Is anybody really safe?
Get used to it.

Responding to Questions Posted by a Criminal Justice Professor

How is the Patriot Act necessary in the Age of Terrorism?
As with any law or government action, time will be the best judge of the so-called Patriot Act. Polemists like Andrew McCarthy, Stephen Schulhofer and Robert McKay (Waller, 2009) can wax rhetorical until the sun sets but simply arguing one point or the other outside the court system will not settle the matter. (I’m especially suspicious of the likes of Schulhofer and McKay who feel a need to bring up Hurricane Katrina (Waller, 2009, p. 388) as part of their discussion of the Patriot Act. Such a digression only leads me to think the axe they grind has George Bush’s name on it.)

There seems little doubt that the Patriot Act treads a fine line in relation to the Constitution, particularly with respect to the 1st Amendment and the 4th Amendment’s protection of a person’s right to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” (Fechter, 2011). But if the Act is troubling, can we at least take some comfort in the fact that it appears to be under attack from all sides? Waller (2009) points out the fact that the Act had broad-based support when it was enacted and now it appears that a similarly broad-based coalition is arrayed against the act. Indeed, within the past few weeks, the Electronic Frontiers Foundation (EFF) filed suit against the Justice Department to compel the release of records related to Section 215, the provision that permits the FBI to obtain even the most mundane of business records under secret court order. Tellingly, the EFF proudly proclaims they’ve “successfully challenged” another aspect of the Patriot Act – National Security Letters, used to obtain phone records, information on banking transactions and internet activity, all with associated “gag orders” that prohibit disclosure of the effort to the public, including the individual being investigated. But even as they tout their effort in challenging these gag orders as unconstitutional under the 1st Amendment, the EFF admits that the overall practice remains in place (Timm, 2011). And well it should if the rule itself is valid. Certainly EFF has a right to challenge individual cases but if the language of the Act is sound, then it shouldn’t be subject to complete dismantling because a portion of it was used improperly.

Is the Patriot Act necessary in the “Age of Terrorism”? To be sure, terrorism existed before the Patriot Act was written and terrorism will continue to exist if the Patriot Act is abolished. The simple answer may be that some additional protections are necessary in a world where distinct factions are bent on imposing their ideology on others through any means no matter how violent. One can easily make the argument that some investigations must be undertaken promptly and in secret. Personally, I would reserve the right to choke a confession from someone who I suspected of placing a bomb at my children’s daycare center and then stand willingly in the face of whatever judgment might face me in the event I was right or wrong. It seems to me that the Patriot Act is functioning in largely the same manner today, rising and falling with the perceived threat level, coming under more or less scrutiny (often depending upon the political leanings of the executive office, I would argue) and constantly being challenged by one group or another. The concern I have is whether we’ll know quickly enough when the line has been crossed or will we be in the position of issuing apologies long after the fact? (The internment of Japanese-Americans in 1941-1945 comes to mind as a significant case in point.)

Explain if the Patriot Act is an unconstitutional infringement of individual rights or not.

Provide examples to support your claims.

Critics argue that provisions of the Patriot Act violate the First Amendment (freedom of speech, press, assembly and petition for redress of grievances) and the Fourth Amendment (the right to be secure from unreasonable searches and seizures). A focal point of opposition is the use of National Security Letters (NSL) by the Federal Bureau of Investigation. NSL’s allow the government to access records related to telephone and financial institutions. Anyone receiving an NSL request is barred from disclosing the matter ever, at any time, to anyone. Whether NSL’s violate the First Amendment or not depends at least partly on whether one measures the act’s constitutionality under a strict scrutiny standard or under a relaxed intermediate scrutiny. The Act prevents disclosure of information regarding investigations by “wire or electronic communication service provider[s], or officer[s], employee[s], or agent[s] thereof…to any person…” and it does so for an unending period of time (Gorham-Oscilowski & Jaeger, 2008, p. 630) Under the standard of strict scrutiny the Patriot Act’s restriction is acceptable if it is narrowly focused to promote an important Government concern and it will be ruled invalid if other less restrictive options are available. Under intermediate scrutiny, the standard is less restrictive and the disclosure prohibitions are allowed so long as they advance government’s best interests in matters unrelated to free speech and they don’t restrict more speech than necessary to carry out their ends. Advocates of the strict scrutiny standard argue that the Patriot Act does violate the Constitution’s First Amendment because the Act imposes the secrecy standard on all investigations without requiring authorities to justify the secrecy on a case-by-case basis and because the Act throws a permanent blanket of secrecy over the matter – the nondisclosure requirement never terminates (Gorham-Oscilowski & Jaeger, 2008).

