Author’s Note: This is the third report in an occasional series, Moving Forward with President Obama.
Using fear as its passport, The Patriot Act was passed 45 days after Sept. 11, 2001, in the name of national security.
The passage cameb about by way of what is called “shock doctrine," which is defined in Neomi Klein’s book by the same name and was the first of many changes to surveillance laws that made it easier for the government to spy on ordinary Americans by expanding the authority to monitor phone and email communications, collect bank and credit reporting records, and track the activity of innocent Americans on the Internet.
While most Americans think it was created to catch terrorists, the Patriot Act actually can turn regular citizens into suspects without their knowledge. Or if they discover their rights to privacy are breached, they have no recourse.
The civil liberties Americans hold sacred evolved from the British rule of law starting in 1215 with the Magna Carta. It restricted the power of the monarch in making them accountable to the laws of England.
In 1689, The English Bill of Rights guaranteed free speech to members of Parliament, banned cruel and unusual punishment, and supported a limited right to bear arms. The Declaration of Independence, while being an American document written by "A Letter Concerning Toleration.", is at once a collection of British law and the tenants of the Enlightenment from the writings of the French philosopher Montesquieu and the Englishman , whose political works include the famous "The Second Treatise of Government" in which he argues that sovereignty resides in the people and explains the nature of legitimate government in terms of natural rights and the social contract. He is also famous for calling for the separation of Church and State in his
For the purposes of examining the Patriot Act, recalling Montesquieu’s trias politica principle, the separation of powers, is appropriate. Our government was formed under this model, and the state is divided into three branches, each with separate and independent powers and areas of responsibility so that no branch has more power than the other branches. The normal division of branches is into legislative, executive and judiciary, which the Founding Fathers adopted for the United Sates with the full intention that the balance of power among the branches would be upheld.
What happens when one branch of the government becomes too powerful, rendering basic rights of Americans null and void, and how can the balance be reinstituted?
Since the Patriot Act was enacted in 2001, it has gone through several revisions, mostly to expand its scope and powers and distancing itself from the watchful eyes of the public and the legislature. However, despite this fact — according to Sens. (D-Ore.) and (D-Colo.) — there are two versions of the Patriot Act: One that the public sees, and a secret interpretation that the government keeps to itself. Wyden has stated, “When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry.” Furthermore, since its passage, the Department of Justice’s Office of the Inspector General has repeatedly found widespread blatant abuse of the statute. Yet, earlier this year, Congress passed a four-year extension of expiring Patriot Act provisions, which are now set to expire June 1, 2015, according to an American Civil Liberties Report.
Rethinking the Patriot Act
In 2005, Professor Stephen J. Schulhofer wrote a report for the The Century Foundation providing context for rethinking the Patriot Act. The professor acknowledges the unprecedented powers therein putting civil liberties at risk. He also writes that the law is misunderstood and some of the law is essential and extends benefits to certain immigrant groups. Schulhofer, however, concludes that many of the act’s new powers are far too broad and no efforts to ensure transparency and accountability are included.
"Whatever its defects, the Patriot Act is more complex and more protective of basic liberty than many of its detractors acknowledge," said Schulhofer. "The flaws however are basic. They threaten fundamental liberties, needlessly expand dangerous powers, and in practice interfere with effective measures to thwart terrorism. We can and must do better," he added in a Century Foundation report.
The professor notes that currently our government accepts secrecy as policy and unchecked law enforcement power contributes to alienation and mistrust of government. Security depends on building confidence in the United States and abroad demonstrating that America is strong and also fair through government practices ensuring human rights, treats people with decency and respects the rule of law.
Schulhofer is the Robert B. McKay Professor of Law at New York University Law School. From 1986 until 2000, he was director of the Center for Studies in Criminal Justice at the University of Chicago, where he was the Julius Kreeger Professor of Law, and he served for many years as a consultant to the United States Sentencing Commission. He is the author of "The Enemy Within: Intelligence Gathering, Law Enforcement, and Civil Liberties in the Wake of September 11" (The Century Foundation Press, 2002).
ACLU challenges to the Patriot Act
Since the Patriot Act was first enacted, lawmakers have authorized extension after extension, refusing to make any meaningful changes to the law. Our new infographic illustrates some of the most troubling aspects of the Patriot Act, and our new timeline contextualizes the Patriot Act alongside other laws and government surveillance programs expanding suspicionless spying on ordinary Americans (as well as ACLU efforts to fight unchecked surveillance).
While much-needed reform of the Patriot Act is likely a few years away, there is something that we can do today to prevent further erosion of our privacy rights. Just as the Patriot Act swept aside long-standing constitutional protections against government prying into private lives, current cybersecurity proposals threaten to expand the government's ability to collect personal information — simultaneously violating privacy rights and overwhelming the government's counterterrorism efforts with too much data. Over the past decade, we have learned that such policies fail on two fronts: They are largely ineffective and they violate civil liberties.
In 1215 the British recognized unchecked power in the monarchy was a corrupting influence. In response they proclaimed certain liberties in the Magna Carta, stating the monarchy’s will was not arbitrary and that no “freeman” could be punished except through the law of the land, which still exists. The balance of power, as defined in Montesquieu’s trias politica principle, among the branches of government needs to be maintained to ensure “checks and balances.” In addition, it prevents one branch from becoming supreme, protects the "opulent minority" from the majority, and induces the branches to cooperate.
When laws like the Patriot Act overstep their bounds infringing on civil liberties, it is the duty and responsibility of the people’s representative branch the legislature to challenge those encroachments. The Legislature is the branch closest to the people, and it is their responsibility and elected duty to be our advocates in Washington to protect and preserve civil liberties and restore the balance of power.
Read the Patriot Act on The Department of Justice website here.
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Articles in moving forward series: Immigration and closing Guantanamo Bay Prison