Three of the Acton Institute’s core values are dignity of the person, the rule of law and the subsidiary role of government. The Patriot Act, passed in 2001, violates these fundamental principles.
In the United States and elsewhere, freedom and protection against unreasonable government intrusion have been considered essential to a democratic society. Near the start of the American Revolution, the Founding Fathers and the American colonists had grown tired of English interference. A particularly inflammatory usage of law was “the British government’s illegitimate use of authority… using “writs of assistance” – general warrants that granted revenue agents of the Crown blanket authority to search private property at their own discretion.” This allowed British government officers to enter someone’s home, with little or no legal oversight, and do as they pleased.
This historical background is important to a discussion of the Patriot Act “because the purpose of the Fourth Amendment was not just to protect personal property, but ‘to curb the exercise of discretionary authority by [government] officers.”
Now, unfortunately, the United States is mimicking the colonial British government with the Patriot Act’s regulations. The law has given “the executive branch broad and unprecedented discretion to monitor electronic communications and seize private records, placing individual liberty ‘in the hands of every petty officer.”
How did such an act pass through Congress?
In 2001, “just 45 days after the worst terrorist attack in history, Congress passed the Patriot Act, a 342-page bill amending more than a dozen federal statutes, with virtually no debate.” Similarly to how the Patient Protection and Affordable Care Act was pushed through Congress, the Patriot Act was rushed through quickly and signed by President Bush.
In this law, there are numerous provisions of questionable constitutionality. Section 206 of the bill allows for roving wiretaps. However “unlike roving wiretaps authorized for criminal investigations, Section 206 does not require the order to identify either the communications device to be tapped nor the individual against whom the surveillance is directed, which is what gives section 206 the Kafkaesque moniker, the ‘John Doe roving wiretap provision.”
A person may be under surveillance and not know about it, remaining legally “invisible” to all but the FBI agents who are monitoring them. This should be a cause of concern for anyone worried about the government being too intrusive and secretive. It does not keep intact the dignity of the person when one is not even aware they are being treated as a criminal. Due to the secrecy of this section, “there is virtually no public information available regarding how the government uses Section 206.”
Another provision of the Patriot Act is Section 215. This provision allows “the government to obtain orders for private records or items belonging to people who are not even under suspicion of involvement with terrorism or espionage, including U.S. citizens and lawful resident aliens, not just foreigners.”
Section 215 and Section 505 of the bill are often used in tandem. Section 505 allows the FBI to issue National Security Letters (NSLs). NSLs “are secret demand letters issued without judicial review to obtain sensitive personal information such as financial records, credit reports, telephone and e-mail communications data and Internet searches.”
Prior to the Patriot Act, “the FBI had authority to issue NSLs … [but] Section 505 increased the number of officials who could authorize NSLs and reduced the standard necessary to obtain information with them, requiring only an internal certification that the records sought are ‘relevant’ to an authorized counterterrorism or counter-intelligence investigation.” With these provisions, the FBI can essentially sidestep the judicial system.
In fact, in 2006, “the FBI twice asked the Foreign Intelligence Surveillance Court for a Section 215 order seeking ‘tangible things’ as part of a counterterrorism case… The court denied the request, both times, because ‘the facts were too ‘thin’ and [the] request implicated the target’s First Amendment rights.” Rather than reworking the case, the FBI simply applied for three NSLs (which it got) and continued pursuing the case.
Instead of pursuing the case through the processes of the legal system, the FBI ignored the rule of law and moved on with its investigation. This shows a surprising lack of integrity. The FBI should remember Titus 2:7: “In everything set them an example by doing what is good. In your teaching show integrity and seriousness.”
In another questionable act, the Department of Defense “asked the FBI to issue NSLs compelling the production of records the DOD wanted but did not have the authority to obtain.” However, the FBI complied with the Department of Defense’s request, “apparently violating its own statutory authority.” This seems to be a rather repetitive story: the FBI and other government bodies violating their legal purpose.
A reasonable person might ask, “Has this resulted in increased capture of terrorists or dangerous criminals?” The surprising answer is…not really. In fact, in 2006, the Department of Justice refused to even hear 87 percent of the cases referred by the FBI. This is part of a disturbing trend: in 2002, the DOJ rejected 56 percent of the cases; in 2003, 77 percent; in 2004, 72 percent; and, in 2005, 84 percent of the cases. This shows that “the vast majority of the FBI’s terrorism-related investigative activity is completely for naught – yet the FBI keeps all of the information it collects through these dubious investigations, forever.”
This year the Patriot Act was up for renewal, and given its lack of effectiveness it was probably rejected, right? Wrong. After 30 minutes of debate in the House, a vote was taken and renewal passed. The Senate similarly spent minimal time on debate and renewed the law.
Some government officials have praised the controversial act. In 2003, US Attorney General John Ashcroft told a gathering of law enforcement officials, “that because of the Patriot Act, America is safer and freer than it was before.” John Podesta, President Clinton’s chief of staff, explained: “The provisions of the new law … are a sound effort to provide new tools for law enforcement and intelligence agencies to combat terrorism while preserving the civil liberties of individual Americans.”
President Bush, who originally signed the bill, in an address in 2005, “recalled the case of an Ohio truck driver, Iyman Faris, who was charged in 2003 with plotting with Osama bin Laden and other Al Qaeda leaders to commit acts of terrorism, including blowing up the Brooklyn Bridge.” Without the Patriot Act, President Bush contended that Mr. Faris might have escaped the grasp of law-enforcement officials.
However, not all government officials approve of the law. A Minneapolis FBI agent, Colleen Rowley, “testified before Congress that the FBI was so thick with bureaucracy and micromanaging that intelligence gathered at the grass roots level never made it to the agency’s top echelon.” John Podesta even said “we should be ever vigilant that these new tools are not abused.”
Former senator, and head of the Senate Judiciary Committee, Russell Feingold, in 2005, mentioned “many lawmakers in both parties had concluded that portions of the act infringed on freedom.” Clearly, although some government officials view the Patriot Act as necessary and useful, it is far from a consensus.
Although the Patriot Act probably has stopped some criminal acts, it is hard to justify such a large, intrusive surveillance bill based on only a few known successes. Instead of an ever more intrusive government, we need a government that stays within its limited powers and effectively carries out the missions defined to it. The FBI’s mission is to protect the nation, and it should be given the proper tools to do so. However, there is no need for the FBI or other government agencies to use legal “shortcuts” permitted by the Patriot Act. American citizens need protective agencies, but not agencies that sidestep the rule of law and subject people to unregulated and undefined investigation.
In a review of Daniel Mahoney’s The Conservative Foundations of the Liberal Order, David Deavel cites Mahoney’s assertion that “constitutionalism and the rule of law … are the indispensable foundations of a free and civilized political order.” As long as the Patriot Act is enforced, the United States has a law that enlarges government surveillance and power without much regard to legal processes. The United States needs effective law enforcement and national security agencies, but the Patriot Act is simply the wrong way to improve the country’s safety.