and encouraging torture; kidnapping people and taking them to ‘black’ prison sites in nations known to practice torture; directing telecommunications companies to create illegal and unconstitutional databases of private telephone data from citizens and spying on Americans without a court-ordered warrant in violation of the law and Fourth Amendment.

Thus, a crisis of impunity gives way to widespread lawless conduct by power.

Impunity allows security to employ tools of repression that typically society had found to be off-limits because of certain rights society presumed should be preserved and protected. This new brand of security becomes normalized. As those keeping citizens “more safer” have more freedom, the people become less and less free.