Security versus civil liberties in the Patriot Act

Patriotic Act

Arguments for and against the Patriot Act

The unusual events surrounding the creation and passing of the Patriot Act make it a suspect bill in many eyes. However, major media reports like this one: "Fifty-nine percent in an ABC News/Washington Post poll favor continuing the additional investigative authority in terrorism investigations that was granted to the FBI starting in 2001. President Bush urged such an extension of the Patriot Act today" (Langer) insist that there are others who support it and promote it as a protection against the kind of terrorism that was seen on 9/11. For supporters the idea of sacrificing civil liberties for security measures such as the TSA is, while unfortunate, a necessary evil. Those who oppose it, like alternative media journalist Ryan Dawson and Sen. Ron Paul, decry it as government intrusion. This paper will give arguments for and against the Patriot Act and show why some view it positively while others despise it.

Theory, Rationale and Speculation

Max Weber first established the bureaucratic paradigm in the early half of the 20th century and that system has essentially become bedrock in the federal government. The bureaucracy behind the Patriot Act is, of course, only one rationale for why the bill has come into existence: the other obvious reason is 9/11 -- but beyond 9/11 there are the numerous consequences of the Patriot Act which enable the bill to become a kind of self-fulfilling prophecy: a nation willing to sacrifice its liberties for security deserves neither (as those who oppose it often say, referencing Jefferson's statement), and a nation that is not perpetually being warned of new threats, whose exposure would not have been possible without the Patriot Act, will ultimately eschew those security measures for liberty. Thus, the opposition states -- the Patriot Act is not about security, but about power.

To support such a notion, the opposition points to the fact that the Patriot Act was essentially already written before 9/11 -- and that the massive bill was rammed through Congress before anyone could really argue its consequences (Dawson). Ron Paul, for example, notes that it is not about security, it is about control: "The Fourth Amendment is rather clear: it says we should be secure in our papers, our persons, our homes and our effects; and that if warrants are to be issued we have to do it with probable cause and describe in particular the places, the people, and the things we're going to look at." Paul goes on to describe how the money we spend on surveillance has doubled from $40 billion to $80 billion, and that the government now seems to possess the ability to do whatever it wants. The "sunset clause" was written into the original bill in order to limit its timeframe to function. That clause was supposed to allow officials to review the efficacy and expediency of the Patriot Act and asses whether or not it was still worth keeping on the books. The Act, of course, was extended in 2005. Ron Paul voted against the extension of the Patriot Act -- but as Gerald Celente states, the Patriot Act is really just the tip of the iceberg: the problem is the merger between government and corporation, which is defined by Mussolini himself is Fascism (Celente). Fascism is the rock upon which the Patriot Act has been built -- and those who oppose it see it as such.

Then there are those like Heather MacDonald who writes for City Journal: "Protecting ourselves doesn't lead to tyranny." It is essentially an argument driven by speculation rather than reason: in fact, the rationale behind the Fourth Amendment to the Constitution is completely disregarded by those who support, for example, Section 213 of the Patriot Act. MacDonald produces the kind of rhetoric used to justify 213 -- and it is fundamentally speculative rather than rational:

Section 213 allows the government to delay notice of a search. Let's say that the FBI wants to plumb Mohamed Atta's hard-drive for evidence of a nascent terror attack. If a federal agent shows up at Atta's door and says: 'Mr. Atta, we have a search warrant for your hard drive, which we suspect contains information about the structure and purpose of your cell,' guess what happens next. Atta tells his cronies back in Hamburg and Afghanistan: 'They're on to us; destroy your files -- and the infidel who sold us out.' The government's ability to plot out that branch of Al Qaeda is finished. (MacDonald)

The narrative pretends to be rational -- but it is not and only exposes a terrible ignorance as to the motive behind the Fourth Amendment. Instead, MacDonald calls on 9/11 suspected terrorist Atta to justify essentially revoking the Constitution. In other words, she makes an emotional and psychological appeal to Fascism.

MacDonald represents the Fascist side of the debate. But there are others who support it who attempt to better represent its position: for example, there is Jesse Matthewson. Matthewson defines this position as essentially idealistic and optimistic: it sets up the dichotomy of "good guys" vs. "evil doers" and assumes that Law Enforcement is the "good guy": "By authorizing [the Patriot Act] we can guarantee that our Law Enforcement community has the proper tools to fight the potential for terrorism inside the United States…It is the goal of the supporters of the Patriot Act to ensure a safer tomorrow for the citizens of this great nation" (Matthewson). One can argue about whether the intentions are good or not -- but when one considers the historical perspective, the argument for or against the Patriot Act takes on a whole new dimension.

