Patriot Act and the Pendulum

Justice Department officials reported that the administration supports extending three key provisions of the Patriot Act that are due to expire at the end of the year. These items include the authority to access business records, monitor individual terrorists and conduct roving wiretaps. The administration is willing to consider additional privacy protections as long as they don’t weaken the effectiveness of the law.

I am gravely disappointed.

I am, politically, most accurately described as a libertarian, however, I’m definitely not a candidate for membership in the libertarian party. (Staunch stronghold of freeze-dried-whackaloons!) Philosophically, libertarians cover a wide spectrum, but tend to support strong personal rights to life and liberty, free market capitalism, private property rights, minimal government regulation, minimal taxation, and rejection of the welfare state, all within the context of the rule of law.

The Patriot Act, initially passed by a bipartisan majority just 45 days after the September 11, 2001 World Trade Center bombings, has been highly controversial.

The Cliff Notes version of the act is:

Title I: provides for enhanced domestic security services
Title II: expands availability and flexibility of surveillance procedures to law enforcement officials.
Title III: extends anti-money-laundering provisions to detect and prevent terrorism
Title IV: beefs up border security, the INS, and associated detention guidelines.
Title VI: provides aid to victims and families of victims of terrorism
Title VIII: redefines criminal law around terrorism, cyberterrorism and support activities
Title IX: establishes priorities for collection of foreign intelligence
Title X: adds miscellaneous provisions not covered under other sections

The primary arguments against the Patriot Act are that it:

  • Expands terrorism laws to include “domestic terrorism” which could subject political organizations to surveillance, wiretapping, harassment, and criminal action for political advocacy.

  • Expands the ability of law enforcement to conduct secret searches, gives them wide powers of phone and Internet surveillance, and access to highly personal medical, financial, mental health, and student records with minimal judicial oversight.
  • Allows FBI Agents to investigate American citizens for criminal matters without probable cause of crime if they say it is for “intelligence purposes.”
  • Permits non-citizens to be jailed based on mere suspicion and to be denied re-admission to the US for engaging in free speech. Suspects convicted of no crime may be detained indefinitely in six month increments without meaningful judicial review.

On September 11, I posted an update on Facebook, “I’m grateful for America’s freedom today.” Responses were mixed – some shared my gratitude, and some were dismayed at our eroding freedoms. My response?

You know, we may have lost some of our innocence and some of our perceived freedoms – I’ve written about my loathing for the Patriot Act and Guantanamo Bay before.

Still, I can post whatever I want here without getting thrown into jail. (Myanmar) I can protest for or against anything I want downtown without getting shot in cold blood. (China) I can wear whatever I like – and drive alone – and execute my own legal agreements. (Iran)

It may be far from perfect, and the pendulum has swung well toward paranoia since 9/11, but America is still my country and I’m still grateful.

Still, I’d have to agree, in principle, that our freedoms are eroding. We are losing our civil liberties and privacy. I’m neither a constitional law scholar nor a political analyst, and I can’t say where the line should be drawn. I do strongly feel that the Patriot Act is Orwellian and goes too far. I’d hoped for better from our current administration.

11 Responses to “Patriot Act and the Pendulum”

  1. Becca Says:

    You have given me a lot of food for thought. Will we ever get back to where we were prior to 9/11? Sadly, I am thinking not.

  2. Vince Says:

    I have a strong libertarian bent (with a small “l”) with views that range from conservative to liberal and all areas in between. But I always have despised the Patriot Act, and continue to despise it. I’m all for security, but I’m tired of paranoia setting our security agenda, and the erosion of our freedoms and the abuse of the Act and similar laws by those using them.

    As to Cheney and others who claims all those rules ave saved lives but they won’t be specific because of “security”, they remind me of the old joke about the man walking around with an elephant gun. When asked why, he explained he used it to frighten away elephants. When told there were no elephants where he lived, his response was “See, it works!”

  3. Eric Says:

    This is, to me, one of the valid criticisms of the Obama Administration and a major, ongoing problem. I wish that Congress in 2001 had recognized that there’s a tendency for power to accrue and to ratchet in only one direction, and that it takes a truly strong and independent Executive to pull back and renounce power.

    I’m in favor of big government–but a big government that is transparent, that serves the public, that respects privacy, that holds Due Process in proper regard. This isn’t a contradiction or a paradox–providing public education, paving roads or insuring healthcare doesn’t require wiretapping. And wiretapping, to the extent it might be necessary to protect the nation, can still be supervised by an independent judiciary and independent Congress should Congress choose to exercise proper oversight. An example of this sort of thing can be found with the Congress’ creation of the FISA courts way-back-when, and nobody has managed to offer any satisfactory evidence that the FISA courts are in any way broken or inadequate as a procedural balance between the Executive responsibility to protect the public and the public’s right to be secure from unwarranted searches and seizures.

    It’s a damn mess. Candidate Obama suggested he’d be the rare, strong leader who would roll things back. So far, President Obama has not been that leader. I’m disappointed.

  4. Holy Says:

    I concur on transparency.

    The Patriot Act (a misnomer if ever there was one) is akin to McCarthyism – and sadly, helps create this dichotomy between what citizens would perceive their freedoms and liberties to be – the myth, if you will – and the reality that this isn’t exactly a democratic process.

    If it was, would these bailouts have really happened in which your kids and my kids and their kids and so on will pay the huge luxury tax for this generations’ economic mistakes? It’s just more of the same – pay it forward and shirk responsibility – let it be “their” problem.

    The day the ideology shifts from anti-terrorism and fear-based protectionism to pro-peace, pro-ecumenism and pro-domestic nesting – and I think this regime is at least trying to painfully, slow avail to address the fear-mongerers in more positive ways – will mark the official dawn of a new millenium wherein the US is neither the bully, the bullied, nor the bystander, but rather the Brave one – the Peacemaker.

