A close examination of the Patriot Act, which this paper achieves more so than members of Congress prior to voting, confirms that those that champion civil liberties as such are justifiably alarmed. It was quickly accepted by Congress just a month and a half following the September 11 attacks. Pressure to pass anti-terrorism legislation prevailed over the need to understand what the 342 page Act entailed and the Act became federal law in October of 2001. Provisions of the Act violate the Constitution and tear down the freedoms for which true patriots have fought and died.
In the years following 9/11, the president and members of his administration unashamedly did as they pleased without regard for congressional, public or constitutional approval. It justified the suspension of Habeas Corpus, eavesdropping on telephone calls of U.S. citizens, torture tactics on ‘detainees’ and the invasion of Iraq. The administration not only broke U.S. laws but U.N. regulations and the Geneva Convention guidelines as well. One example is the Military Commissions Act, which “presumed to deny the right of habeas corpus to any non-citizen designated as an enemy combatant.” (American Justice, 2007) “The people who perpetrated these horrendous crimes against our country and our people have no moral compass and deserve to be prosecuted to the full extent of the law, but by taking away their legal rights, we are jeopardizing our own moral compass as well.” (Senator Dodd, 2007) This Act is but one example of a continuing authoritarian, totalitarian and some would argue treasonous breech of power has far-reaching consequences, not only for the battle for control in Washington D.C. but also in the way it affects the liberties that people enjoy both here and abroad. The enacting of the PATRIOT Act initiated this avalanche of legislation that has eroded civil liberties.
Most Congressmen admit to not have reading the PATRIOT Act before voting to pass it but those voting in favor were overwhelming. Only one of 99 Senators (Wisconsin Senator Russ Feingold) and 66 of 423 Representatives voted against the law. The Act, as many citizens and legal experts alike have argued, violates the fundamental rights guaranteed by the U.S. Constitution’s first ten amendments, the Bill of Rights (Savage, 2006). This includes the freedom of speech and assembly (First Amendment); the freedom from unreasonable search and seizure (Fourth Amendment); the right to due process of law (Fifth Amendment); the right to a speedy, public and fair trial along with the right to counsel and to confront the accuser, (Sixth Amendment), the freedom from cruel and unusual punishment (Eighth Amendment) and freedom from punishment without conviction (13th Amendment). (Sinnar, 2003).
One of the most obvious tactics in the ‘War on Terror’ and the PATRIOT Act is the widespread use of racial profiling, described as when law enforcement officials use race, ethnicity, religion and even color of skin to determine which persons are more probable to commit a crime such as terrorism. “Although the government enacted the USA PATRIOT Act to ‘protect’ U.S. Citizens, one wonders which citizens they had in mind.” (Mettert, 2003) The term ‘War on Terror’ has been continually invoked to justify breaches of the Constitution as well as the basic civil liberties of citizens and foreigners alike. The invocation of this phrase has repeatedly prohibited rational discussions regarding civil injustices such as profiling individuals based on their race. Therefore racial profiling has continued unabated including the profiling of young black men since September 11, 2001. The not-so-subtle insinuation is that “one cannot condemn racial profiling because to do so will hinder the war on terrorism and undermine national security” (McDonald, 2001).
The popularly stated position is that racial profiling is necessary because not using this tool of law enforcement would compromise the effort against terrorism thus sacrificing national security. This argument is fundamentally flawed because it erroneously presupposes that racial profiling an essential element of this emotion-evoking endeavor. However, the reverse is accurate. Profiling, as a tactic employed by law enforcement, redirects important assets, estranges and enrages prospective allies and, most importantly, is contradictory with the uniquely American concept of equality and freedom. Undoubtedly, if profiling in the name of terrorism has not been proved effective, the profiling of black citizens in the name of ‘getting tough on crime’ is not effective as well and causes more harm, ultimately, than whatever good may come of it. “Racial profiling in any manifestation is a flawed law enforcement tactic that is in direct conflict with constitutional values” (McDonald, 2001). It is important at this point to note that feelings of mistrust and suspicion aimed at Arabs or Muslims as well as blacks or Hispanics with regard to racial profiling by law enforcement officials is infrequently motivated because of blatant racism. Instead, the motivation stems from the anxiety and uncertainty surrounding the 9/11 attacks and the fear of future terrorist actions, a widespread phobia which has been fueled by a federal government so as to further its own agenda.
