by Bruce S. Thornton
Private Papers
The following was presented in October in Modesto, California as part of the American Heritage Series sponsored by the Modesto Bee.
The 9/11 terrorist attacks shocked the nation in many ways. In addition to the horrific scale of the destruction and loss of life, the ease with which the terrorists, armed only with box-cutters, had hijacked four commercial airliners and then turned them into guided missiles stunned us all. As the subsequent investigation unfolded, we were equally amazed at how easily the conspirators had entered this country, lived and traveled among us, and advanced their plot. Clearly, our intelligence and security agencies had not worked as they should have.
To many people, the failure of those agencies partly reflected flaws and limitations in the laws that have governed intelligence gathering in the United States since the seventies. To address these problems, in October of 2001, Congress passed by overwhelming votes (98-1 in the Senate, including Senators John Edwards and John Kerry; and 357-66 in the House) the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism act-more easily known by its acronym, the USA Patriot Act.
The Patriot Act contains over 300 pages of 153 separate provisions, most of them involving changes to existing laws. The most controversial include Section 215, which allows investigators to obtain various sorts of records and other “tangible” things, such as “books, records, papers, and other items,” in the words of the law. Another important change has been the removal of the so-called “wall” between intelligence and criminal investigations that sometimes kept the CIA from communicating with the FBI, a restriction created in the 1970’s in response to revelations that the FBI and CIA had been spying on domestic social and political movements. A third controversial change allows investigators to ask a judge for delay in the notification of a warrant or court order if, in the words of the law, “the court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result” such as the flight of suspects or the harming of witnesses. Finally, the law allows investigators much greater latitude when using electronic surveillance such as wire-taps and phone traces: for example, surveillance orders issued by a judge are valid anywhere in the United States, not just in the judge’s jurisdiction. And the law now applies to investigations of Internet addresses. There are other provisions of the law that also have created concern, but these are the ones that have received the most attention in the media.
Although the Patriot Act currently enjoys widespread public support-in one recent survey 64% of those polled felt that the law struck the right balance between security and civil liberties–the Patriot Act has generated intense criticism and concern on the part of those who feel that the law erodes our civil liberties and gives too much power to the government to intrude into our private lives-a criticism, by the way, that comes from both the left and the right. Rarely do you find the American Civil Liberties Union and the American Library Association on the same side of an issue as the American Conservative Union and the Gun Owners of America, but they all agree about the presumed dangers posed by the Patriot Act. And these concerns are having an effect at the state and local level: at least four states and over 300 communities have officially called for limiting law enforcement’s access to personal information such as library and medical records. Moreover, since the bill is set to expire in December of 2005 unless Congress approves it again, this controversy is likely to continue, particularly since this is an election year: Senator Kerry, who voted for the act, has now called for revising it, while President Bush wants Congress to approve it again. Unfortunately, much of the discussion of the Patriot Act is marred by misinformation and distortion of what the law does and doesn’t do: as Vanessa Blum wrote this year in The Legal Intelligencer, “the level of hype, hyperbole, and outright hysteria surrounding the [Patriot] act is extraordinary.”
What I want to do this evening is survey briefly the criticisms and defenses of the Act, and then speak about the underlying issues that I feel are really at stake-most importantly, the sometimes conflicted relationship between freedom and security.
Critics of the Patriot Act claim that it grants government agencies the power to investigate people’s private lives and to inhibit speech and activities protected by the First Amendment. The act compromises our privacy by granting the government access to records held by third parties such as doctors, libraries, and Internet service providers, on the basis of the investigating agency’s assertion that the records are related to an ongoing terrorist investigation. In addition, the act imposes what critics call a “gag order” on the people or office turning over the records: those required to turn over records cannot disclose to anyone that they have done so or have been asked to. This means that the person under investigation cannot challenge the legality of the search until after the fact. Although the act never mentions libraries specifically, the possibility that the government can examine secretly someone’s library records has especially generated concern, as it seemingly touches on intellectual activities that are protected by the First Amendment. As Illinois Senate candidate Barack Obama said at the Democratic National Convention, “We don’t like federal agents poking around our libraries.”
