The Patriot Act was passed after the 9/11 terrorist attacks to strengthen domestic security and increase the ability of the government to identify and stop terrorists. It has proved to be one of the most controversial laws in U.S. history (Doyle, 2001). It is comprised of ten titles which give federal law enforcement greater authority. Advocates claim that the Patriot Act is constitutional and instrumental in the war on terror. They cite a number of successful investigations and arrests of terrorists, and believe that law strikes an effective balance between civil rights and the ability of the government to protect its citizens (Franklin, 2004, p. 93). Critics believe the act gives the government carte blanche to trample civil liberties and undermines the ideals of the democracy it seeks to protect. They focus on the Fourth Amendment of the U.S. Constitution , which does not allow the government to invade a citizen's privacy without probable cause. The recent admissions that the federal government is monitoring telephone and Internet activity has many American rightfully worried. The American Library Association (ALA) Council concluded that the Patriot Act is “a present danger to the constitutional rights and privacy rights of library users” (Dell, 2002, p. 80) Civil rights activists accuse the government of illegally detaining individuals who “may be guilty of nothing more than being born in the Middle East” (McCarthy, 2002, p.435). The Patriot Act's name has even been controversial. Opponents believe the government picked the named to discourage dissent by implying that it would be unpatriotic However, even rudimentary analysis of the ten sections of the Patriot Act makes it clear it was created with one goal in mind – to effectively prosecute the war on terror.
The Patriot Act is a powerful tool. It gives the government sweeping power to retrieve and share wire and electronic communications, change immigration laws, create new federal crimes and penalties, restructure federal money laundering laws, and adjust existing federal criminal procedure. It also authorizes financial appropriations to enhance the overall war on terror (Doyle, 2001). Furthermore, there is substantial bipartisan support for the Patriot Act. Republican President George Bush Jr. signed the act into law, and Democratic President Barack Obama confirmed the government’s commitment to the war on terror by signing the Sunsets Extension Act of 2011, a required four-year extension of three key provisions. (Haydon, 2013, p.117) Leading Democratic Senator Harry M. Reid has also emphasized its importance:
The raid that killed Osama bin Laden also yielded an enormous
amount of new information that has spurred dozens of investigations
yielding new leads every day. Without the Patriot Act, investigators
would not have the tools they need to follow these new leads and
disrupt terrorist plots, needlessly putting our national security at
risk” (Reid, 2013).
The full title of the Patriot Act is Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Doyle, 2001). It is divided into 10 sections. Title I begins with the protection of civil liberties, authorizes federal expenditures and authorizes the creation of a nationwide electronic crime task force. This section also gives presidential authority to confiscate property of foreign individuals. (Doyle, 2001). Title II is primarily about wiretapping. It defines and expands the ability of law-enforcement agencies to conduct surveillance on foreign enemies. It legalizes interception of terrorist related communications. Importantly, it allows roaming surveillance. (Doyle, 2001). Before the Patriot Act, a court order only authorized a wiretap on a single line in one location. Today, the government can wiretap an individual on multiple lines and sources, in multiple locations. This was seen as necessary in an increasingly globalized landscape of law enforcement. It also allows the government to order information from communication providers, like internet service providers and mobile phone companies. It also increased the government’s ability to search homes and properties when the suspect is not present. Title III covered the seizure and elimination of terrorist’s money supplies and Title IV strengthened border security. Title V contained a highly controversial new power involving National Security Letters (NSL) (Doyle, 2001). An NSL is an investigative demand for the release of information about a person under investigation. The new law allows them to be used against American citizens and is not required to inform the target of the NSL. Furthermore, there is no judicial approval or requirement for probable cause when an NSL is requested and issued. (Doyle, 2001). Titles VI-X contain more minor provisions, adds several crimes to the list of acts considered to be terrorism, and covers increased cooperation between law enforcement agencies (Doyle 2001). The Patriot Act is long but not confusing or ambiguous. In fact, one of the main goals of the document was to delineate laws and powers to maintain and protect civil rights. The delicate balance of protecting homeland security and national interests abroad with maintain civil rights, a benchmark of democracy, has been difficult. The opponents of the Patriot Act have it relatively easy, because very few Americans appreciate intrusive or X government surveillance of any kind.
The Patriot Act has been viewed by some with animosity and suspicion for a number of legitimate reasons (McCarthy, 2001, p. 435). It was passed in one month, after an emotionally devastating national tragedy. Congress spent very little time debating it and many questioned if most congressional representatives even read the act (McCarthy, 2001, p. 235). There was intense political pressure to respond to the attacks of 9/11, so there may not have been an open and effective debate or discourse over the Patriot Act. (McCarthy, 2001, p. 436). Many critics think that a piece of legislation that changes the framework of government deserved more thorough deliberation (Franklin, 2004, p. 94). Others believe it has deprived Americans some of their basic constitutional rights - such as freedom of speech and freedom to be secure in possessions - that were promised to them in the Constitution. (Mell, 2002, p.80). These inane rights make up the philosophical and political identity of the United States. Ideally, it is the government’s responsibility to protect our innate rights, but they must do this within a larger context of national security. Finally, a major constitutional argument against the Patriot Act is it has bypassed checks and balances that were deliberately created by the original patriots – the founding fathers.
