Cats and monkeys – monkeys and cats – all human life is there!

Henry James[1]

[This is Phil. G asked me to take over this week and, as a favor to our readers, to do something short and, hopefully, sweet. I told him that I’d try for a bon mot, but I didn’t have a good recipe for bonbons. So the readers will have to find their sweets elsewhere. Here’s my effort.]

What color are they? The cats, I mean. Who can tell? They all look the same in the dark.[2] But they do come around, and I’m not sure why. No, I guess that’s wrong. I really do know. Cats are interested in a house if they (i) smell a feline of the opposite sex in there; (ii) expect to be fed; or (iii) just generally like doors. Doors, you say? Yes, I see it every day. Some cats just love a door, especially if it’s closed. They’ll run to it, jump up, try to turn the knob, and generally make a pest of themselves until you open it. Then they’ll run inside, race around a bit, and repeat the performance to get out.

Once a cat looks, and isn’t impressed, he or she goes back to earlier business. Bob Heinlein,[3] the science fiction writer, knew that. He wrote about a cat that would not go out when there was snow on the ground, but would check every door to see if one opened on to summer.[4] The book was about time-travel, but I don’t think cats do that. Nevertheless, the principle is the same; for a cat, any door might hide the way to something good.

So that’s why when they’re outside they want to get in, and when they’re inside they want to go out. And this is where Henry James is so helpful. For, you see, while I don’t know much about monkeys, it’s obvious that cats and humans have a lot in common. Take politicians, for example: When things explode, some politicians freeze, possibly in fear; but most look for a way out. And in an emergency, any exit will do, because any place is better than the one they’re in.

Consider today’s brouhaha about government snooping, foreign and domestic. Actually I’m not sure there’s any exit that leads to a good place for politicians involved in that. But no doubt some places are better than others.

Authority for the enhanced spying we do today, apparently derives from Title II of the Patriot Act, especially §215. How do I know that? Well, because earlier this month the Manchester Guardian published some documents, including a court order, that pretty much demonstrate that we have a very broad program for intercepting other peoples’ communications. [5]

You all remember the Patriot Act, don’t you? That’s the 100+ page[6] statute passed on October 26, 2001, about 45 days after the September 11 strike on the World Trade Center. The Act was hastily cobbled together, and many people thought of it as emergency legislation, not something that should be permanent[7]. So our Congress at the time decreed significant parts would “sunset” on December 31, 2005.However, the Act was modified somewhat and reauthorized in 2005, 2006, 2010 and 2011[8] and it’s still with us today.

Congressman Bob Barr of Georgia[9], an early supporter of the Patriot Act, believed firmly that it should sunset.[10] He lost his seat in 2003 due to redistricting, so he wasn’t around to vote on reauthorization; presumably his vote would have been negative. But today he says his initial vote for the Act also was a mistake. “Do we want, as a free people, with the notion of privacy enshrined in the Constitution and based on the very clear limits and defined role of government, to be in a society where not just the police, but the military are on the street corners gathering intelligence on citizens, sharing that data, manipulating that data?”[11]

Be that as it may, there is a certain logic to passing something like the Patriot Act on an emergency basis and reviewing it later in the light of experience. But the problem is, Congress as a whole has no experience with it. Most of the programs they might want to look at are super-secret. Operations are Top Secret; operators work off of legal and other advice that’s also classified, and is subject to various testimonial privileges[12]; issues are litigated, if at all, in a secret court; and the few Representatives or Senators who know anything are sworn to secrecy.

Add to that the political dimension. Historically Movement Conservatives have seen the Patriot Act as an essential part of the War on Terror. So any time reauthorization comes up as a subject they unlimber their megaphones and shout down the opposition.

So how does the public find out the truth? By waiting for leaks, of course, and boy, we got them this month! And did you notice what happened? Like cats startled by a noise, Conservatives and their media hangers-on jumped for the exits. Now they’re blaming President Obama for a situation they originally authored and supported. What’s next? Will they disavow torture?

Basically these defectors landed in Liberal territory, rediscovered civil liberties, and probably should join the ACLU. Really, Conservatives, it’s OK to talk to ACLU-types. You may find they’re not as bad as you thought.

What would a cat say about all of this? I don’t know, but I know what folks say about cats.

Cats, no less liquid than their shadows,

Offer no angles to the wind.

They slip, diminished, neat, through loopholes,

Less than themselves.[13]

Politicians can try, but they’re not as graceful, and they need bigger loopholes.


[1] This is Henry James, the novelist, who lived from 1843 to 1916. See The Oxford Dictionary of Quotations (Oxford, 2004) at Henry James, p. 417, n. 22. Henceforth, the book will be cited as ODQ at __.

[2] See ODQ at Proverbs, p. 614, n. 9: “All cats are grey in the dark.” The proverb is from the mid-16th Century.

[3] Don’t know who he is (was)? Check out Wikipedia; just go there and search “Robert A. Heinlein,” or click here: http://en.wikipedia.org/wiki/Robert_A._Heinlein

[4] See Heinlein, The Door into Summer (Doubleday, 1957) (numerous reprints). It’s still available in paperback. If you want to know about the book, check Wikipedia at http://en.wikipedia.org/wiki/The_Door_into_Summer Heinlein said: “When we were living in Colorado there was snowfall. Our cat – I’m a cat man – wanted to get out of the house so I opened a door for him but he wouldn’t leave. Just kept on crying. He’d seen snow before and I couldn’t understand it. I kept opening other doors for him and he still wouldn’t leave. Then Ginny said, ‘Oh, he’s looking for a door into summer.’ I threw up my hands, told her not to say another word, and wrote the novel ‘The Door into Summer’ in 13 days.” You can find the quote in note 2 to the Wikipedia discussion.

[5] If you want to know the specifics, the Judge’s Order is classified Top Secret but, as we all know, was published by the Manchester Guardian this month. It principally affected Verizon, but obviously followed a pattern that would apply to other phone carriers as well. You can find it and many other things at the Guardian’s web site http://www.guardiannews.com/ ; go there and look for The NSA Files.

[6] See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Public. Law 107-56, 115 Stat. 272 et seq. (October 26, 2001). Actually, the original is 130 pages, the legislative history is quite a bit longer. You can find the original at http://www.gpo.gov/fdsys/pkg/PLAW-107publ56/pdf/PLAW-107publ56.pdf

[7] Wikipedia has an interesting account of the Act’s history. At some point we should ask Larry for more, but for this discussion Wikipedia’s version will do. Go to the website at http://en.wikipedia.org/wiki/Patriot_Act to find it. The Article will be cited henceforth as Wikipedia’s Patriot Act at __.

[8] See Wikipedia’s Patriot Act at “Reauthorizations.”

[9] See the Wikipedia entry on Bob Barr, at http://en.wikipedia.org/wiki/Bob_Barr

[10] See Fox News, Viahos, Bob Barr, Unlikely Leader But Possible Third Party Warrior (April 18, 2007) at http://www.foxnews.com/story/2007/04/18/bob-barr-unlikely-leader-but-possible-third-party-warrior/

[11] See note 10.

[12] I’m thinking of attorney work product, attorney-client and executive privilege, plus anything else inventive lawyers might concoct under Rule 501 of the Federal Rules of Evidence. See last week’s blog.

[13] See ODQ at A.S.J. Tessimond, p. 786, n. 3. There’s a short piece on him in, where else?, Wikipedia. Go to http://en.wikipedia.org/wiki/A._S._J._Tessimond

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