A second concern for critics of the Act is with the power it gives government agencies to conduct electronic searches without notifying the subjects until later, which to some violates the Fourth Amendment’s ban against “unreasonable search and seizures.” Next, the expansion of the wiretap law has also been interpreted as an attack on the Fourth Amendment’s requirement that a warrant for a search show “probable cause.” One problem is that the Patriot Act expands the scope of a wiretap beyond the jurisdiction of the judge approving the tap to the whole nation, which seemingly violates the Fourth Amendment’s requirement that an order for a search specify the places to be searched. Finally, the Act applies to searches of someone’s Internet use, applying the provision in preexisting wiretap law governing “transactional or addressing information”–that is, the address or phone number rather than the content of a communication–to Internet addresses. To critics, Internet addresses or URLs are richer in content than “snail-mail” addresses. As the American Civil Liberties Union (ACLU) notes, “The list of URLs that we visit during a Web session is really a list of the documents that we have downloaded . . . [it includes] intimate information that reveals who we are and what we are thinking about–much more like the content of a phone call than the number dialed.”
In addition to these concerns, critics of the Patriot Act claim that it erodes the accountability of government to the citizens, and creates a vague category of crime called “domestic terrorism,” defined as acts that are “dangerous to human life . . . to influence the policy of a government by intimidation or coercion.” To the ACLU, legitimate, First- Amendment-protected protests by activist groups such as Greenpeace, an environmentalist organization, or Operation Rescue, an anti-abortion group, possibly could be interpreted as terrorism under this definition. The section of the act that added “expert advice and opinion” to the kinds of material support to foreign terrorist organizations forbidden by the 1996 Antiterrorism Act, has been criticized as much too vague and so possibly could lead to the prosecution of people engaged in humanitarian activities or legitimate protest. Also, the demolition of the “wall” separating domestic from foreign intelligence gathering puts the CIA “back in business of spying on Americans,” as the ACLU puts it, with the potential of repeating the abuses of the 70’s when the CIA spied on American protest groups.
In short, in the words of the ACLU, the most vocal critic of the Act, the Patriot Act is “an overnight revision of the nation’s surveillance laws that vastly expanded the government’s powers to spy on its own citizens, while simultaneously reducing checks and balances on those powers like judicial oversight, public accountability, and the ability to challenge government searches in court.”
Supporters of the Patriot Act dispute these assertions and argue first that criminal-investigation agencies already hold most of the powers granted under the act to domestic intelligence gathering agencies. During the Senate floor debate about the act, Democratic Senator Joe Biden pointed out that before the act, “The FBI could get a wiretap to investigate the mafia, but they could not get one to investigate terrorists.” In addition, much of what critics dislike about the act has little to do with the actual provisions of the act itself. According to Georgetown University professor Viet Dinh, who worked on the act when he was in the department of Justice, “The USA Patriot Act has become a brand. Activists lump everything that is objectionable about the war on terror, anything wrong with the world really, onto the USA Patriot Act. No more than 10 percent of what people ascribe to the [Patriot Act] on any given day, is in the Patriot Act itself.”
Defenders of the Patriot Act point out that criminal investigations of drug crimes, passport fraud, and mail fraud already have the power to use the sorts of surveillance techniques that critics are complaining about. Delayed notification of a search warrant, for example, has been available for decades to law enforcement to avoid tipping off suspects or endangering witnesses. So too “roving wiretaps,” those targeting a person rather than a particular device, have long been used by law enforcement investigating drug crimes or racketeering. Given that international terrorists are sophisticated and trained to avoid surveillance by changing location and cell phones, the power to use “roving wiretaps” is necessary for keeping track of terrorist suspects.
In addition, defenders argue that the unique nature of terrorist activities and the new technologies available to terrorists mean that earlier limitations on intelligence gathering must be changed in order to effectively thwart terrorist plots. For example, terrorist investigations typically span numerous districts, and so the requirement to obtain a search warrant in every district in which officers were investigating terrorist activity meant that they had to obtain multiple warrants in multiple districts and so endanger their investigation with delay. Under the Patriot Act, this cumbersome requirement has been eliminated. Likewise with the power to investigate information such as business or library records. With a grand jury subpoena, law enforcement has long had the power to obtain such records. Under the Patriot Act, now the government does too when investigating terrorist activity, which often leaves traces in such records: “Investigators,” according to the Justice Department, “might seek select records from hardware stores or chemical plants . . . to find out who bought materials to make a bomb, or bank records to see who’s sending money to terrorists.”
The so-called “gag order” that the act imposes on those required to turn over records has also been defended as necessary for terrorist investigations. Like the delayed notification provision, this restriction is necessary in order to keep suspects from destroying evidence, cutting off contact with associates, or fleeing the country. As Alice Fisher, who served as United States deputy assistant attorney general from July 2001 to July 2003, during which she oversaw the counterterrorism section of the Justice Department’s criminal division, put it, “You can’t conduct an international terrorism investigation in the broad light of day.” In addition, some have argued that the prohibition protects the reputation of the innocent who may be the subject of an investigation but who are never charged.
