UnPATRIOTic: Why Our Government Won’t Protect Our Rights – and What We Can Do About It

This spring, as he did last year amid conspicuously little fanfare, President Obama stands ready to sign into law a bill reauthorizing portions of the PATRIOT Act. His reversal since the 2008 campaign is stunning, suggesting a deeper structural problem beyond the day-to-day political jousting seemingly at work. While analysis of the problem is necessary and crucial, equally important are the impending action opportunities through which we, the people, can help restore sanity to DC.

Restoring checks and balances on executive power was a central plank of President Obama's platform when campaigning for the presidency. As Mr. Obama said in no uncertain terms:

[The Bush] administration … puts forward a false choice between the liberties we cherish and the security we demand. I will provide our intelligence and law enforcement agencies with the tools they need to track and take out the terrorists without undermining our Constitution and our freedom.

That means no more illegal wire-tapping of American citizens. No more national security letters to spy on citizens who are not suspected of a crime. No more tracking citizens who do nothing more than protest a misguided war…. The separation of powers works. Our Constitution works….

[The Bush] Administration acts like violating civil liberties is the way to enhance our security. It is not.

Yet, as The American Prospect's Adam Serwer has correctly observed, “The post-2006 Bush national-security state is virtually untouched, with the exception of a delicate and reversible executive ban on torture.” Indeed, there is little daylight between Presidents Bush and Obama on these issues.

Despite Obama's assertive rhetoric during the 2008 campaign, his administration has unleashed the FBI on yet another “sophisticated vigilante operation” targeting law-abiding peace activists and Muslim-Americans through FBI infiltration and raids. Through the Department of Homeland Security and Immigration and Customs Enforcement, Obama's administration has mounted a vigorous assault on immigrant communities, prompting a humanitarian crisis, and repeatedly backed the extension of PATRIOT powers – even going so far as to create an entirely new category of surveillance tools criticized by the Justice Department's internal watchdog before he eventually retired.

Meanwhile, the White House has derided the president's supporters who champion civil liberties as “crazy.” But is it really we who are crazy?

The PATRIOT Act has inspired widespread resentment across the political spectrum. It passed with a single dissenting vote even though most members of Congress have never actually read it. Provisions previously set to expire have been reauthorized three separate times, despite an equal number of Justice Department reports revealing massive and ongoing systemic abuses, including new ones invented during the Obama administration. And over 400 cities, plus eight states, have passed resolutions opposing the federal policy. Yet, it remains in place.

The American people endorsed a platform for change. We raised our voices (by the millions, in over 400 cities and eight states) to reject a specific piece of legislation despised across the country, mobilized to put in place a new president who promised to fix it, and then watched him – not once, but twice – reinforce the prior regime.

But this is not an indictment of President Obama. After all, there is a great deal of political pressure in Washington to bow to America's internal security forces. The problem extends beyond any particular figure.

Our dilemma is multi-faceted. First, most Americans are denied representation. I live in the District of Columbia, where half a million (mostly black, and many low-income) citizens are formally denied a vote in Congress. And even the formal representation afforded to the rest of the country dramatically fails to reflect popular preferences.

We count our votes for Congress in a bizarre, undemocratic way that structurally reinforces a two-party duopoly. As a result, we exclude alternative voices that could help reframe our debates. Put simply, our electoral system marginalizes the public by allowing collusive behavior among political parties that, were they committed by corporations, would be illegal under antitrust laws.

Our electoral system also marginalizes officeholders, as tragically illustrated by former Sen. Russ Feingold. After casting the sole Senate vote against the PATRIOT Act when it was first introduced ten years ago, Feingold worked across the aisle to craft laws to take money out of politics and restore the legitimacy of elections (which had suffered after the debacle of Bush v. Gore). Last fall, mere months after the Supreme Court again assaulted our democracy in the Citizens United decision inviting corporations to buy elections, a right-wing millionaire did exactly that, buying Feingold's Senate seat for $4 million.

Finally, with propaganda (think Fox News) actively skewing popular impressions of what is happening in DC, promoting meaningful debate can be challenging, indeed. Just ask the organizers of a panel on which I spoke in the House of Representatives this January, which invited the FBI's leadership to defend its policies, but could not find an official willing to do so in public.

But if our political process is not responsive, what can we do? Again, Feingold offers an example.

While Feingold may be out of Congress, his legacy remains: the JUSTICE Act, which he authored, would do a great deal to fix the problems of the PATRIOT Act, and deserves support from members of Congress. Beyond addressing the three provisions of PATRIOT set to expire at the end of May, it reaches further to limit dragnet surveillance by the National Security Agency (NSA), as well as prosecutorial abuses enabled by the material support standard.

The NSA continues to conduct secret operations never disclosed to Congress or the public, even though every court ever to have examined the known portions of its activities has struck them down as obviously unconstitutional. And the material support standard has been absurdly upheld by the Supreme Court, even when criminalizing nonviolent conflict resolution efforts, or being used as justification to harass dozens of peace activists across the Midwest.

The JUSTICE Act would impose reasonable limits on executive power. It advances the values embedded in our Constitution, protects the institutional interests of Congress, and – as long as a Democrat holds the White House – even satisfies the partisan interests of Republicans. Yet, the GOP leadership in the House wants to permanently reauthorize PATRIOT powers, and the Democratic leadership in the Senate is debating between a series of bills offering essentially meaningless concessions.

Last year, not a single member of the Progressive Caucus co-sponsored the JUSTICE Act, despite its introduction by Rep. Rush Holt (D-New Jersey).

But this is no time to take our cues from Washington. To the contrary, DC should be taking its cues from we, the people. And we can help make that happen later this month when members of Congress will return to their districts for the Congressional recess from April 18 to May 2. Several national civil liberties groups (including the Bill of Rights Defense Committee, Electronic Frontier Foundation, Defending Dissent Foundation and National Coalition to Protect Civil Freedoms) are urging supporters to meet with your Congressional representatives, to impress upon them the need to restore justice and put an end to unPATRIOTic powers.