PATRIOT Act 4th Anniversary Op-Ed
Few Celebrate Patriot Act’s Fourth Anniversary
By Joe W. “Chip” Pitts III -- October 26 is the fourth anniversary of the so-called “USA PATRIOT Act,” which passed immediately after the 9/11 attacks. But this anniversary is not cause for celebration.
Seven states and nearly 400 communities of all political persuasions have passed resolutions criticizing the law’s excesses and upholding the civil liberties of their 62 million residents. The National League of Cities, representing 18,000 cities, has passed a similar resolution. Conservative organizations such as those in Bob Barr’s “Patriots to Restore Checks and Balances” have joined progressive organizations, business groups (such as the U.S. Chamber of Commerce, the National Association of Realtors, the National Association of Manufacturers, and the Financial Services Roundtable), the Bill of Rights Defense Committee, the ACLU and others in an unprecedented expression of local democracy calling for major reforms to this federal law.
Yet Congress is currently reauthorizing the law, with only minor amendments. None of the sixteen provisions scheduled to sunset this year will now do so. While there is some tinkering at the edges, and a couple of provisions will have new sunsets established, almost all provisions of the law will now be made effectively permanent. These can be and have been used not just against terrorists, but as a routine part of domestic criminal law enforcement and in ways that affect the rights of everyone in the country.
The law’s basic constitutional problems remain, among them its broad definition of terrorism, which is so vague that it chills peaceful dissent and civil disobedience. Amendments to Section 215 (the so-called “library” provision) to protect the reading habits of innocent people were passed overwhelmingly by the House of Representatives in June. However, these were prevented from being brought to the floor as an amendment to the House bill to reauthorize the Patriot Act by Tom DeLay and the Republican leadership. That provision in fact applies not just to libraries but allows the FBI to search and seize records of all types, and “any tangible thing,” on mere suspicion of terrorism and with the approval only of a secret Foreign Intelligence Surveillance Act (FISA) court. And the new law continues to include permanent gag orders preventing disclosure of such searches and seizures to anyone other than your attorney. Another section of the law, on "national security letters," allows the FBI to obtain specific types of records from certain categories of businesses without any court at all being involved; the FBI simply writes its own orders.
Sections including 214 expand the FBI’s capability to wiretap phones and tap emails and web visits. But whereas the phone "trap-and-trace" authority gives them only phone numbers, tapping emails and web visits gives them some content. Although they’re not supposed to look at the content, there are no checks to ensure they don’t.
Section 213, the “sneak-and-peek” provision that broadly allows secret home and office searches, remains essentially unchanged, except for new Congressional reporting obligations on the number of times the provision’s been used. The discriminatory ability to detain foreigners suspected of terrorism basically on the say so of one person – the U.S. Attorney General – wasn’t touched, nor were the broad array of anti-immigrant provisions granting the government sweeping powers to deport people based on constitutionally protected speech.
These measures continue to have broad political appeal. After all, what legislator wants to be accused of not doing everything possible to stop terrorism? The problem is that they have dubious actual value, and are in fact counterproductive to true security.
Immediately after 9/11, and in the years since, many have suggested that a “trade-off” of liberty and security is needed to reach a new “balance.” This assumes that the price of more security is always less liberty. But it misses the important truth that security and liberty, in the main, are not opposed but complementary.
Rights such as freedom of speech and religion, privacy, due process of law, equal protection, and fair, speedy trials are not mere abstract values: They are immensely practical values, crystallizing thousands of years of wisdom on how to achieve societies that are safe and secure as well as free and prosperous.
Countries that do not respect civil liberties and human rights may seem stable in the short-run, but they tend to be the places that in the long run produce terrorists and growing instability. Furthermore, expanded governmental powers to spy on dissenters; to scapegoat vulnerable groups like immigrants, refugees, racial and religious minorities; and to pry into the lives of innocent Americans hurt the fight against real terrorists. They do so by diverting government attention and resources, alienating the communities on which we must depend for accurate intelligence, and cultivating a climate of fear in which everyone feels terrorized.
The community resolutions passed across the United States had a positive effect on Patriot Act votes among legislators from those jurisdictions. House members who voted against the reauthorization bill represented districts with four times as many resolutions as those who supported the bill, but there weren’t quite enough votes to tip the scales toward liberty.
Political realities of preserving power at the federal level mean that change will not come from the top. After all, the President proposed and Congress approved the law, and the Judiciary tends to defer to the other branches in national security matters.
Grassroots local action is imperative so that more people become
aware of these issues, come together in non-partisan coalitions with
others, and exert pressure from below to rebuild the crumbling infrastructure
of U.S. freedom. Otherwise, poorly drafted post-9/11 laws and policies
such as the Patriot Act will continue to threaten basic American liberties,
values, political culture, and true security for all.
_____________
Chip Pitts is a board member of the Bill of Rights Defense Committee.
Last June, as board chair for Amnesty International USA, he testified
at a House Judiciary Committee hearing on the Patriot Act reauthorization.