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Undue Process?
H.R. 3162, How One Bill Became Law
   Part 1 of The Constitution in Times of Crisis

On October 23rd, Rep. F. James Sensenbrenner [R-Wisconsin, 9th] introduced H.R. 3162.  The 'official title as introduced' was ...

To deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes.

That title was identical to that of a bill Senate Majority Leader Tom Daschle (D-S.Dakota) had introduced and shepherded through the Senate earlier in the month.  And it is what happened in the intervening days and weeks that is the focus here.

Background:  The September 11th attacks and the national response ...
In order to understand how H.R. 3162 became law, it's important to understand something of the background out of which it emerged.  For obvious reasons, some of that background is already well-established in most people's minds.  But it bears repeating here.

It did not take long after the attacks of September 11th for members of Congress, like most of the rest of the nation, to rally around the President and the promise to fight terrorism.  It seemed that the thing of greatest importance was to show a united front to those who had perpetrated the atrocity, to show, as many at the time were saying, that whatever intent there may have been to undermine American unity and conviction, the ploy did not work. 

Indeed, it seemed that now, in a way that had not been seen since the attack on Pearl Harbor, American outrage was only exceeded by American determination to do whatever had to be done to find and punish those responsible and, while we were at it, to root out terrorism everywhere.  In fact, in a poll recently conducted by Gallup and released to coincide with the 60th anniversary of Pearl Harbor, participants were asked which event they thought would be marked as more historically significant "a hundred years from now."  Nearly three-fourths -- 72% to 25% -- said the attacks of September 11th.  With the majority of the population born after Pearl Harbor, that figure may not seem surprising.  But even when Gallup sampled only those 65 and older, i.e., those old enough to actually remember Pearl Harbor, still, nearly two-thirds [62%] identified the September 11th attacks as having greater historical impact.

Senators Leahy & Jeffords
taking questions at a Town Meeting
St. Mike's, Sept. 28th 2001

Approval of the President and Congress ...
From the outset, the numbers showed that both the Congress and especially President Bush's administration were receiving historically unprecedented popular support for their handling of the attacks, their responses to terrorism, and their plans to combat it.  According to the Gallup Poll data, between April of 1974 and just prior to the attacks, the highest job approval rating Congress had received was 57%, which had come in mid-February of 1998.  In the week immediately preceding the attacks, public approval of Congress stood at only 42%.  One month after the attacks, however, the Congress's job approval rating stood at 84%. 

Similarly, while Presidents as a rule have managed higher scores than Congress in general, none had ever achieved the approval ratings of George W. Bush.

From a couple of weeks after he took office until just before the attacks, only once in the Gallup pulse-taking -- near the beginning of July -- did President Bush's approval rate drop below 55%.  Aside from that momentary slip, he had been managing to maintain approval ratings between 55%-63%.  Over a 4-day period immediately preceding the attacks, Gallup again polled its sample and found that Bush's approval rate had fallen to a new low of 51%.  But in a similar poll taken several days after the attacks, President Bush registered an astonishing 86% approval rate, only to be exceeded by the following week's poll when he was confirmed by 90% of those sampled.

In the weeks following, President Bush's rate again dropped back a bit.  But it has yet to fall below 87%, a figure that can hardly be considered a drop.  Congress's rating, on the other hand, had fallen back to 73% by the end of the first week of November.  But that still placed them well above their average of 37.5% over the last 25 years.

Only two other Presidents since Eisenhower have ever registered approval ratings above 80% -- Kennedy at 83%, who to this day has been the only President since 1952 to post an average 70% approval rating or better, and George Bush Senior, who managed an 89% rating during the Gulf War, and a 61% average overall.  In comparison, since 1952, only two Presidents failed to achieve a highest rating at some time during their terms above 70% -- Nixon [67%] and Reagan [65%].

But the President has not been receiving high marks for his general job performance alone.  On just about every score related to the attacks of September 11th, he is receiving unprecedented popular support.  Gallup has been asking whether participants "approve or disapprove of the way George W. Bush is handling" a variety of things.  And on one issue only related to terrorism is his rating below 80%.  ...  U.S. military action abroad to fight terrorism?  87% approve.  ...  Efforts to prevent future terrorism in U.S. in general?  85% approve.  ...  Foreign affairs?  81% approve.  Only when people were asked, "Do you approve or disapprove of the way George W. Bush is handling the response to the recent incidents involving anthrax?" did Bush's approval rating fall to 75%.

Even when Gallup offered more than a yes-no option, the President continued to post strongly favorable numbers:  In early October, asked respondents, in connection with "the military response to terrorism,"  whether they thought "President Bush has gone too far, done about right, or not gone far enough?"  Only 5% thought he had gone too far, while 71% thought what the President had done was "about right."  But another 22% thought he had, at least up to that point, "not gone far enough." 

More on target in our context, in the week after Thanksgiving, Gallup asked participants in the poll the same thing about "restricting people's civil liberties in order to fight terrorism?" One in ten thought the President had gone too far on this score.  And only 60% thought that what he had done was "about right."  But more than 1 in 4 -- 26% -- thought he had "not gone far enough."

The strong approval ratings notwithstanding, though, even at the outset, when the President and Congress had mustered all their respective resources to show a united front in those earliest days after the attacks, there had been voices which questioned the President's or Congress's handling of things.  ...  One of the first to claim air time did so the morning after a late-night session of Congress, three days after the attacks.

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