Luke Morris
Junior
Philosophy Major
CCA 1 – U.S. Intelligence
10/01/2003
The Propriety of the PATRIOT Act
The first Center for Constructive Alternatives seminar of the 2003-2004 school year, “The History, Purpose and Propriety of U.S. Intelligence Activities,” briefly addressed a very important issue in American politics: the tense relationship between the citizens’ civil liberties and the nation’s security measures. This issue hit its keynote in a debate over the “Uniting and Strengthening America Act by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001” (sec. 1). NPR correspondent Juan Williams attacked the Act as a potential threat to American liberties, while Heather MacDonald claimed that legislative actions to date have not even yet given enough power to the government for the purpose of combating terrorism. The main question, around which the debate really circles, is where we draw the line past which the law may not pass. At what point does an American feel that the government has violated his essential liberties too greatly in the interest of his alleged safety? The fact of the matter is that the PATRIOT Act does pose a real threat to our freedom, particularly with the increased powers it gives the government as a whole, the secrecy with which it allows the FBI and other agencies to exercise those powers, and the lack of any real checks and balances on the centralization of such powers.
As Political Science professor Will Morrissey remarked in his CCA speech, “intelligence” aims at “a politics of prudence,” and Americans would do well to heed that advice not only as regards the terrorist threat, but also in the light of the PATRIOT Act and other innovations of our own government that might threaten the very liberties that we mean to defend. Section 106 of the Act, for instance, not only gives the President the power to confiscate the property of any foreigner that he himself determines is a terrorist or terrorist supporter, and to confer that property’s liquidation onto anyone he chooses, but it also “does not confer or imply any right to judicial review.” Thus, in addition to increasing the president’s power of arbitrary decision-making as regards foreign property, the Act eliminates any requirements for judicial checks and balances on the executive authority in such cases. Though Heather MacDonald claims that, “this is the one country that is the least likely to have a Big Brother because of our history of checks and balances,” the PATRIOT Act presents us with the imminent possibility of a Big Brother state in removing these roadblocks from the path of government intrusion.
“The risks of government running amok have to be balanced against what we’re trying to prevent,” MacDonald asserts, and no real American would argue that this is not true. There is a point, however, where government goes too far, after which we cannot hold it in check. When that time comes, it will be too late for Americans to say, “Wait, this isn’t what we wanted!” The police state will be in force, and it will not allow us to say any such thing. The PATRIOT Act, though it institutes no such state as of yet, still carries us one step closer to it. Americans must be eternally vigilant of the power they vest in government. As Juan Williams says, the danger lies in the fact that, “the American people want to support the government, the American people want to trust in their government, and the American people fear the terrorists more than they fear the possibility of abuse by their own elected officials.” But how do we keep ourselves from being murdered without committing suicide? How do we protect ourselves from the terrorist actions that seek to destroy the value of liberty that Americans share, without sacrificing that very liberty in its defense?
Heather MacDonald argues that such a question is unnecessary at this time, since, “maybe, at some point in the future, we will have to make the tragic tradeoff between liberty and security, but we sure haven’t yet.” But the PATRIOT Act certainly provides firm ground for such a tradeoff to take place, and we must beware of that above all. Government, once given power, will rarely if ever give it back, no matter how “democratic” the regime. The history of the United States proves this point, as one may see when looking at the income tax, the modern welfare state, and the centralization of state powers into the hands of the federal government.
While some argue that we need not concern ourselves with this “slippery slope” line of thinking, since section 224 of the Act does give us a sunset clause for the amendments made therein, that clause specifically excludes section 213 from any such provision. Section 213, “Authority for delaying notice of the execution of a warrant,” states that any notice of a warrant for search and seizure of property “may be delayed if . . . the court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result.” In other words, the government need not notify a person before they investigate and take his property, if when they notify him he might impede their search. While this amendment may seem a reasonable step in increasing the efficiency of law enforcement, it drives the thin end of the wedge into the citizen’s fourth amendment protection against unlawful search and seizure. It sets up the court of the federal government as the only barrier between the federal agents themselves and the innocent American citizens. So, while this section may help catch terrorists, it also carries with it the potential for incursion upon our property rights. This is the “tragic tradeoff” against which we must guard ourselves.
While sections 106 and 213 of the PATRIOT Act should cause concern in the mind of every American who cares for his liberty, the greatest potential threat lies within section 215, which deals with “Access to records and other items under the Foreign Intelligence Surveillance Act” (FISA). This section gives ranking officers of the FBI the authority to “make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities.” They may apply this section to foreigners or to any “United States person,” regardless of Fourth Amendment protections. MacDonald argues that, “you don’t have a fourth amendment right in records that you have given to a third party. The fourth amendment protects things . . . that are in your home.” She then presents the solution that, if we don’t want to enable the government to spy on our personal affairs, we should avoid any type of public transaction whatsoever. This attitude conflicts with the American spirit of respect for the individual’s private life and business, which should in no way be the government’s business if they have no proof of a crime or a terrorist act.
The real threat of section 215, though, lies not in its outright granting of search powers, but rather in the secrecy that it allows the agents who exercise such powers. As Juan Williams points out, though the Act appoints the FISA court to oversee the enactment of this section, the court is limited in its power to refuse to grant a search warrant; that is, the court “can’t question the Attorney General’s assertion of terrorist activity.” Thus, a John Ashcroft or a Janet Reno may unilaterally decide which people to investigate as potential terrorists, regardless of any actual evidence. Williams thus concludes that, “the biggest problem with the Patriot Act, is its secrecy.” MacDonald, on the other hand, declares that such a search as section 215 allows, “has to be secret. That is the very essence of intelligence.” But how can we be eternally vigilant against intrusions on our freedom, when the government allows its intrusions to be conducted in secret? After all, as section 215 states, “No person shall disclose to any other person . . . that the Federal Bureau of Investigation has sought or obtained tangible things under this section.” Thus, the American people do not know what actions the FBI takes under section 215. In addition, “A person who, in good faith, produces tangible things under an order pursuant to this section shall not be liable to any other person for such production,” which limits any judicial oversight in the execution of the Act. Secrecy thus threatens our ability to defend ourselves from tyranny.
Dr. Will Morrisey says that “systematic ‘intelligence’ gathering coincides with the advance of the Machiavellian project of statebuilding,” and that “The need for ‘intelligence’ increases with statism.” Though the PATRIOT Act does increase the efficiency of intelligence gathering by removing the information barriers between investigative departments, Americans would do well to beware that the State does not use its newfound power to become too efficient. As Juan Williams states, “the liberty necessary for the exercise of intellectual curiosity . . . will be restricted if we allow the government the right to come into our homes, to come into our libraries, to come into our places of business and conduct unwarranted searches without reasonable suspicion of terrorist activity.” While a number of the legal amendments in the PATRIOT Act do help us fight the war on terror today, we must be careful about allowing those provisions to remain that the government may use to violate the very liberties for which we are fighting.