The USA PATRIOT Act: Civil Liberties vs. National Security

Introduction: The PATRIOT Act and Its Controversies

The USA PATRIOT Act is arguably one of the most controversial pieces of legislation in American history. Many see it as a somewhat hysterical reaction to the 9/11 attacks — a response to a terrorist threat whose phantoms haunt minds rather than posing a clear and immediate danger to American safety and security. Indeed, some citizens have accused the government of deliberately targeting a specific sector of society through discriminatory detention and surveillance practices. As emotions and shock began to settle in the aftermath of September 11, 2001, both national and international outcry against the PATRIOT Act and its accompanying erosion of constitutional liberties grew increasingly intense.

It is, however, notable that President George W. Bush — the instigator and presiding executive over these practices — was not removed from power. It is equally notable that, despite widespread outcry, the PATRIOT Act II, guaranteeing an even greater infringement upon the Constitution, was subsequently approved. Many criticisms center on the fact that the PATRIOT Act conflicts with the rights and freedoms guaranteed by the American Constitution and the Bill of Rights. A substantial body of literature has since examined what these pieces of legislation mean for the American people in the wake of the devastating attacks of 9/11.

Government Power and Public Trust After 9/11

In response to what many regarded as the troubling legal aftermath of 9/11, civil libertarian organizations such as the American Civil Liberties Union (ACLU) mobilized to advocate for the rights of citizens against a government perceived as abusing its power. These organizations produced both online and offline materials advocating for civil rights. According to this perspective, not only the United States but other Western nations as well were sacrificing genuine freedom in favor of the illusion of safety (Etzioni, 2004).

Another group of citizens — apparently a majority in the United States at the time — felt that some sacrifice of freedom was not too great a price for a sense of safety. This group placed its trust entirely in the United States government, believing it was acting in the best interest of the country and its citizens.

Nonetheless, according to Etzioni (2004), dissenters focused on the government's prioritization of security over basic rights such as equality, and on the removal of checks and balances governing surveillance and detention. Among these dissenters was the press, whose freedoms were implicated in the government's new legislative paradigm. As noted by Wendy Kaminer in The American Prospect and cited by Etzioni, granting the government unchecked power diverts attention away from terrorism itself. The focus shifted instead to domestic dissenters and immigrants, rather than to safeguarding the country's borders against further attacks of the kind perpetrated on 9/11. Under the guise of protecting the public, the government was directing its efforts toward monitoring and harassing immigrants and legal citizens who bore no ill will toward the country.

Another tender issue was the war in Iraq, in which thousands of innocent people died for what many regarded as a hidden governmental agenda — not to fight terrorism per se, but to seize the country's oil resources. In the name of this agenda, or in the name of fighting terrorism, thousands of American and foreign lives were lost. Because of this, many Americans and international observers began to feel that the United States no longer adhered to its fundamental principles of freedom and the democratic values upon which the country was built.

The Effect of 9/11 on Constitutional Rights and Democracy

The question of democracy is also addressed by Etzioni (2004). Considering historic events such as the fall of the Weimar Republic and the rise of Nazism, Etzioni argues that in cases like Germany the focus was on the development of non-existent democracy, whereas in the United States the concern is the loss of an existing one. Etzioni takes a relatively optimistic view, arguing that an established democracy is almost never lost through internal developments alone, even those as serious as those faced by the United States post-9/11.

Etzioni goes on to address possible definitions of democracy, noting that the term may encompass a wide variety of meanings depending on the paradigm under which a given society operates. For some countries, democracy may mean no more than regular elections. In the context of the United States, democracy must be defined according to the standards that have evolved over the nation's history. These include regular transfers of power, multiple political parties, checks and balances among branches of government, and courts that protect individual rights. They also include freedom of the press, freedom of religion, and the freedom to practice one's religion or culture without government interference. In short, American democracy means that constitutionally guaranteed rights apply to all Americans, regardless of ethnic or religious heritage — a standard that was not upheld following the 9/11 attacks.

The meaning of the Constitution and the Declaration of Independence is also addressed by Robert Hole (2001). According to Hole, Thomas Jefferson created the Declaration within the context of his own time and its specific concerns. Hole references slavery, which was still rampant during Jefferson's era — the President himself was economically dependent on it. Yet Jefferson created a document asserting that all persons are equal, with the implicit provision that "all" referred to white property-owning men. Hole's book was published in 2001, itself a year of political upheaval in which paradigms relating to rights and equality were again in flux. Rather than negroes, women, and other minority groups, it was now the rights and liberties of an entirely new set of people being sacrificed in the name of "protecting the American way of life" by eradicating terrorism preemptively.

Hole asks readers to consider the time and context in which laws were created. The paradigm of slavery can hardly be applied to the Constitution today, just as Jefferson cannot be solely blamed for slavery given the dominant ideologies of his era. Should one therefore revise criticism of the PATRIOT Act? When seen in this light, one might argue that the contemporary threat of terrorism should be kept in mind when defining democracy and equal rights. If Hole's premise were followed, one might argue alongside the government that certain rights need to be temporarily suspended to guarantee national safety.

