USA PATRIOT Act and Homeland Security: Core Challenges

Introduction: September 11 and the Security Recalibration

Since the attacks of September 11th — which felled the World Trade towers and left a gaping hole in the Pentagon — it has become almost a cliché to observe that the assault permanently altered American life. Whether this is an accurate sentiment or merely a self-fulfilling prophecy, it is evident that this allegedly profound recalibration of our lives is a product of the dichotomy created by the newly emergent threat to national security and the set of legislative responses thereto. With regard to that latter category, there remains a great deal of debate as to whether the former category is truly being addressed, or whether these new laws are in fact effecting changes separate from the conditions of our post-9/11 law-enforcement culture.

This perspective permeates Jonathan R. White's 2003 text on the subject, Defending the Homeland. The White text is a study in the reconfiguration of government that offers many of the technical details of a monumental shift in government orientation — a shift that would begin with the attacks of 2001.

By the time the smoke had begun to clear at Ground Zero, Congress had enacted the USA PATRIOT Act. A bulky piece of legislation fast-tracked through both houses of government without even an utterance of debate, its uncontested passage was highly contingent upon the circumstances of extreme political sensitivity and legislative uncertainty that accompanied the first month following the attacks. Its primary advocate, then-Attorney General John Ashcroft, succeeded in championing the bill through Congress with little more than an hour's testimony, which did not include submission to open questioning (Lewis, 1).

The PATRIOT Act: Passage, Powers, and Civil Liberties Erosion

In an atmosphere that vociferously discouraged any indication of dissent — which Democratic congressmen especially viewed as the pathway to public crucifixion in such emotionally charged times — the PATRIOT Act came into force on October 24, 2001. The Act was set forth with the proposed mission to "deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes" (107th Congress, 1). Entered into the American psyche as a weapon against those forces which would threaten national security, the legislation has since been under intense scrutiny for the tenuous nature of its passage and for its invocation of the apparent contrast between the drive to strengthen security and the Constitutional centrality of individual freedoms.

The PATRIOT Act awarded the United States government a broad range of newfound powers which its advocates claimed would diminish the legal restraints to law enforcement that had made it so difficult for agencies to prevent domestic terrorism. Of particular note to many private citizens has been the gradual breakdown of a set of protections to individual privacy. With government surveillance of domestic subversive activities taking center stage in the race to assign blame for the security shortcomings that allowed the attacks to occur, the PATRIOT Act is especially concerned with expanding the rights of intelligence agencies, local law enforcement, and the federal government to acquire information from and about American citizens.

With new laws deconstructing the structural processes already in place to regulate the acquisition of rights for telephone wiretaps, the willful seizure of personal information, and the investigation of individuals without probable cause, the United States government responded to the attacks on its people by directing its legislation at those who had already been victimized by terrorism. Even beyond weakening protections to individual privacy, the legislation extended "to the Internet the already broad authority to monitor transactional information about communications with very little justification" (CDT, 2).

In this set of responses to the terrorist attacks, the federal government began a process wherein Constitutional liberties became legislatively synonymous with a weak national security strategy. Advocates of the PATRIOT Act — a bill so named for indisputable reasons of image-shaping — used its conditions to blur the line between terrorist investigation and criminal investigation, and even lawful political dissent. In this last application, there is serious cause for alarm among defenders of the Constitution. The First Amendment to the Bill of Rights is directly assailed by the legislation, which, among its theretofore unthinkable entitlements, granted the government the right to review medical records, emails, library records, and other distinctly private effects as they pertain to "suspected" individuals (ACLU1, 1).

Essentially bypassing the probable cause clause which keeps criminal investigation under the control of due process, the PATRIOT Act is visibly adaptable to all manner of civil activity that could not traditionally have been considered associated with terrorism prior to September 11th. The result is a right to free speech, political resistance, and peaceable assembly that is dramatically blunted. It is notable that the PATRIOT Act is today most commonly implemented in investigations concerning immigration, drug trafficking, and — most nefariously — political dissent. In the face of controversial War on Terror initiatives such as the conflict in Iraq, protest and resistance movements have been stunted by laws and permit denials appropriated under the PATRIOT Act's emphasis on security.