[On 29 September a federal judge struck down the provision of the Act that required Internet service companies to provide personal information about subscribers without disclosing that they have received the subpoena. The Justice Department has appealed the ruling.]
Champions of the Patriot Act are most enthusiastic about the
removal of the so-called “wall” that once existed between foreign and domestic investigating agencies and within agencies between those conducting an intelligence investigation and those conducting a criminal investigation. Patrick J. Fitzgerald, a United States Attorney in Chicago, has written about an investigation of Osama bin Laden he worked on in New York in early 1996. The prosecution team Fitzgerald was part of, including FBI agents, could interview just about anybody–citizens, police officers, foreign police officers, foreign spies, al-Qaida members. “But,” Fitzgerald writes, “there was one group of people we could not talk to. Who? The FBI agents across the street from us in lower Manhattan assigned to the intelligence investigation of bin Laden and al-Qaida. We could not learn what information they had gathered. That was the wall.” Fitzgerald describes several other examples of investigations that were hampered or compromised because prosecutors could not know until the last moment what intelligence investigators knew, including the plot by Sheik Omar Abdel Rahman to bomb the Holland and Lincoln tunnels and other landmarks in New York, and the 1999 Millennium plot to bomb Los Angeles International Airport. Fitzgerald for one does not want to return “to the days when we required prosecutors and agents to make decisions about national security-life and death-while looking at only half of the cards in their hand.” This support, by the way, is bipartisan: former Attorney General Janet Reno, in testimony before the 9/11 Commission, said, “Generally everything that’s been done in the Patriot Act has been helpful, I think, while at the same time maintaining the balance with respect to civil liberties.”
Since the Patriot Act, supporters point to terrorist conspiracies that have been exposed because of the easier cooperation between prosecutors and intelligence investigators made possible by the Patriot Act. In Florida, open sharing of information between prosecutors and investigators has led to the indictment of one Sami al-Arian for being the alleged U.S. leader of Palestinian Islamic Jihad, a terrorist organization that has murdered more than 100 people, including American Alisa Flatow. So too in Portland, Oregon, where cooperation between FBI investigators and local prosecutors led to the arrest of seven people who after 9/11 tried to get into Afghanistan to fight for the Taliban against U.S. troops and then, after failing to cross the border, returned to the United States, where they ultimately pled guilty to terrorism charges. Six people from Lackawanna, New York were convicted for support of terrorism after it was determined that they had traveled to Afghanistan in spring 2001 and met bin Laden. And in San Diego, intelligence-sharing assisted the prosecution of people involved in an al-Qaida plot to trade drugs for Stinger anti-aircraft weapons. Many people have criticized our intelligence agencies for failing to “connect the dots” before 9/11, and to defenders of the Patriot Act, the removal of the “wall” has made it much easier to do just that and prevent future attacks.
The major site of contention between detractors and supports of the Patriot Act, however, focuses on the issue of accountability. Contrary to the ACLU’s claim that the act gives the government secret powers hidden from the scrutiny of the citizens, defenders point out that there are several safeguards to protect civil liberties and monitor possible abuse. Regarding Section 215, the production of “tangible things” such as records, the law sets out several oversight mechanisms. First, all search warrants have to be approved by a judge. In addition, the law twice explicitly states that approval for obtaining information cannot be granted for an investigation of a U.S. citizen “conducted solely upon the basis of activities protected by the first amendment to the Constitution.” Finally, the law states that “on a semiannual basis, the Attorney General shall fully inform the Permanent Select Committee on Intelligence [in the House and Senate] concerning all requests for the production” of records. In addition, every six months the Attorney General shall provide to the House and Senate Judiciary Committees a report detailing “the total number of applications made for orders approving requests for the production of tangible things under [the law] and the total number of such orders either granted, modified, or denied.” Given that these Congressional committees are bipartisan, it would be difficult for the Justice Department or the executive office to get away with attempts to misuse the law for any partisan purpose.
These are the major issues dividing supporters and detractors of the Patriot Act. I should point out here that other issues irrelevant to the Act are often raised in criticisms of it. For example, detractors complain about the speed of its passage in Congress and the alleged lack of debate on an issue so important. But even if true, that fact has no bearing on the legality or usefulness of the law. So too with complaints about the declaration of people as enemy combatants or the detention of suspects at Guantanamo Bay, Cuba, issues the Supreme Court has addressed. Nor is the arrest, deportation, or detention of more than a thousand immigrants the result of the Patriot Act: those actions have been carried out under law existing before the Patriot Act. Any discussion of the Act pro or con should stick to its specific provisions.
