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Happy PATRIOT Act Day!

 

On this day, 16 years ago, President George W. Bush signed into law the most sweeping, publicly acknowledged domestic surveillance authority in American history. Enacted six weeks after the 9/11 attacks and over the vehement objections and warnings of civil libertarians, the bill passed the Senate 98-1 and the House 357-66.

In a press release issued the same day, the bill’s author, Rep. James Sensenbrenner (R-WI), said that

“This legislation gives law enforcement greater tools to aggressively find those who have and would terrorize innocent Americans and freedom-loving people everywhere. The PATRIOT Act takes off the kid gloves with terrorists by removing unnecessary bureaucratic hurdles that have hindered law enforcement’s efforts against new and dangerous enemies lurking in the shadows. This is achieved without discarding our civil liberty protections that makes our country unique and great.”

In reality, the bill had been rushed through Congress before any 9/11 inquiry had commenced, much less concluded. Congress had yet to investigate why the attacks had succeeded in the first place. Thus, the PATRIOT Act was a solution to a problem that remained unexamined at the time it became law.

Within three years of its enactment, two separate national reports—one by Congress, the other by the 9/11 Commission—would conclude that it was not a lack of data, but a lack of focused intelligence analysis and dissemination that impeded the intelligence community from detecting the terrorist plot. The PATRIOT Act’s constitutionally compromised, data-centric approach was, and remains, the wrong solution for preventing future attacks. 

Indeed, in the nearly 20 years since it became law, it has become clear that none of the 160 provisions of the PATRIOT Act have ever been shown to have stopped an attack on this country.

You will search in vain to find any reports by relevant agency or department Inspectors General or the Government Accountability Office, that show, based on a truly independent review of the available data (classified or otherwise), that any PATRIOT Act authority can be credited with stopping an attack on America. In fact, multiple examinations of such claims have found the opposite.

Worse, a number of the bill’s provisions have been used to violate the constitutional rights of Americans, and to chill debate over the so-called War on Terror.

There are documented reports of American Muslims curtailing or even ceasing charitable contributions to American-based Muslim charitable organizations in the wake of the passage of the PATRIOT Act in fear of being accused of providing financial support to a “terrorist” organization. That fear proved well-grounded when the “material support” provision of the PATRIOT Act was used to prosecute the Humanitarian Law Project for engaging in peace-making work between Kurdish rebels and the Turkish government.

The American Library Association was so alarmed by the PATRIOT Act’s effects that at its 2005 meeting it issued a resolution condemning the law and its chilling effect on libraries and their patrons who worried that their book checkout and online browsing histories would be subject to disclosure to the FBI under Sec. 215 of the law. That provision was initially labeled “the library provision” of the PATRIOT Act precisely because the FBI sought those very type of records from a Connecticut library in 2005. The law’s sweeping language allowed the government to demand any “tangible things” from public or private entities involving American citizens as long as the “tangible things” sought were “relevant” to the collection of “foreign intelligence information” or terrorism.

But it was former NSA contractor Edward Snowden’s amazing revelations in 2013 that helped highlight just how out-of-control government surveillance under Sec. 215 of the PATRIOT Act had become more than a decade after its passage and its two intervening congressional renewals. Snowden’s disclosure that Verizon was, under FISA Court order, providing bulk telephone metadata to federal law enforcement and intelligence entities provoked a rhetorical uproar in the press and on Capitol Hill.

Yet even after nearly two years’ worth of news stories based on the trove of documents Snowden removed from NSA and supplied to various press outlets, the response of Congress to the clearly documented abuses of the Sec. 215 PATRIOT Act program was the rather anemic USA Freedom Act, which actually left the discredited Sec. 215 program in place, marginally modified.

Why does any of this matter? Because exactly the same scenario is playing out in the lead up to the looming expiration of another controversial surveillance authority—Section 702 of the FISA Amendments Act (FAA).

Earlier this month, Sensenbrenner—author of the original PATRIOT Act and the USA Freedom Act—joined a number of his GOP and Democratic House Judiciary Committee colleagues in introducing the deceptively named USA Liberty Act.

In a joint statement accompanying the bill’s introduction, Sensenbrenner called the legislation “carefully crafted” and “the type of common sense compromise…It balances privacy and security concerns…” The truth is that the bill is a classic, inside-the-Beltway exercise in legislative legerdemain.

A core principle behind the U.S. Constitution’s Fourth Amendment is that warrants should be issued on an individual basis at a probable cause standard. By definition, a mass surveillance program like Sec. 702 of the FAA is not individualized in its targeting—it is a digital vacuum cleaner, driven by NSA- or FBI-supplied “selectors,” or search terms, which can encompass dozens, hundreds, or even thousands of targets.

And while those targets are supposed to be foreigners, as Sen. Ron Wyden (D-OR) has intimated, NSA may in fact be conducting “domestic to domestic” surveillance on targets here in America. The USA Liberty Act does nothing to address this allegation and potential threat—just as it does nothing to punish Justice Department and NSA officials for repeatedly lying to the FISA Court.

Indeed, the list of things the USA Liberty Act sidesteps is too long to recount here–but as with most of the debate about post-9/11 surveillance programs, it’s not the details that matter, but the big-picture principles.

And the big picture here is that history is quite literally repeating itself: Congress is on the verge of reauthorizing—in one form or another—a surveillance program that 1) has not demonstrably made the nation safer, 2) is clearly violating the Constitution in multiple ways, and 3) is serving as a very expensive jobs program for federal employees and contractors involved in its implementation.

Bit by bit, these insidious programs are warping American political institutions and destroying social bonds. The PATRIOT Act, the FAA, and their related surveillance programs are altering, perhaps irrevocably, the very nature of the relationship between the people and their government. We now live a country in which federal intelligence and law enforcement entities view the public at large, through the distorted, dark prism of mass surveillance programs, as suspects first, and citizens a very distant second.

When the executive branch and Congress repeatedly conspire to pass laws taking away constitutional rights and the effects become measurable—rights lost, speech chilled, major corporate entities acting as surrogates/partners for government surveillance and repression—these developments herald the emergence of a proto-fascist state.

Americans are regularly rhetorically terrorized by their government into believing, falsely, that an ISIS gunman lurks around every corner. Like a rattlesnake’s paralyzing venom, the government’s terrorism paranoia campaign, amplified by the media, has made the public politically catatonic about these constitutionally lethal mass surveillance programs. Whether they will awaken from that stupor in time to cure the disease brought on by the PATRIOT Act and its spawn remains to be seen.

 

Image: President George W. Bush signs the USA Patriot Act in the East Room of the White House on Oct. 26, 2001. Photo: U.S. National Archives

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About the Author

Policy Analyst in Homeland Security and Civil Liberties at the Cato Institute and Former Senior Policy Advisor to Rep. Rush Holt