    All this from the gal who remains mute during weekly pledge ceremonies. Although having said that, the New York minute I can begin to trust this is really one nation that understands the true nature of liberty and justice for all, and that the republic begins standing for peace & global good works (because therein lies the key to restoring America’s good name – putting your money where your mouth is), I would be the first to carry the flag. On my honour. :)

  5. Kate Bishop Says:

    Great post – thank you for noting.

    I am grateful for my freedoms AND I am very well of the erosion of them since the time of GWB. I won’t even say 9/11, because it wasn’t 9/11, it was the response to 9/11.

    I’ve tried to find an ideology within the political system i can subscribe to, but, alas, I believe I will be floating back to the permanent big “I”, being Independent. In my heart of hearts, I believe the only way Congress will be reformed is by an outside movement not affiliated or indebted or interested in any way to with the “system” of Washington. One in which the people are truly represented. I do believe this can happen. I must.

    As for Obama, I too, have been disappointed on occasion yet I am more impressed than I have ever been with a President. It is easy to be the copilot and judge, without any of the information he is privy to. The reason I still have faith in him is I don’t feel I have been lied to. Note, I said *feel*. Do I think he has had to compromise ideals he came into office with? Yes. Do I think he has gone back on campaign promises? Yes. However, I have faith there are reasons for this. He seems to embody something I haven’t seen in a president for a long time. And, I do expect him to be human, he set the tone for that. He never said he was above reproach. I like that about him. But, he could fail miserable with this one. He knows the law…he could lose me on this one.

    In terms of the Patriot Act, I would need to no more. I would like to see how it will achieve, “access business records, monitor individual terrorists and conduct roving wiretaps”. Will it include the same provisions as you mentioned in the original Patriot Act? If so, I am dead against it. The Patriot Act basically circumvents 7 of the 10 Amendments in the Bill of Rights. Congress, our elected officials, gave away the freedoms our founders with a signing of the pen, and we all stood by and watched. See why I don’t want Congress directing things any longer? They have failed, and failed miserably. All that being said, I do believe in Intelligence gathering, within a process with oversight. GWB reacted urgently – there was time to set up a commission and to look into covert operations with due process being part of the equation – he just wanted to do it on his own authority (overextending the power of the Executive Branch).

    I’m not pro or con “big government”, I actually believe that is rhetoric thrown around for political purposes. What I am for is smart government. I saw a lot of that in Obama’s plan, and I see its fruit in the Katrina clean up, finally. However, it is a HUGE mess he is inheriting, and it will take a lot of time, effort and energy to bring about change. I am so thankful the wheel has been put in motion – look how engaged the country is in our own welfare? Sometimes that is the benefit of pain.

  6. James Says:

    Be careful before decrying you can do all of these things in America without undue concern. Not even two weeks ago, I read an AP article about a Fire Chief in some southern town being shot while in court fighting (of all things), a seemingly unwarranted glut of traffic tickets in this community of less than 200. What did he get for his trouble, you may ask? In court, mind you, shot in the back, by the police! Seriously.

    And not even a month ago, I watched a comedy show with nothing but “Middle Eastern” comedians, most clearly very funny and all too aware of how hilarious their own society can appear, from both an insider and outsider point of view. One of them was the actor from the movie “Office Space”. He had apprently, in a “blog” format, made an obviously stupid comment intended for comedic purposes only, and found himself the subject of a very real FBI investigation. He made a statement in his stand up routine to the effect of “Now I do not ever, make any mention of terrorism online at ll, joking or otherwise, and advise you to do the same.”

  7. Jeri Says:

    Becca – I agree, I think we won’t get back to where we were – but with good leadership, maybe we’ll end up somewhere better? Someday??

    Vince – the ‘small-l libertarian’ club, of which I’m a member as well – makes me smile. It’s amazing that a group of people as independent and anarchistic as libertarians have been able to organize at all. Agreed on the nation’s current paranoid security agenda – couldn’t we define one based on strategic thought and long-term vision?

  8. Jeri Says:

    Eric – astute observation on the tendency for power to accrue and never roll back effectively. I, too, had hoped for better from President Obama – I hope he may yet surprise us.

    Holy – I’m going to out you on one thing. Before anyone jumps on you for not reciting the pledge – let me just point out that YOU ARE CANADIAN, and even as an expat living here, it’s kind of not required. LOL I really like your vision of America the peacemaker – rather than America the peacekeeper. I too could stand behind that.

  9. Jeri Says:

    Kate – your comments on the Washington system and compromised ideals are interesting. I, too, have felt that President Obama is a man of integrity, yet I understand the dealmaking that goes on to survive in politics, in the Senate. It is a flawed and sometimes corrupt system, with consensus almost impossible to achieve – I wish it worked better for us. Don’t even get me started on the deficiencies of the two-party system! And – I would have to say I am against big government, in principle, although I too like paved roads and EMT service. :P

    James – your first example is that of a corrupt town government I think, and your second is of the kind of thing the current Patriot Act fearmongering sets us up for. You’re right, our freedom of speech does have limitations. I considered inserting words like “guns, bombs, drugs” randomly throughout my post just to be funny and decided it might be a bad idea, especially in the current political climate. I’m a big fan of the EFF (Electronic Frontier Foundation), a legal think tank devoted to dealing with electronic media, free speech and privacy, but don’t want to try ‘em out personally.

  10. Vince Says:

    couldn’t we define one based on strategic thought and long-term vision?

    Jeri, that’s what I wish would happen. But you know the old saying about if wishes were horses.

  11. Jeri Says:

    Vince – if wishes were horses Cormac McCarthy would have to find something else to write depressing books about? ;)