What I would like to do now is step back a bit and take a more philosophical approach to this issue. There’s no need to be frightened by that adjective “philosophical”: I just mean that with any position we take on an issue, there are principles and assumptions underlying that position, not to mention bad thinking habits that make it appear convincing. Often debates stick just to the positions without getting at the beliefs and ways of thinking that generate the position. But that’s the level where the true debate needs to begin: the core values we want to endorse or advance by taking the position we take.
For example, the underlying assumptions behind most critics of the Patriot Act is that the government should be looked on with suspicion and its power monitored, for government has an insatiable appetite for power: every incremental increase in its power leads it to demand more and more until our freedoms have been compromised. This way of thinking is called the “slippery slope” argument: the first few steps down a slippery slope aren’t so bad, but gradually your speed increases and your control decreases until you’re wildly rolling all the way to the bottom. So too with government power: at first it doesn’t seem so bad, but eventually before we know it we’ve lost some fundamental freedom. Thus we need to stop the whole process at that first one or two steps.
Now, I personally am all for maintaining a healthy distrust of the government and its power, which is one of the core conservative principles. And I recognize that our Constitution is founded just on such suspicion, its famous “checks and balances” designed to thwart government power grabs. But the “slippery slope” argument is I think fallacious and misleading. On the one hand, this argument is difficult to test because it projects consequences in the future, where just about anything is possible. After all, who in the summer of 2001 ever imagined that terrorists could knock down the World Trade Center towers using airplanes as guided missiles? But there is another way to judge this claim: the record of history, of what in fact has happened rather than what hypothetically might happen. We can survey the past 200 years of American history and see if extraordinary powers given to government in times of emergency have gradually led to a constriction of our civil liberties. Let’s take a quick look at this history.
What we find since the American Revolution is that at times of war and crisis civil liberties have been suspended or restricted in order to provide security. During the Revolution, Royalist publications were censored or shut down and editors arrested; 24 people were arrested under the Sedition Act; and most colonies required loyalty oaths. Fifteen years after the Revolution came the Alien and Sedition Acts of 1798, which allowed the President to deport aliens he deemed “dangerous to the peace and safety of the United States.” These acts also legalized imprisonment of anyone conspiring to oppose any measure or impede the operation of any law, and of anyone printing “false, scandalous and malicious” writings against the government. During the Civil War, Lincoln censored telegraph messages and newspaper articles, arrested editors and destroyed papers, suspended habeas corpus, and subjected to military courts-martial anyone “discouraging volunteer enlistments” in the army. Many Confederate leaders after the war were held without charges being filed–Jefferson Davis for two years– and habeas corpus was suspended in some southern states in order to put down the Ku Klux Klan. During World War I federal censorship was established and subversive papers banned from the mails. Movies were censored, and public meetings banned; 2000 people were arrested under the Sedition Act, and the 2,700 arrested during Palmer raids against foreign-born “anarchists” or members of “subversive organizations” were denied habeas corpus rights. On the eve of World War II, the Smith Act prohibited “advocacy of insubordination, disloyalty, mutiny or refusal of duty in the military,” and during the war 120,000 Japanese were put into internment camps, as were Italians and Germans. And in the early years of the Cold War the McCarran Act, among other things, imposed restrictions on the activities of groups identified as communist by the Subversive Activities Control Board. And later in the Cold war the House Un-American Activities Committee, in conjunction with the FBI, surveilled and interrogated Americans thought to be Communists on the basis of their associations, artistic productions, or opinions.
Despite this dismal record, however, there has been no gradual increase of government power at the cost of civil liberties; each restriction was followed by a reaction that rolled it back, and indeed the trend over 200 years has not been toward greater restrictions of civil liberties but rather toward a greaterexpansion of freedom to cover activities unintended by the Founders. If history is any guide, it seems that American history does not support the “slippery slope” argument: over the past 200 years our civil liberties have expanded to a degree that would have horrified the Founders, who certainly would be shocked to learn that the right to view pornography on a tax-payer financed library computer is now a civil liberty.