Historical Perspective and Practical Application

Matthewson, again, breaks the argument down simply enough: the Constitution of the United States acts as the biggest argument against the Patriot Act. "The Patriot Act effectively invalidates the Constitutional Amendments Four through Eight," states Matthewson. Opponents of the bill will point to Section 213 or 215 or 206 or 6001 to indicate the bill's unconstitutionality. Matthewson does so by examining 215:

According to Section 215 of the Patriot Act, Law Enforcement personnel can request your library, phone, and other records if they "suspect" that you may be a criminal of worth. Another part of this section states the following: "A person who, in good faith, produces tangible things under an order pursuant to this section shall not be liable to any other person for such production,"…[but this] runs completely opposite to the Sixth Amendment [which] clearly states the following: "To be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor" (Bill of Rights, 1791).

Indeed, the historical perspective comes out overwhelmingly on the side of the opposition to the Patriot Act. Nonetheless, recent history (9/11) favors the rhetoric of the proponents.

Congressman Jared Polis has stated in Washington that Section 215 "allows the government to capture any tangible thing that might be relevant to a terrorist investigation. That could include medical records, your diary, even what books you've checked out at a library. Now, in the past, these orders were limited to narrow classes of businesses and records, but the Patriot Act has stripped away these basic requirements and continues to violate a basic American principle of privacy" (Polis). Again, the disregard for past civil liberties is seen in the very text of the bill: trumping the past is the response to 9/11. Section 215 is supposedly only concerning "terrorist" investigations, but as Matthewson observes, provisions of the Patriot Act have actually allowed federal investigators to investigate domestic crimes as well:

Even though the people supporting it claim it will not be used against domestic crimes, this is not the case as seen in the case of Bobbie Jo Stinnett. "Using a PATRIOT Act provision, FBI agents and examiners were able to trace Darlene Fisher's messages to a server in Topeka, find Darlene Fisher's e-mail address, and then trace it to a house in Melvern, Kansas. Darlene Fisher's real name was actually Lisa Montgomery. Montgomery was arrested and subsequently confessed. Bobbie Jo's baby, Victoria Jo Stinnett, was found alive less than 24 hours after she was cut from her mother's womb and she was returned to her father." (Department of Justice, 2005) (Matthewson)

Evidence of overreaching on the part of Law Enforcement officials with regard to provisos stated in the Patriot Act are a cause of concern for citizens who do not like the idea of being monitored by a Police State. Still, for every voice that objects, there is one just as loud that says it would rather be safe than free.

If such an example of the practical application of the Patriot Act frightens some (and comforts others), Greg Downing illustrates the dangers of such application using the historical perspective: "The Patriot Act is not the first act of the United States government to infringe on civil liberties…In 1798 there were the Alien and Sedition Acts, Abraham Lincoln suspended Habeas Corpus in the midst of the Civil War, and in 1942 Franklin Roosevelt sent Japanese-Americans to internment camps. In all cases, history should have taught us that civil liberties are paramount, and that infringing on them is a detriment to society as a whole" (Downing).

To elaborate on the incidents of which Downing writes, the Alien and Sedition Acts were passed during the administration of John Adams. At the time, the U.S. was experiencing tensions with France (which had itself fallen prey to revolution, ushering in the reign of Napoleon, who subsequently went on a campaign to subjugate the entire world). What the Alien and Sedition Acts enabled government to do was to arrest any suspicious foreigners and deport them and prohibit anti-government publications from seeing the light of day. Both Jefferson and Madison opposed the bills, and both were threatened with imprisonment for suggesting that the federal government was overstepping the Constitution. Downing relates this incident in American history to the passing of the Patriotic Act in the 21st century: "Under the Patriot Act anyone suspected of terrorist affiliations can be arrested and detained without solid evidence to prove their affiliations. Legal analyst, David Cole wrote in the October edition of The Nation, about the trial of two Palestinian-Americans in Los Angeles who were being deported for distributing pro-Palestinian pamphlets and being part of a group for a free Palestine (Cole par 1)" (Downing).

