Patriot Games

There is an old joke that goes something like this: How do you find a needle in a haystack? Why, you burn down the haystack. It?s reminiscent of the infamous Viet Nam explanation that ?We had to burn the village down in order to save it.?

There is an old joke that goes something like this: How do you find a needle in a haystack? Why, you burn down the haystack. It’s reminiscent of the infamous Viet Nam explanation that “We had to burn the village down in order to save it.”
In the wake of 9/11, the concern of every American has to be that we root out terrorists without burning down the constitutional village. And so far, the omens are not good.

The “USA Patriot Act”—an acronym for “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act”—eviscerated laws that had been put in place over a number of years to curb government excesses. It gave the Attorney General powers that would have been absolutely unthinkable before 9/11. The government can now more easily

  • conduct secret trials
  • listen to privileged conversations between prisoners and their lawyers
  • imprison people indefinitely on minor charges without even confirming that they are being held
  • eavesdrop on any telephone that a suspect may use
  • sort through thousands of private emails while promising not to read “content” (a term left conveniently undefined)
  • conduct so-called “sneak and peek” searches for physical evidence without notifying the suspect at the time
  • rummage through school records of foreign students
  • obtain library records for a history of books checked out by anyone
and much, much more.

Furthermore, it bears emphasizing that most of these new powers are not limited to non-citizens, or to the search for terrorists—the Act makes them expansions of the general criminal law. Much of what is contained in the Patriot Act is legislation that the FBI has wanted for years; before 9/11, however, law enforcement officials had been unable to get Congress to agree. Even where provisions do apply just to terrorists, the definition of terrorism in the Act is so broad that it would apply to a group of peace demonstrators who spray-painted a sign outside the State Department.  

Initially, the Patriot Act allowed the Attorney General to incarcerate—indefinitely—anyone he, in his sole discretion, deemed a threat to national security. No judicial oversight, no justification of the charge to anyone. That provision was overturned by the Supreme Court, but other, equally troubling provisions remain. Ashcroft can still incarcerate non-citizens based solely on his word that they are a threat to national security. Probable cause standards for obtaining wiretaps have been eliminated. The FBI can get sensitive medical, financial, mental health and education records of any citizen or alien without a court order. Ashcroft can designate any group as “terrorist” and prevent its members from entering the U.S. People who are questioned about activities of coworkers or fellow students can be subjected to criminal penalties for just talking about it. (So much for the First Amendment!)

As one commentator has noted, “The Act treats every American as a potential suspect, every federal agent as an angel. It asks us to ignore such dark episodes as the surveillance of Martin Luther King, Jr., or the Red files of the McCarthy era.” And when challenged about these unprecedented powers, Ashcroft accuses the challengers of being “anti-American.”
Passage of the Patriot Act has been cited as a major element in the restoration of what Arthur Schlesinger Jr. once called “The Imperial Presidency,” characterized by major shifts of power to the Administration and away from   Congressional oversight and other checks and balances. 

In fairness, some of the changes made by the Patriot Act were reasonable. Better communication between law enforcement agencies is clearly called for. Nationalizing airport security was probably a good idea. The change to wiretap laws allowing police to follow a person, rather than a particular phone, makes sense in an era of throwaway cell phones.  But overall, little in the Patriot Act makes us safer—it just makes us less free. Meanwhile, Osama Bin Laden has not been caught. Despite Administration rhetoric, neither Afghanistan nor Iraq has been pacified. And in the wake of the Iraq war, Al-Qaida enlistments are up and Al-Qaida sympathizers more numerous.

We have burnt our constitutional haystack, but we are still a long way from finding that needle.