A damned good question...

William F. Buckley Jr.:
Is the Patriot Act patriotic?
By William F. Buckley Jr.
Published 2:15 am PDT Friday, July 22, 2005

The Senate Judiciary Committee was up until 3 a.m. arguing over various aspects of the Patriot Act and ended the day with a compromise bill that still has to be debated by the full Senate. The House of Representatives meanwhile passed a bill extending permanently all but two of the provisions of the Act. These two will need to be reviewed -- 10 years from now; which is akin to making them permanent. The House and Senate versions differ on this and that point, but the principles being discussed are pretty much the same and have to do with what it is we are willing to forfeit in order to advance our security, or seek to advance it.
Libertarian-conservatives are vexed by the arguments being used, and the people using them. Lisa Graves, senior counsel for the American Civil Liberties Union, complains that amendments are needed "that would protect our civil liberties and restore appropriate checks and balances." It is painful to conservatives to be thought less concerned than the ACLU to watch over the predations of government.
The House vote on the retention of the Patriot Act was 257 approval, 171 disapproval. Most of the disapproving were Democrats, but there were a few Republicans on that side, and the Congressional Record will tell us what were their lines of argument.
The model in these matters is in two parts. The first asks: Is the government seeking a reasonable extension of its powers to investigate, preclude and punish? The second asks: Is the new threat being addressed realistic?
Other questions are subsidiary. Whether a provision should be reasserted permanently or be subject to sunset provisions can divide legislators identically concerned for the public safety. But one will perhaps believe, with the sunset community -- to which this analyst enthusiastically belongs -- that it is always a good idea to look again at any repressive legislation after it has been in place for a while, its accomplishments weighed, its toll considered. Those who are asking for longevity for the Patriot Act are viewing the evolution of terrorism and assuming, not unreasonably, that terrorist resources aren't going to reduce: so that an increase in security measures should be thought permanent.
The argument unfortunately rests, in many cases, on unseen and unseeable factors. A thousand years ago the criminal reach was limited to the length of a spear. The reach of the modern criminal permits him to transmit a lethal communication to Mars in a trillionth of a second. The political challenge is to advance the art of self-protection pari passu with the art of aggression. The first, humbling lesson is that in order to do so, it is required to enlarge the range of suspects. They used to be the thief, the lover and the butler. On July 7 in London it was four young British Muslims, indistinguishable to the authorities until that day from a million other British Muslims. Their targets: 56 complete strangers, who did nothing more offensive or conspicuous than to ride in subways and on a bus.
Progress begins by pooling intelligence information, and that is the major contribution of the Patriot Act. Material that was the property (so to speak) of the FBI wasn't compared with material that was the CIA's.
That barrier is reasonably terminated, though many questions have been raised having to do with jurisdiction and with authority. If a security agent reasons that everyone who attended an ACLU rally should be looked into, we have massive instrumentation available for doing this. Eavesdropping is an enormous enterprise, and the government's ear is huge. For many years, extraordinary searches required the consenting collaboration of a judge. In Great Britain, the distinctions we have observed aren't relevant -- MI-5 has access to it all. However, if prosecution is considered, Scotland Yard has to be brought in, so that there is a second agent of the executive at work.
The Patriot Act gives government the power to demand business and library records and to conduct roving wiretaps. Obviously, it is still one step more to move on to prosecution. But those who are reluctant to permit the government to inform itself thus randomly are not necessarily engaged in trying to protect criminals. There is in the modern liberal order what goes by the term expectation of privacy. An easy example would have to do with your sex life. But what about your distribution of funds, the people you visit, the books you read, the television shows you watch, the e-mails you dispatch?
The Patriot Act is further bedeviled by the difficulty in amassing records that display its success. If you reduce the speed limit, in no time at all you can measure changes in the rate of accidents. How have the provisions of the Patriot Act affected the liberty of modern malefactors to work their odium upon us? The legislators have difficult responsibilities, and it is discouraging that there is so little hard evidence informing the public commentary.