Useful Fools

Finally, some sense is being written about The Patriot Act. Legal scholars Posner and Yoo write:

Civil libertarians would have us believe that the Patriot Act allows CIA and NSA agents to roam freely through the country detaining anyone they please. Nothing could be further from the truth. The Patriot Act represents a modest retrenchment from an overcautious interpretation of FISA, but nothing like the pre-1978 regime of warrantless searches.

In other words, before 1978, for the first 200 years of our republic, national security searches required no warrant. FISA instituted a reasonable requirement for warrants, and The Patriot Act modernizes those requirements.

They also comment that

Putting aside the hysterics, the worst thing about the Patriot Act is its Orwellian name.

Pointedly, they note

But some think that even a small restriction of civil liberties can never be justified. These people think that, as a mark of our commitment to freedom, courts should not allow the government to invade our civil liberties even during emergencies. The truth is the opposite. Civil liberties throughout our history have always expanded in peacetime and contracted during emergencies. During the Civil War, the two world wars, and the Cold War, Congress and the president restricted civil liberties, and courts deferred; during peacetime, civil liberties expanded.

And finally, they end with this chilling coda:

It took Pearl Harbor to shatter the complacency of the American public. We can only hope the absence of an al Qaeda attack on American soil during the last two years will not lull us back into our pre-Sept. 11 stupor.

[emphasis added]