This likewise accounts for the pointed withdrawal from the Constitution's Fourth Amendment. Again, another locus at which probable cause has been removed from consideration, the hazy definition of activity that can be deemed associated with terrorism can now be invoked to forego the investigative processes of criminal law enforcement. In direct contrast with the spirit of the Fourth Amendment, "the PATRIOT Act broadened the government's power to search an individual's home without telling her until weeks or months later, and to do so in any criminal case" (CDT, 2).

Among its many shortcomings, this is one of the most troubling. With the PATRIOT Act, the United States government has shown itself to be either unwilling or unable to separate terrorist activity from civil or criminal activity. This springs from the inherent flaw in the logical and practical underpinnings of the 2001 bill. Its twofold set of assumptions — that safety can only be preserved through the sacrifice of personal liberties, and that terrorism is the product of bureaucratic obstacles to law enforcement — both proceed from a faulty ideological premise that far predates September 11th.

In its forceful attainment of new authorities that have further removed it from the province of democratic process, the United States government has implemented legislation that may usher in a new era of sustained McCarthyism. With the "terrorist" label supplanting the "communist" label that was considered social, professional, and political anathema in the 1940s and 1950s, the PATRIOT Act is the first and broadest of post-9/11 tools for the extension of ideological hegemony in an age of highly charged philosophical division. Much like the witch hunt that McCarthyism engendered, the PATRIOT Act's impact on the Bill of Rights demonstrates a common flight of misdirection in our representative democracy. When nineteen foreign nationals hijacked four airliners and caused such carnage in September 2001, the government responded with legislation that aimed its power squarely at the rights of its own citizens.

While there are countless cases emerging daily illustrating the government's willingness to flex its muscle against political groups, religious organizations, and private citizens at home, it has yet to prove that these measures are providing the nation with any greater security. And as this war continues unabated, it remains to be seen whether this short-sighted surrender of liberties will contribute in any way to the long-term posterity of freedom.

The validity of the PATRIOT Act and like-minded policies — such as the shamelessly self-explanatory Total Information Awareness Act, which Congress refused to pass in 2004 — is extremely suspect. Particularly, in consideration of the details concerning the September 11th attacks, there seems to be little congruity between the domestic policy response and the actual administrative failings which enabled that breach to occur.

Pre-9/11 Failures and the Intelligence Deficit

It is especially illuminating to note the contrast between the indicators of security lapses which allowed September 11th to occur and the security directives thereafter adopted. There is a trail of active deviation from preventative security measures in the face of increasing intelligence indicators of a rising terrorist threat, as demonstrated by Ashcroft's unwavering pre-9/11 stance of counterterrorism fund-cutting:

"Justice Department documents released by American Progress reveal that in August 2001, the FBI specifically requested additional resources to bolster counterterrorism efforts. In response, Ashcroft actually cut counterterrorism funding in critical areas including equipment grants, border control, and the National Domestic Preparedness Office. . . [N]ew analysis reveals the 2002 counterintelligence budget proposed by Ashcroft cut counterintelligence spending by more than $476 million — a 23 percent decline from 2001 funding levels." (DTP, 1)

At this point — directly in the midst of rancor amongst intelligence officials demanding attention to an inevitably approaching al-Qaeda-masterminded attack of unprecedented magnitude — the Justice Department faithfully executed a Bush Administration security policy of de-emphasis. While the administration would later assert that it responded to concerns about possible hijacking threats by alerting 56 airlines and advising through the FAA that greater screening measures be adopted, its handling of incoming domestic intelligence was disinterested at best and suspiciously repressive at worst.