Libertarian organizations such as the Civil Liberties Union claim that the Bush administration has a proclivity for secrecy and rejects the concept of transparency. The PATRIOT Act has reproved its agenda for the “outright removal of checks and balances” (Etzioni, 2004: 9). Conservatives are alarmed as well including former Republican Representative Bob Barr, who is best known for leading the attempt to impeach President Clinton. Barr had led a group named “Patriots to Restore Checks and Balances” which focused solely on challenging the renewal of the Patriot Act in 2004 (Lakely, 2005). This multifaceted PATRIOT Act modified numerous laws including the Family Education Rights and Privacy Act, Right to Financial Privacy Act, Fair Credit Reporting Act and Immigration and Nationality Act among many others (Electronic Privacy Information Center, 2003).
The PATRIOT Act was enacted in response to the 9/11 attacks and as a tool against terrorist threats. The right wing has actively advocated subverting the rights contained in no less than five of the first ten amendments (the Bill of Rights) to, as they claim, ‘protect’ citizens from terrorism. The name itself, the PATRIOT Act is an acronym for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism. The label for this law was cleverly designed and packaged to enlist broad support from a nation that is generally vulnerable to patriotic propaganda but even more so at the time that it was so swiftly enacted. Citizens and legislators were all too eager to submit to the rhetoric that suggested that sacrificing a certain amount of freedom was a small price to pay for security.
According to the Justice Department, the PATRIOT Act gives support to and encourages enhanced sharing of information among various law enforcement agencies at the local, state and federal levels. In addition, this law assists law enforcement in their efforts to ‘connect the dots’ from a wider scope of agencies when assembling evidence so as to develop a ‘complete picture’ regarding possible threats from terrorists (Ward, 2002). The PATRIOT Act gives law enforcement more latitude when attempting to intercept transmissions of ‘suspected terrorist’s’ discussions via electronic surveillance. Agents of the government can now secretly tap into any citizen’s phone calls or internet communications including all visited web sites (Rackow, 2002). Additionally, the Act increased border security funding and allows the Attorney General to disburse monetary rewards to those individuals and entities such as municipalities that have enjoined the fight against terrorism. Furthermore, it provides financial support for the training of first responders such as firefighters. Finally, the PATRIOT Act permits government agencies power to delay notification of search warrants, “which (is) a long-existing crime-fighting tool upheld by courts nationwide for decades in organized crime, drug cases and child pornography” (US Department of Justice, 2005).
Critics of the Act suggest that is in contradiction to the tenants of the First Amendment. As an example, a citizen can be identified and treated as a terrorist if they are a breaking federal law such as trespassing on public property during a protest when a federal official is injured, not by that person but simply injured during the protest. This allows any person who was exercising their constitutional right of free speech to be arrested and detained indefinitely without benefit of legal counsel, a violation of the Fifth Amendment. Though the Justice Department disagrees with this assessment of the Act, it is conceivable that a person could be prosecuted as a terrorist if that person played a part, however unintentionally, or is present while another person is injured while making a political statement. The Justice Department insists that individuals cannot be arrested if they are involved in a peaceful protest. The Department claims that domestic terrorism regulations instituted by the PATRIOT Act “is limited to conduct that breaks criminal laws (which results) in death and was committed with the intent to commit terrorism” (Ward, 2002). The ‘intent to commit terrorism’ is an ambiguous phrase open to wide interpretation as are many aspects of the Act which causes many to question to what extent civil liberties are affected by it. The dispatching of the due process of law has been the most visible of the civil liberties that have been curtailed by the Act. The reason is that due process is not only an individual right in the U.S. but when this right is violated, it results in the immediate and horrendous perpetuation of human suffering as well.