The difference between these situations is, however, significant. As Etzioni (2004) makes clear, democracy and its accumulated definitions cannot be nullified even in the face of a terrorist crisis. Democracy in Jefferson's time was defined in a particular way; in the 1950s it evolved further. Democracy as it is understood today is the product of centuries of evolution from Jefferson's era — a process that cannot be reversed. It means the same thing it meant seven, eight, or ten years before 9/11: no person should be discriminated against on the grounds of religion, gender, ethnic heritage, or any other distinguishing characteristic. This standard is not upheld under the PATRIOT Act.

The PATRIOT Act grants the government the right to implement surveillance and detention against any person it regards as dangerous or terrorism-oriented. Because the 9/11 attacks were perpetrated by Arabs and Muslims, the federal government has since presumed that people fitting the same profile — regardless of years of residence in the United States or demonstrated loyalty to the country — are more likely to perpetrate terrorist acts. The government uses this as an excuse to disregard legal and civil rights that such citizens previously held.

Ethnic Profiling, Detention, and the Presumption of Innocence

Under the PATRIOT Act, the government has created profiles of people it regards as high-risk with respect to terrorism. These individuals are targeted for random surveillance and questioning. Some have been detained for extended periods without being informed of the reason for their detention or when they might be released. Conditions at airports are similarly troubling: some airlines have refused to allow Arab passengers to board based solely on their ethnic heritage and their perceived connection to terrorism.

One important issue frequently overlooked is that many white citizens have joined the Al Qaeda cause, yet these individuals are largely ignored in favor of targeting innocent people based on skin color. This is plainly incompatible with democracy, and the diminishment of equal rights does not guarantee safety when the targets of such practices are, in most cases, innocent.

The issue of ethnic profiling and post-9/11 prosecution is addressed in depth by Nancy Baker (2003). According to Baker, the presumption of innocence — the foundational legal principle that a person is innocent until proven guilty beyond a reasonable doubt — has been effectively suspended by the PATRIOT Act, particularly as it applies to young Muslim and/or Middle Eastern men. This constitutes a clear case of discrimination on the basis of ethnic heritage, religion, and age.

Immediately after the attacks, 1,200 foreign nationals were detained under the presumption that they were national security threats or material witnesses. This was a clear violation of First Amendment protections against discrimination on the grounds of ethnic heritage, religion, or age. The detained persons had committed no crime that warranted such treatment. This action reflects the hysterical gut reaction described above: people were summarily presumed guilty, effectively reversing the constitutional standard so that those fitting a certain profile were treated as guilty until proven otherwise.

According to Baker (2003), Attorney General John Ashcroft and other officials detained these nationals on suspicion of minor offenses while publicly positioning them as suspected terrorists. Ashcroft and his associates justified their actions by claiming they were keeping suspected terrorists away from innocent American citizens as a matter of prevention. The Department of Defense subsequently adopted a policy of preventing future terrorist attacks rather than investigating past ones — focusing on potential future attacks through profiling, assumption of guilt, surveillance, and harassment, all of which are directly contrary to the Constitution and the Bill of Rights. Rules related to detention of suspected terrorists stipulated that they be either deported or charged with a criminal offense within seven days.

Further measures targeting nationals from Arab and Muslim countries included interviewing 5,000 such individuals in the months following the attacks (Baker, 2003). Although plainly coercive, Ashcroft denied the coercive nature of these interviews. In 2002, thousands of Muslims and Arabs were required to report to Immigration and Naturalization offices, where they were questioned, fingerprinted, and photographed. The first immigrants to report in California were arrested en masse.

After the beginning of the war in Iraq, persons from Muslim countries seeking asylum in the United States were imprisoned on the grounds of suspected political infiltration — ostensibly to determine whether they were genuine asylum seekers or terrorists in disguise. This determination was made on no stronger basis than the fact that the asylum seekers originated from countries with a known terrorism presence. This action is directly contrary to the Constitution and to the American tradition of welcoming foreigners in need of asylum. It is as though the very country known for its democratic and civil rights had transformed into a despotic environment that presumes terrorist activity based on ethnic and national heritage alone, placing the burden of proof on the accused rather than the state.

The inherent danger in this trajectory is that emotions could escalate further. Spokespeople for the Muslim community have commented on how all Muslims became suspects following the terrorist attacks. Such targeting also severely damages American-Islamic relations. When Muslims are singled out, mistrust grows on all sides, and the conflict ceases to be purely external — against terrorism — and becomes internal and civil, with citizen turning against citizen.

Conclusion: Democracy Under Threat

Despite arguments to the contrary — that officials are merely attempting to safeguard the country against further attacks like those on 9/11 — the PATRIOT Act does not in any meaningful way discourage terrorist activity. The only effect it has is filling American citizens with fear and resentment, not only against the government but also against each other. This is not only contrary to the letter of the Constitution and the Bill of Rights, but also contrary to the very principles for which the country stands and has stood since the drafting of those founding documents. One might argue that Jefferson owned slaves when he drafted the Constitution, but one might equally argue that the Civil War existed precisely to rectify that contradiction. Because of the Constitution, Black citizens, women, and all other groups were eventually able to pursue not only liberty but also happiness under the rule of law.

The freedoms and liberties guaranteed under the Constitution are basic human rights. No perceived threat of terrorism should ever be so great as to grant the government absolute power of prosecution. No terrorist threat justifies the presumption of guilt of all persons from a particular ethnic group or religion. The PATRIOT Act can therefore be seen as an even greater threat to American values than terrorism itself.

Sources

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