Questioning the necessity of the Patriot Act

January 20, 2006

A member of the White House press corps, I’m afraid I don’t know which one, asked Scott McClellan one of the more provocative questions I’ve heard from a WH reporter in a while.

Q: Scott, does the administration believe that the President’s wartime powers gives him the authority to authorize an extension of Patriot Act-style counter-terrorism techniques, whether or not Congress renews the act?

McClellan: The extension of the — we want to see Congress reauthorize the Patriot Act. The Patriot Act is an important tool in helping us to prevent attacks. It has helped us to disrupt plots and prevent attacks from happening, and that’s why it’s so important that Congress move forward on renewing the Patriot Act.

Q: If Congress doesn’t do so, can he, as Commander-in-Chief, authorize —

McClellan: — what ifs. The President wants to see it renewed. What the President will do is continue to use every lawful tool at his disposal to prevent attacks and to defeat the terrorists.

Q: What difference does it make if Congress doesn’t — if it’s a national security issue?

McClellan: Well, for the reasons that we have stated.

Kudos to the reporter who started this exchange. It follows a perfectly logical framework as presented by the Bush White House.

The Patriot Act empowers the federal government to bolster intelligence gathering, surveillance techniques, criminal probes, law enforcement, etc. To listen to the official White House line, the president believes the law is “vital” because, without it, the government would lose a valuable tool that enhances national security.

But as we’ve seen of late, the steps the president has taken in the name of national security can exceed legal limits. Indeed, even when Congress explicitly mandates certain presidential conduct, Bush believes he has the authority to do as he pleases.

With this in mind, why even bother with the Patriot Act? Citing national security, Bush could simply enforce the provisions of the measure, whether they’re approved by Congress or not. Having the law would be window dressing for a president who believes his national security concerns trump the letter of the law.

No wonder McClellan didn’t have a great response. The obvious answer is, “Well, because the president wants to act within the law.” I guess he couldn’t get to it with a straight face.

This reminds me of the veiled threat from one of the FISA court judges. They wanted a briefing on the program. There was a veiled threat that if they didn’t get answers, one option was disbanding the court.

There hasn’t been any followup in this area. What gives?

  • … the part that reminded me was – the “threat” was of the nature – well, if the president believes they have the authority, then why does the FISA court exist?

  • The point here was one Al Gore was making in his MLK day speech. If the president doesn’t have to follow laws he disagrees with, i.e. torture, illegal wiretapping, suspension of habeas corpus and detention without access to the courts, then which other laws is he not bound by and what policies could be changed by executive mandate?:

    Slavery? Halliburton would benefit mightily if they could use forced labor without having to pay living wages.

    Apartied? A sure winner in some quarters.

    State Religion? Another big winner on the right.

    I have been disappointed that this has not been noted as a highlight of Gore’s speech. I think it’s important.

  • The law is “vital” because it gives the veneer that the President is receiving his authority to act above the law from the People.

    Illusions must be maintained–the People must be made to understand that they gave up their liberties voluntarily, else they may become *justifiably* disaffected.

  • I wonder if he will suspend elections in the name of national security? I mean he might be the anti-Rosevelt.

  • Notice his exact words were “…we want to see Congress reauthorize the Patriot Act.”

    Sure, they’d love to have Congress do it so they don’t have to publicly declare the existance of the Imperial Empire, even though the sentient portion of the public already knows their mindset.

    Let’s see how far they’re really willing to take this thing if Congress chooses not to play ball.

  • The question is “why make any laws at all regarding national security, if they can be overridden at any time by Presidential whim?” What’s the point of the Patriot Act if Presidential powers are obviously greater than what is already in the act. What is it enacting exactly that the President doesnt feel he has the authority to already do? In fact, given the signing statement approach, why bother to write any laws at all? Why not just stay on vacation?

  • Mr. Flibble writes:

    The law is “vital” because it gives the veneer that the President is receiving his authority to act above the law from the People.

    Illusions must be maintained–the People must be made to understand that they gave up their liberties voluntarily, else they may become *justifiably* disaffected.

    You’re clearly being tongue-in-cheek, but last month, shortly after the NSA wiretap stpry broke, I asked a colleague (a Bush supporter, but an otherwise educated guy) the same question that Gore, the reporter, and others essentially ask, i.e., “If the President has unchecked power to protect the nation, why does he NEED the Patriot Act at all? Why has he complied (in hundreds of instances, but not all) with FISA requirements?”

    My colleague was clearly spitballing, but his answer was remarkably similar to yours, and was said in all seriousness. The Patriot Act and Bush’s (occasional) compliance with FISA was not legally necessary, he assured me. But Bush did out of “politeness to Congress”, and to keep the illusion of a united front in the war on terror.

    In other words, Bush did a favor to Congress by letting them enjoy the appearance of taking part in the war on terror, but he didn’t have to.

    If I had been drinking water at the time, water would have come out my nose.

    But really, there IS no reasonable explanation for the contrary positions taken by the White House. You simply can’t argue why it is so important for Congress to extend to Patriot Act (on the one hand), while simultaneously arguing that the Constitution gives the President to act however he wants (with the other hand).

  • Right Ken. The positions taken by the WH are completely illogical. If the obviousness of this isnt brought up in the Feb 6 hearings, then they will be completely useless. It appear that our system of checks and balances has been compeltely subverted and made entirely irrelevant. Scary place this country is heading…

  • I actually wasn’t being tongue-in-cheek. I truly believe this is the WH thinking behind all this! (As it was for the Nazis–everything “legal”).

    More specifically, it is easier and more efficient to rule through consent than through fear–the GOP lacks brownshirts or a Praetorian Guard, so if they want absolute power then they need to convince the people that they gave up their liberties freely.

  • BushCo will extend the presidency beyond the 4 yrs. Easily done. Just make up another bin Laden message and stir up some bad guys with missiles in foriegn lands. Along with that, do your best to get the public all stupid with fear, and voila…….
    The repugnicans are steamrolling the Dems. “Ol Harry and the boys haven’t quite figured out the game plan yet I fear.

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