PATRIOT Agonistes

Bad law loses steam as Americans reassert their freedom.


It was like a Peanuts cartoon where Lucy decided not to grab Charlie Brown's football. Last month, a bill to make permanent 16 privacy-shredding provisions of PATRIOT Act arrived in the Senate for an expected "yea" vote. Civil libertarians had watched "anti-terror" laws sail through Congress since the PATRIOT Act passed 98-1 four years ago, and the steamroller wasn't going to up and stop.

And then, it stopped. Thanks to a filibuster led by Idaho Republican Larry Craig and Wisconsin Democrat Russ Feingold, the permanent extensions hit a reef, lawmakers scrambled to pass a temporary extension, and a final reckoning was delayed until February 3. The PATRIOT Act isn't dead, but that it's got to face more bickering and amending before it can pass again is a genuine surprise. It's the strongest, most satisfying evidence yet that Americans are coming back to their pre-9/11 ideas about freedom and privacy.

So far that's happening without the knowledge of Washington pundits, power brokers, and the White House. In the nation's capital the PATRIOT vote was seen as a Christmas gift to George Bush from Democrats who commit political suicide as if they enjoy it. Immediately after the filibuster on December 16, Republican National Committee Chairman Ken Mehlman soldered on his Darth Vader mask and promised electoral doom for the terror-loving Dems. "In 2002, the American people rejected politicians who blocked the Department of Homeland Security to appease public employee unions," Mehlman warned. "Democrats who blocked the PATRIOT Act to appease the hard left should beware."

But Mehlman unwittingly stumbled on the chief reason Democrats and Republicans felt safe going after the PATRIOT Act: Doing so would win them some elections. As I noted in the November issue of Reason, no senator who voted against the PATRIOT Act in 2001 or subsequently voted to amend it has ever lost a race; five congressmen who voted to reject or amend the act have lost their seats, but those losses had more to do with redistricting and a gay marriage vote than with their positions on the PATRIOT act. The Senate's anti-PATRIOT mover, Russ Feingold, is an increasingly-serious presidential candidate. The two PATRIOT reformers in the House, liberal independent Bernie Sanders and conservative Republican Butch Otter, are going to win landslide elections to higher office in November—Sanders to a Senate seat in Vermont (Kerry by 20 points), Otter to the governor's office in Idaho (Bush by 38).

"There clearly back in 2001 was an effort to use to the PATRIOT Act for political power," says Bob Barr, the former Georgia congressman who heads the left-right PATRIOT reform coalition Patriots to Restore Checks and Balances. "Anyone who questioned any of the provisions was not supporting the war on terror. People have heard that now for four years, and my sense is most of them are seeing through that sort of rhetoric now."

The reasons for mellowing PATRIOT Act support are legion, but some of them can be traced to the troubles of the Bush administration. In October 2001, when the law first passed, polls pegged approval of Bush's terror-fighting abilities in the stratosphere—88 percent (CBS News) or 92 percent (ABC/Washington Post), higher than his regular approval rating. They've fallen to 53 percent and 51 percent this month, still higher than the numbers of those who want have a beer with the president, but historically low. In December 2001, the CBS poll asked if the president should get extra-Constitutional "special war powers," and 64 percent said yes. This month, only 36 percent favored those powers, which is about as many as think Bush governs under the theory of Divine Right.

For all of the bellyaching about Bush's fallen approval numbers, these figures haven't been accepted in the Beltway. The PATRIOT filibuster was immediately compared to the Democrats' 2002 struggle to square a proposed Homeland Security department with union demands about a new government branch's hiring practices. Republican admen seized Democrats' "no" votes on the Republican version of the bill like the hammer of Thor, defeating incumbent senators like Georgia's Max Cleland for voting "against our national security." A few weeks after the PATRIOT filibuster, The Washington Times found an anonymous Republican aide fantasizing about "posting pictures of Mr. Cleland around the Capitol during the Patriot Act debate."

This year's Republican candidates won't be joining him. The most vulnerable incumbent Democrat who joined the PATRIOT filibuster is Washington's Maria Cantwell, who won her first term in 2000 by 2,229 votes when Al Gore was winning the state by almost 140,000. But Mike McGavick, the millionaire Republican who's challenging her, isn't making the PATRIOT Act an issue. McGavick's campaign staff didn't comment when Cantwell cast her vote, and they're not planning on it in February.

"Two years ago the PATRIOT Act was a polarizing issue," says McGavick's communications director, Julie Sund. "But unless something changes and the public goes crazy about it I don't think it will be an issue for us."

What would happen if the White House's polls moved—if Iranian president Mahmoud Ahmadinejad dismantled his nukes or Vice President Cheney rescued a kitten? Not enough to change the debate. As more and more time separates the country from 9/11, the public is quietly asking the government to give back their normalcy. Soldiers have stopped patrolling the airports, the color-coded alerts have vanished, and the terrorist threats that do crop up end with New York's mayor saying, "Never mind."

There is some legislative scuffling yet to come on the PATRIOT Act, and probably a few more media spin cycles. But as new civil liberties issues arise, like the NSA/wiretapping story, they are being played out on ground that had grown unfamiliar during the four years after 9/11.