Of course, this doesn’t mean that such curtailment couldn’t happen in the future. The new technologies of surveillance are much more powerful than any that have existed in the past, and the threat of terrorism is much more amorphous and difficult to investigate and combat than is an enemy army. And government is much larger and has much greater power over our lives than at any time in our history. Yet that all is balanced out by other new technologies such as the Internet and cable news channels that can instantly publicize information and put the spotlight on the government, as we saw recently with the Abu Ghraib prison scandal in Iraq. Indeed, the uproar over the Patriot Act managed by independent organizations such as the ACLU, and the activities of the states and local governments in challenging some of the act’s provisions, not to mention the democratic process itself that created the Act and will either confirm or end it, all testify to the sort of mechanisms that act as a check on government power and its aggrandizement. In short, the “slippery slope” argument may be a logical fallacy in this instance.
More important than any logical fallacy, it seems to me, are the fundamental goods that we embrace and that lie behind the positions we take or the actions we demand the government to take. By a “good” I mean an ideal we pursue because we think it will benefit us. The problem is that all such goods are not fully compatible: that is, to have more of one means having less of another. For example, two of our most cherished goods are freedom and equality: each is important and valuable, yet we can’t have the maximum amount of both. To ensure equality, we sometimes have to curtail freedom. Thus to ensure equality of opportunity for all races, we have to limit the freedom of people to hire, trade, or live with whomever they want. We make a trade-off, and this trade-off is the result of political decisions we all should participate in.
Another important good is security, the ability to live our lives without fear of harm. Yet as American history shows, security often collides with freedom: the price of freedom is greater risk in our lives, for some people will abuse their freedom to harm others. Calibrating the amount of control over our freedom we give to the government to keep us secure is a difficult task, for there is disagreement among people about which freedoms are essential and which can be limited. People who don’t read or use libraries, for example, will not be as concerned with the FBI poking around in their library records, while people who don’t own guns might not care about tighter restrictions on gun ownership. The computer illiterate will not think about URLs, while the Internet user will. Again, this adjustment will have to be made politically, that is, by the citizens and their representatives through the democratic process, which includes, by the way, events like this one. In other words, it is up to us citizens to keep our eye on the government and make it accountable. If American history is any guide, for 200 years Americans have done just that.
Yet we should keep in mind that security and freedom aren’t equally balanced, for the simple reason that the dead person has no freedom or civil rights. Life and security are the preconditions of freedom. Moreover, the primary responsibility of the federal government is precisely security: even the most libertarian hater of big government admits that providing security is a legitimate function of the federal government. Thus the very first “unalienable Right” listed by The Declaration of Independence is the right to life, and the Constitution makes “domestic tranquility” and “the common defense” two prime reasons for creating our government. Once more, balancing security and freedom is difficult, and you shouldn’t let anyone tell you any different. No one wants to live with the old Soviet Union’s security at the price of its lack of freedom. But we all should be honest about the costs of both freedom and security and the trade-offs often required of us when we pursue those goods that sometimes conflict.
And this is where I think the supporters of the Patriot Act have the edge: the costs for the greater security it provides are so far hypothetical, dangers that lie down the road or that could happen, while the costs of not providing security against terrorism are actual death and maiming. The ACLU, for example, is uneasy with the removal of the “wall” because it “opens the door to the same abuses that took place in the 70s.” Or it protests the new crime of “domestic terrorism” by asking, “How long will it be before an ambitious or politically motivated prosecutor uses the same statue to charge members of controversial activist groups?” Yet so far, no known abuses of the Patriot Act have been publicized. In fact, Democratic Senator Dianne Feinstein of California testified before the Senate Judiciary Committee, “I have never had a single abuse of the Patriot Act reported to me.” This may have changed, or the abuses may be still secret, but so far the evils we are warned against are future, hypothetical ones; but the 3000 dead in Manhattan are real, as are the people whose lives have been or will be saved because of the changes brought about by the Patriot Act.
A final point to consider is that the freedom the Founders enshrined in the Bill of Rights is a particular kind of freedom, mainly political freedom, the freedom to be a virtuous citizen. Opponents of the Patriot Act are fond of quoting Benjamin Franklin, who said, “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” The key word, of course, is “essential.” Much of what we consider today to be “essential” freedom, such as the freedom to shout obscenities in public or view pornography on the Internet, the Founders would have considered mere license, or doing whatever you want just because you want to do it– and license was considered a force as destructive to republics as is tyranny.
A supporter of the Act should accept the risk that someone might be unjustly investigated or someone’s civil rights might be compromised, and he should respect the various oversight mechanisms that discover and punish such abuse; by the same token, the opponents of the Act should tell us how many dead beyond the 3000 we have already lost are an acceptable price to pay for defending our civil liberties against potential abuses somewhere down the road. After all, we can all agree that being dead or maimed today is much, much worse than having our library records or Internet-surfing habits unfairly investigated tomorrow.
©2004 Bruce Thronton