Surfacing evidence makes a strong case that actions taken directly by the administration were in fact contrary to the counsel of every sector of the intelligence world. In addition to stonewalling their own intelligence advisors about the swelling level of covert terrorist activity in the summer of 2001, the Bush Administration ignored indications from abroad that the threat of attack was imminent. "Egyptian President Hosni Mubarak said that in the weeks before the attacks, the Egyptian intelligence service warned U.S. officials of a possible attack by the bin Laden terrorist network, according to The New York Times. The White House, however, responded that the United States had no warnings at all." (Cover Story, 4)

While such a response is sharply juxtaposed with the above-outlined indications presented to the Bush Administration, this plea of ignorance is perfectly consistent with the administration's pre-9/11 security policy. In spite of all the warning signs, there is readily presentable documentation that the Bush Administration did not wish to make counterterrorism a priority. Attorney General John Ashcroft's May 2001 "budget goals memo" outlined his department's top seven priorities. Counterterrorism did not appear anywhere on the list. After 9/11, Ashcroft released a revised strategic goals memo in November 2001 that inserted a new priority at the top of the list: "Protect America Against the Threat of Terrorism" (DTP, 1).

While there had been no evident connection between the gradual progress in American civil liberties that had occurred over the previous decade of economic prosperity and the terrorist attacks of 9/11, the adoption of the PATRIOT Act as a means of preventing future vulnerabilities turned inward. The notion elicits little thought from many in the voting public, who are confined to receiving the bulk of information regarding 9/11 and its fallout from mainstream media sources. It is accepted that the world has indeed changed insofar as it is now more dangerous and that daily life requires more vigilance. American culture, which in the 1990s was regarded as a beacon in the international community for technological, corporate, and human rights progress, took on a far more bellicose and ideologically regressive outlook in the policy eventualities provoked by the attacks. But these changes are not the inevitable result of a terrorist attack on American soil. They are instead the self-fulfilling prophecy of an administration that demanded fear, blind faith, the willing suspension of disbelief, and extremely low expectations of its supporters.

Conclusion: Policy Divergence and the Future of American Freedom

In a period of two terms, the Bush Administration was responsible for a real change in the cultural climate and the future prospects of the United States. Both by way of the negligence which allowed September 11th to occur and by way of the tragically misappropriated power that saw its resultant policies into legislation, the Bush Administration will ultimately be the subject of incontrovertible reproach for its role in America's social, economic, military, and geopolitical decline. Thus, the Department of Homeland Security continues to struggle in the face of core problems: inherent tendencies toward the violation of American liberties, the sapping of resources from other core agencies, and the continued practical difficulties of achieving full operational capacity.

These challenges are not incidental — they proceed directly from a policy framework that was misaligned with the actual causes of the September 11th attacks from its inception. The PATRIOT Act and the broader War on Terror apparatus represent a sustained and consequential misdirection of governmental power. As this struggle continues, it remains to be seen whether this short-sighted surrender of civil liberties will contribute in any meaningful way to the long-term posterity of freedom, or whether it will stand as a cautionary example of democracy undermined in the name of its own defense.

Works Cited

107th Congress. (2001). United States Patriot Act, HR 3152 RDS. U.S. Congress.

ACLU. (2003). Surveillance Under the USA Patriot Act. American Civil Liberties Union.

ACLU1. (July 21, 2005). Senate Committee's Positive Steps on Patriot Act Welcome, But Flaws Remain. American Civil Liberties Union.

CDT. (2003). What's Wrong With the Patriot Act and How To Fix It. Center for Democracy and Technology.

Cover Story. (2004). The 9/11 Truth Movement: Widows Lead Growing Effort to Expose What the Government Knew. Long Island Press.

Daily Talking Points (DTP). (2004). Terrorism Not a Priority for Ashcroft Pre-9/11. Washington, D.C.: Center for American Progress.

Lewis, C. (2003). The Assault on Liberty (Continued): The Bush Administration Pushes to Expand the Patriot Act. The Center for Public Integrity.

Noftsinger, J.B., Newbold, K.F., & Wheeler, J.K. (2007). Understanding Homeland Security: Policy, Perspectives and Paradoxes. Palgrave Macmillan.

White, J.R. (2003). Defending the Homeland. Wadsworth Publishing.