While that Act was being formulated, The Justice Department requested that it contain provisions which allowed the Department to detain suspects indefinitely without having been charged with a crime. The Act, in its final version, allows for an individual to be detained for an indefinite time for violating a slight technicality of an immigration law. If the suspect for whatever reason cannot be immediately deported because, for example, they are legally in the country but had an insignificant flaw in their documentation, that individual can literally be lawfully detained for life. The attorney general simply must certify once every six months that this person is a ‘threat’ to national security (“U.S. Detention”, 2002: 472).
The words of Benjamin Franklin, described in the following paraphrased quote, ‘those that give up liberties for safety deserve neither,’ were obviously disregarded by the proponents of the Act. As an illustration of the scope and magnitude of this problem, a Wall Street Journal story reported that seven congressional Democrats filed a request from the U.S. Attorney General so as to ascertain the status of more than a thousand detainees in federal facilities. The request was granted after the congressmen cited the Freedom of Information Act. According to the report obtained by the lawmakers, detainees are denied access legal representation, suitable nutrition or safeguarded from physical attacks (Levy, 2001). Some had been kept confined to solitary confinement though they had not been formerly charged with a crime. Numerous detainees of Arab decent were allowed one phone call attempt to an attorney per week. However, if they could not reach their counsel, they could not call back until another week had passed. In addition, citizens are denied their right of due process by the Act. They can be forcibly detained and refused access to an attorney with no evidence being supplied by which to justify this previously illegal action. This treatment is a clear violation of the Fifth Amendment right to due process of law. Though the Guatanemo detainees were not U.S. citizens and not entitled to such constitutional protections, many wonder how the country will be perceived by those it hopes to convert to American style democracy if it doesn’t apply its own rules to all persons. The arguments given by those in favor of the Act are easily reasoned and justified but it is clear that the war on terror the U.S. is waging has caused irreparable damage to the civil liberties formerly guaranteed by the Constitution. (American response, 2002).
According to President Bush, “The Patriot Act defends our liberty. The Patriot Act makes it able for those of us in positions of responsibility to defend the liberty of the American people. It’s essential law” (Allen, 2004). Paul Rosenzweig, a senior legal research fellow at Heritage is convinced that Ronald Reagan, the champion of modern-day conservatism, would support the PATRIOT Act. “I’ll put it this way, Ronald Reagan would be for the Patriot Act. And I know that because his former attorney general, Ed Meese, is for the Patriot Act” (Lakely, 2005). According to conservatives such as Rosenzweig, the Patriot Act poses no threat to civil liberties because it “has all the checks and balances on police authority that has been around for years” (Lakely, 2005).
Liberals do not hold a similar innocuous opinion of the PATRIOT Act. They believe it represses freedoms for the sake of security. Essentially, classical liberalism is a deeply held conviction in the concept of personal liberty. They hold closely to the words in the Declaration of Independence that refer to life, liberty and pursuit of happiness being inalienable rights. In the time of the country’s founding and today as well, the majority of people think that their individual rights emanates from government decree, that the rights they enjoy are contingent upon what the government decides to allow. But liberals follow the philosophy of John Locke, a Britain who lived at the time of the American Revolution. He argued that it quite the opposite. Citizens have natural rights that the government cannot bestow or take away. The people create the government and can make a new one if the situation warrants. Constitution never bluntly states the right to privacy it suggests privacy through the Bill of Rights, embedded in the Fourth Amendment which guarantees government agencies no interference with personal effects of the people or unreasonable search and seizures. Section 203 of the PATRIOT Act allows law enforcement officers to give CIA with no court order information received through a wiretap or internet tap. Agents of the Government can now secretly tap into any citizen’s phone calls or internet communications including all visited web sites. If directed by the Justice Department, police officers can enter people’s homes without benefit of a warrant and even seize their belongings and not ever have to inform the homeowner of the search. Individuals as well as religious and political organizations can legally be spied on by law enforcement agencies whether or not those agencies can produce any evidence a crime has or is planning to be committed. Section 215 allows for library records to be scrutinized by more efficient means by government officials. Section 213 of the PATRIOT Act allows the FBI’s to obtain a warrant and search residence without notifying occupants, if it is an issue of ‘national security.’ No longer does law enforcement officials need to show ‘probable cause’ to obtain a search warrant, ‘probable suspicion’ is enough. Judges can authorize these investigations if they believe that it might prevent another terrorist attack (Goodman, 2005).
