LESSONS OF THE PATRIOT ACT

In his column last week, Ben Fleming ’04 referred to the USA PATRIOT Act as “one of the more odiously dishonest pieces of legislation passed under the current regime.” You might almost be led to think that George Bush, Dick Cheney and Tom Delay had single-handedly enacted the legislation. They didn’t – the act was passed by overwhelming majorities in both houses of Congress. Were all of the Democratic legislators who supported the act bamboozled? Were the American people massively deceived? Not really.

The PATRIOT Act is certainly problematic for civil rights, and what I find most problematic about it is not the specific powers it grants, but the broadness of its potential application and the attempts to make an end-run around judicial oversight. While defining terrorism can be difficult, we generally know what we have in mind when we turn over our civil liberties to the government for greater protection – it’s not a curious 12-year computer hacker or a bunch of Greenpeace protesters blocking city traffic. A law like the PATRIOT Act should make this distinction clearly, and it doesn’t.

This flaw is exacerbated by John Ashcroft’s explicit directives to subordinates, mandating that the law be interpreted as broadly as possible in order to seek the maximum charges and penalties. Peaceful co-existence of order and civil rights lives as much in the judiciously discriminate application of law as in the letter. Fat chance of that happening under this man.

Furthermore, excluding judicial oversight from some parts of the process is very difficult to justify. Logistical problems call for better logistics, not eliminating the process. Interning enemy combatants is all good and well, but does anyone realistically believe that the ‘war on terror’ will end in the foreseeable future? Are we really prepared to hold these people for their entire lives without fair trial?

It’s been two years now since that fateful day has defined this century thus far, and things are mostly back to business as usual. Iraq notwithstanding, the economy has overtaken terrorism and foreign relations as the most important issue to voters in the 2004 election with health and education close on its heels; the siege mentality has evaporated.

To properly understand and address this problematic piece of legislation, we must remember what we were feeling when we all watched on television (and some of us not on television) as those two veritable fortresses of the Pax Americana came crashing down to earth in a deluge of fire and ash. On that day, as the haze of panic set in, few of us would have blinked at letting the feds snoop into our library records if there was even a remote chance that it might help prevent the next attack. Preserving lives seemed more important than anything else. Even now that heads have cooled, that sentiment still largely colors the debate.

It doesn’t take much to imagine the sorts of hypothetical scenarios that led competent and well-meaning lawmakers to support the act. Some guy the police have pulled over in a U-Haul van (in which they find papers with a recipe list for a car-bomb on them) smiles and asks for his attorney while a stingy superior court judge haggles with authorities over probable cause to search of the suspect’s apartment.

Meanwhile, his handlers e-mail him and the other four cell members regarding which building they’re hitting, and the plot goes down before authorities can respond. Faster searches, less judicial review, more electronic surveillance, detention of foreign nationals, secrecy of indictments and even the library subpoenas could all be potentially justified with similar scenarios.

Terrorism presents a genuinely novel problem for our justice system. Its catastrophically violent nature requires a greater state interest in stopping attacks pre-emptively, compared with virtually any other crime. We intuitively want the government to use whatever means it has at its disposal (judicially inadmissible or not) to prevent another 9/11, as it would seem absurd and downright dangerous to simply free someone because the information used to catch them was not obtained in compliance with the standard rules of evidence. Still, it is not clear how you could try them using it and claim they were getting due process and equal protection, or how genuinely innocent suspects would receive vindication. There are no obvious or easy answers to this quagmire. The hastily constructed PATRIOT Act, the designation of terror suspects as enemy combatants and blending of law-enforcement and intelligence represent the present administration’s attempts to address this new reality. They are not doing particularly well.

In any case, we should not merely despise the PATRIOT Act, we should learn from it. The ACLU and others have already filed lawsuits challenging many of its provisions and most of the legislation’s more controversial aspects have sunset clauses set in 2005.

In the meantime, while constitutionality issues sort themselves out, we should use the act to think critically about what sorts of powers seem to be genuinely needed and how to make sure they get used properly. As dangerous as some of the PATRIOT Act provisions were, a leaked Justice Department draft of a potential sequel (creatively named Patriot Act II) is much worse. It is imperative that we require the administration to demonstrate not only the necessity, but also the effectiveness, of any newly proposed powers. It must also demonstrate that objectives of national security cannot be attained in less invasive ways.

The language of any future legislation should be scrutinized carefully; we should be well aware of how fear and insecurity are being exploited to allow the needless infringement of civil rights by overly zealous officials. The class of 2025 is counting on it.

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