Now comes Patriot II,  a leaked or trial-ballooned (depending on your level and type of cynicism) draft of Ashcroft inspired modifications, tweaks, and clarifications to the original.

Of the reactions I've read (here and here, for instance), there has been nothing mentioned of Section 103. I think this provisions deserves much greater attention and condemnation that it has received. In this section, the Executive is given powers, which to date are considered war powers, under less than certain conditions. It is the beginning of loosening the distinction between a civil government and a martial one.

The front piece commentary reads: [source link]

Under 50 U.S.C. §§ 1811, 1829 & 1844, the Attorney General may authorize, without the prior approval of the FISA Court, electronic surveillance, physical searches, or the use of pen registers for a period of 15 days following a congressional declaration of war. This wartime exception is unnecessarily narrow; it may be invoked only when Congress formally has declared war, a rare event in the nation's history and something that has not occurred in more than sixty years. This provision would expand FISA's wartime exception by allowing the wartime exception to be invoked after Congress authorizes the use of military force, or after the United States has suffered an attack creating an national emergency.

And the proposed language change reads:

Sec. 103: Strengthening Wartime Authorities Under FISA.
Sections 111, 309, and 404 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1811, 1829, and 1844) are each amended by inserting after "Congress" the following: ", the enactment of legislation authorizing the use of military force, or an attack on the United States, its territories or possessions, or its armed forces creating a national emergency."

The significance of a Declaration of War is that, among other things, it formally replaces civil law with martial law. It changes the standard of what is considered acceptable public discourse. What might be considered dissent under civil law could well be treason under martial law. Likewise, what might be considered a dissident group under civil law could easily transmogrify into a terrorist organization under martial law.

A Declaration of War is a very formal and distinct act. There is a definitive beginning, a marker when a society goes from a civil government and a civil law to a martial government and law. Presumably there is thorough reasoned discussion leading up to the declaration and there is an agreement about what is required.

An authorization to use force is nowhere as compelling as a Declaration of War. Even less compelling is the more awkward and vague notion of an attack; what kind of attack? This provision allows the Executive to both define what actions qualify as an "attack" and then to impose martial restrictions. This is not the proper alignment of checks and balances.

These provisions of Section 103 are vague, indistinct. Yet they are now considered the equal of a declaration of war, at least as far as certain surveillances and searches are concerned. And in so doing, the precedent is established for reducing the requirements for imposing martial law across the board.

At the end an interview in the Harvard Political review, Jack Valenti was asked about censorship:

JV: At all costs, the government should stay out of censorship, except in war. When soldiers lives may be at stake, I think you can. Vietnam is the only war we've ever fought in the history of our country, without censorship. But in any other arena, I'm totally opposed to censorship in any form. I'm a great believer and defender of the First Amendment.

We weren't at war in Vietnam, Jack! There was an authorization to use force, that's it. And as Vietnam proved, these quasi-mandates tend to lead to adventurism without clear goal or purpose. No, putting a soldier's life at stake is not sufficient to justify the imposition of censorship, or any other martial strictures. If the government wants the full force of control that martial law provides, then the government needs to step up and make a formal declaration to its own people and to the world.

Let's not give up ALL our freedoms in this rush to protect them. Do not allow the declaration of war to become some meaningless relic of a society that has lost its vision of and its will to protect a vibrant civil government.

Postscript: All so check out Section 204, which opens the door further for Star Chamber justice.