Instead of analyzing the Patriot Act in a balanced political context, based on a modern and evolving national security threat, opponents of the law focus on a few issues such as the authorization of indefinite detentions, the permission to search a home or business without consent or knowledge and the expanded access of law enforcement agencies to business records, including library and financial records (McCarthy, 2001, p.23). The delicate landscape of civil rights and national security the Patriot Act tries to navigate has been analyzed in federal courtrooms across America. Since its passage, several legal challenges have been brought against the act, and Federal courts have ruled that a number of provisions are unconstitutional (Whitehead, 2001, p. 181).
The Patriot Act has also been hotly debated in Congress. Some congressmen on both sides of the political spectrum “deplore the government’s use of wiretapping and other forms of electronic surveillance, while others consider it unfortunate, but necessary to effectively control crime and gather intelligence” (Whitehead, 2001, p.181). The feeling that the Patriot Act is an invasion of privacy is a subjective one. Individuals evaluate privacy differently, some may find internet surveillance Orwellian, others may think it’s a necessary evil, while others might not care at all. Nevertheless, electronic surveillance is both constitutional and necessary. In “an ideal world a government would be able to ensure its citizens an unqualified right to privacy, while still flawlessly providing for their safety. However, in an ideal world there would be no terrorist threats to the United States” (Haydon, 2013, p. 117). The government is in the unfortunate and almost impossible situation of trying to protect both freedom and security to its people. They may not be mutually exclusive, but policies that catch bad guys, can also infringe on the rights of innocent people. As a society, Americans will decide how much freedom is worth sacrificing for security. Benjamin Franklin’s famous quote “Those who surrender freedom for security will not have, nor do they deserve, either one” is frequently used by critics of the Patriot Act.
In “Big Brother at the door: Balancing national security with privacy under the USA PATRIOT Act”, Patricia Mell analyzes the Patriot Act using George Orwell’s dystopian classis 1984 as a framework. She focuses on the growing intrusion of the government in American’s lives, and compares them to the draconian political system in 1984, where a facist Big Brother is monitoring the population “for their own safety” (Mell, 2002, 90). Analyzed through this perspective, the Patriot Act does seem ominous. For example, each year since its creation in 2001, the FBI has forced telephone companies and internet service provider to provide sensitive information on anywhere from 16,000 to 50,000 people (Mell, 2002, 93). Mell cites American Civil Liberties Union (ACLU) statistics that out of 143,000 NSL’s, 17 criminal referrals were for money laundering, thirty for immigration and fraud, and none for terrorism (Mell, 2002, 9.105) There is also a lack of transparency that worries many privacy advocates. Additionally, a lack of judicial review, very little oversight or accountability and recent leaks such as WikiLeaks and the Snowden scandal has highlighted the problems with unlimited electronic surveillance. There are also fears that the law will be inappropriately used against non-terrorist criminals. According to Mell’s research, the Patriot Act has been used to relocate homeless people from public spaces, pursue narcotic rings and to harvest financial data on random visitors to Las Vegas (Mell, 2002, p.101). Mell makes good points, but neglects to mention the Patriot Act has been shown to be constitutional. According to the parameters set forth by the Constitution and various congressional and judicial acts, electronic surveillance is legal, provided that proper procedures are followed (McCarthy, 2002, p. 435). It may not be pretty, but “it is the only means to gather the information that is essential to the preservation of national security.” (Whitehead, 2001, p. 58).
The need for the Patriot Act is an unfortunate but necessary reality. Homeland security is a new institution and faces enemies, both foreign and domestic, that are technologically savvy, racially and socioeconomically diverse, and savvy at exploiting weaknesses that are inherent in a government that was founded on freedom, liberty and privacy. It is easy to pick apart institutions and legislation that was created in the face of terrorist threats and a changing geopolitical world. WWII, Vietnam, Korea and the Cold War were fought against a distinct and easy to recognize enemy. Today the enemy could be anyone, anywhere. As a result of the reality of this new threat, Americans must balance their desire for freedom with security. Most importantly in terms of U.S. governmental objective, the Patriot Act has worked; there has not been a successful terrorist attack on U.S. territory since the act was signed into law.
.
References
Doyle, C. (2001). Terrorism: section by section analysis of the USA PATRIOT Act.
Congressional Research Service, the Library of Congress.
Franklin, B. (2004).The PATRIOT Act. The Ethical Imperative in the Context of Evolving
Technologies, 93.
Hayden, M. (2013). The Patriot Act. BYU Prelaw Review, 27, 117-127.
McCarthy, Michael. (2002) “Recent Developments: USA Patriot Act”. Harvard Journal on
Legislation. 39(Summer 2002): 435-6.
Mell, P. (2002). Big Brother at the door: Balancing national security with privacy under the
USA PATRIOT Act. Denv. UL Rev., 80, 375.
Senator Harry Reid. (n.d.). Retrieved November 23, 2014, from
http://www.reid.senate.gov/page/109?post_type=press_releases
Whitehead, J. W., & Aden, S. H. (2001). Forfeiting Enduring Freedom for Homeland Security: A
Constitutional Analysis of the USA Patriot Act and the Justice Department's Anti-
Terrorism Initiatives. Am. UL Rev., 51, 1081.