Proponents of the PATRIOT Act are quick to point out that government intrusions into the private lives of citizens such as wiretapping and accessing records have not produced any substantiated allegations of abuse of power by the government. Abuse, according to the Bush administration, is the illegal use of surveillance information, for example, to blackmail an individual or to document the conversations of an ex-wife. Collecting data on innocent people, according to an official of the Justice Department, Jeffrey Breinholt, “does no harm unless someone decides to act on the information, put you on a no-fly list or something. Only a serious error could lead the government, based on nothing more than someone’s bank or phone records, to freeze your assets or go after you criminally and you suffer consequences that are irreparable. It’s a pretty small chance” (Gellman, 2005). The Bush administration’s explanation of abuses of power relating to provisions of the PATRIOT Act misses the point, however. What bothers critics is the concept of government officials routinely intruding into the lives of private citizens. The power of intrusion is the abuse, an abuse of Constitutionally guaranteed civil liberties. Former conservative congressman Barr said “the abuse is in the power itself. As a conservative I really resent an administration that calls itself conservative taking the position that the burden is on the citizen to show the government has abused power, and otherwise shut up and comply” (Gellman, 2005). Jameel Jaffer, an attorney for the ACLU, agrees with this conservative viewpoint which gives the argument against the Act credibility because the two, the ACLU and conservatives are generally on opposing sides of most issues. Jaffer believes that First Amendment rights are suffering a “profound chilling effect” from the government’s use of surveillance techniques. “If the government monitors the Web sites that people visit and the books that they read, people will stop visiting disfavored Web sites and stop reading disfavored books. The FBI should not have unchecked authority to keep track of who visits al-Jazeera’s Web site or who visits the Web site of the Federalist Society” (Gellman, 2005).
Congressional representatives and the Bush administration have put the burden of proof on the public that provisions within the PATRIOT Act leads to abuse of power. The proof is obvious and it is the responsibility of every patriotic citizen to inform the citizens in their area but their representatives in Washington as well.
Wadsworth Publishing conducted a survey of experts in the field of criminal justice. According to its findings, 95 percent believed the PATRIOT Act was passed without the thoughtful consideration of the impact this legislation had on public policy. Most, 74 percent, responded that the PATRIOT Act violated the rights of individuals and a large percentage of these felt that laws already on the books, if implemented, could adequately and equally protect the country from terrorism (Thompson Wadsworth, 2003). One can surmise from these findings that those experts surveyed supported the government’s endeavor to protect the nation from future terrorist attacks but also felt that the Act is a threat to the nation’s freedoms. Many of the provisions it contains are inconsistent with the Constitution specifically the First, Fourth, Fifth, Sixth Eighth and 13th Amendments, the violation if the First Amendment arguably the most egregious.
Though congressmen did not fully realize what they were passing in the rush to give the appearance of action in the wake of 9/11, they have had ample opportunity to examine it since that time. These legislators and those in the Bush Administration which initially proposed the Act certainly must realize that, though they justify it in the name of national security, the Act impedes the freedoms that many have sacrificed their lives to protect. Ironically, the Congress and President, rather than tempering the deviating portions of the Act, promoted the legislation as a united declaration of PATRIOTism. It was a deplorable sales technique that is rightly vilified by conservative and liberal Americans alike. However, many citizens have been scared by the threat of terrorism to the point that they are willing to give up liberty for security, a sad testament to the legacy of the founding fathers.
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