In Civil War times, Lincoln suspended habeas corpus, which prohibits imprisonment without evidence of crime. Today, the Patriot Act has allowed more than a hundred people to be detained indefinitely in the military facility in Cuba. The reaction against Lincoln was palpable when he overwrote the Constitution -- but he was also in the middle of a civil war.

Then there is Roosevelt's Executive Order that interned more than 100,000 Japanese-Americans following the bombing of Pearl Harbor. This step has been deemed both unnecessary and reactionary and a flagrant disregard for civil liberties: again, war was the motive -- and now today war has become the motive again. Only in our age the enemy is vague: terrorists. Just who is a terrorist? This definition could go a long way to cause great harm to civilians who oppose the current regime, but who do not in any way pose a terror threat.

The counter-argument to the historical perspective is a callous shrugging of the shoulders and an attitude that supposes the innocent have nothing to fear. One need only review the works of Aleksandr Solzhenitsyn -- most particularly The Gulag Archipelago -- his massive expose on the abuses of Stalinist Russia in the 20th century. Millions of innocents were detained and sent into prison camps (not because they posed a threat to lives and safety, but because they opposed the political and social ideas of the regime -- and in some cases, they did not even do this, but were simply "outed" by others who had been arrested and been compelled to confess the names of other "traitors" to the State). The historical perspective offers a very sobering testimony of the abuses of power of a Totalitarian State.

Yet, here is the counter-argument against the historical perspective, such as Solzhenitsyn's, which again and again gives evidence that power corrupts:

The ACLU argues that the John Doe "roving wiretaps" do not identify the target or phone that is wiretapped. They also state that the target does not need to be near the phone to "listen in." So what? The less restrictions the government has, the easier it is to find the guilty. If these people are truly innocent of crimes then they shouldn't be afraid that the authority is listening in on them. Someone might be concerned that this power can be used for other reasons than security, but it is unlikely. ("The Importance of the Patriot Act")

All one has to go on is this reporter's word: historical analysis, on the other hand, tells quite a different story.

206, 215, and 6001

Judging from Rachel Brand's 2010 report, it appeared that the "sunset clause" would be extended again, allowing the three Sections of the Patriot Act that have caused the most controversy, considering their somewhat backhanded slap to the Constitution, to steer the country more and more in a Fascist direction. These three sections provoke the most attacks from people who oppose them. The arguments for them are simplistic: they protect citizens from terrorists, allow Law Enforcement to conduct its business using the best technology available, and ensure that the "good guys" are safe from the "bad guys."

The counter-argument requires a bit more rationality, of course, because the issues are complex: As Brand states, Section 206 of the Patriot Act authorized the FBI to create "roving" wiretaps in continuum -- meaning that when subjects turn off cell phones or switch to different providers, the FBI need not "return to court to seek a new wiretap order every time he does so" (Brand). U.S. Code Title 18 had allowed investigators to do this -- but not FISA (Foreign Intelligence Surveillance Act) investigators. The Patriot Act opened up that opportunity.

The argument in favor of 206 comes from the Department of Justice itself, when it states that 206 "has proved to be an important intelligence-gathering tool in a small but significant subset of FISA electronic surveillance orders" (Brand). Like Section 215, it allows FISA access to "business records" -- but such records have also been defined to include personal records as well as granting FISA a non-disclosure requirement.

Here is where Max Weber's bureaucratic system comes into play: to make sure FISA does not abuse any more civil liberties than necessary, more Congressional oversight has been required -- which essentially means that more people are looking over the shoulders of those who are looking over the shoulders of…so on. Who is spying on whom now? Everyone is spying on everyone: welcome to the U.S.S.R.

Ironically, the title of Ryan Dawson's book is Welcome to the USSA. Dawson, an alternative media journalist and American expat living in Japan, has written and archived extensive reels of footage concerning 9/11 and the American foreign policy concerning Israel. According to Dawson, all signs have been pointing to war in the Middle East for years -- all on the behalf of the Israeli State. Dawson's argument is that just as it took the Maine to get the U.S. To back war against Spain, the Lusitania to get the U.S. into WWI, Pearl Harbor to get the U.S. into WWII, and the Gulf of Tonkin to get the U.S. into Vietnam, it took 9/11 to get the U.S. into Iraq -- not for oil, but for Israel (Dawson). At least that is Dawson's assessment. And -- Dawson continues -- it is precisely such things as the Patriot Act that keep the public keyed up to such an extent that they continue to applaud American "intervention" in the Middle East.