With respect to the Fourth Amendment and individual privacy, opponents of the Patriot Act argue that NSLs do not require sufficient showing of cause relative to a terrorist investigation and they do not provide an opportunity for proper judicial oversight.

Normally, I argue that the constitutionality of an act can be borne out in its case history, however, the fact that NSLs are so secretive, leads me to be concerned that there just isn’t a sufficient record of court challenges to prove the matter one way or the other. In Doe v. Ashcroft, an internet service provider challenged an NSL records request and their case was upheld by the Court, with the nondisclosure provision being likened to using “a sledgehammer when a flyswatter would do” (Gorham-Oscilowski & Jaeger, 2008, p. 634). In Doe v. Gonzalez, the court again sided with a challenger who contested an NSL request for library computer records. The gag order provision was found to be overly broad and eventually the names of the recipients of the NSL were disclosed when the government dropped its opposition (Gorham-Oscilowski & Jaeger, 2008).

So based on limited court history, it seems that aspects of the Patriot Act are unconstitutional. It strikes me that when the Act comes up for review and renewal, our leaders would do well to consider adding some kind of sunset provision into the secrecy requirement surrounding the issuance of NSL’s. Indeed, this has been the case, as Waller (2009) notes, that the gag order provision has been relaxed at least to the extent that NSL recipients are now at least permitted to consult an attorney. Further, the Justice Department is now required to report the number of demands granted and declined, but not much else (p. 384). In this regard, I view the Patriot Act as a self-correcting instrument. My only hope is that the corrections are made in a timely fashion in order to avoid truly egregious violations of individual rights.

How is it possible for civil liberties to co-exist with a perpetually-enabled Patriot Act?
Support your answer.

Gorham-Oscilowski and Jaeger (2008) argue that no matter the modifications made, elements of the Patriot Act (specifically NSLs) “will still raise significant questions in terms of the actual information behaviors of citizens” (p. 641) and I’m inclined to agree, simply because in our society, it has come to pass that no one is ever completely happy or satisfied with the manner in which the government undertakes its business (or our business).

The United States is surrounded – indeed it’s full of – people who are bent on seeing our culture and way of life turned upside down. Schulhofer and McKay, commenting in Waller (2009) make the absurd statement that, “No one, of course, seeks public disclosure of operational details, such as the names of suspects targeted or the technical capabilities of the equipment used.” I’m inclined to chalk this statement up to stupidity, but will simply call it ignorant since it was made in the days before Julian Assange and WikiLeaks were household words. Of course there are people out there who want to know the details surrounding the government’s investigations into all manner of crimes and terror threats – that is why the Patriot Act has gag order provisions! But having said this, I must also admit that too much secrecy, for too long a time, is a distinct danger and I can only take comfort in the fact that the Patriot Act comes up for review and when it does, it would seems that our leaders are willing to revise the Act in accordance with the preceding court findings. The Patriot Act is a fluid, dynamic bit of legislation that has evolved since its birth in the fright-filled days after September 11th. I don’t think the Patriot Act is nearly as draconian as it was when first written, and I suspect in another ten years we’ll find it even less imposing, and ultimately, we will arrive at a day when the provisions of the act have become so eroded as to allow another massive terror strike on our soil, at which point, a new, evermore draconian response will be implemented. That seems the way of things here. In the meantime, stand under the umbrella of protection provided by the Patriot Act or be prepared to get wet from the rain – I don’t think it can be both ways.

References

Fechter, J. (n/d). Patriot act turns 10 years old. The Ranger. Retrieved November 12, 2011, from http://www.theranger.org/mobile/patriot-act-turns-10-years-old-1.2666392

Gorham-Oscilowski, U. & Jaeger, P. T. (2008). National security letters, the usa patriot act, and the constitution: the tensions between national security and civil rights. Government Information Quarterly, 25(4), 625-644.

Timm, T. (October 26, 2011). Ten years after the patriot act, a look at three of the most dangerous provisions affecting ordinary americans. Electronic Frontier Foundation. Retrieved November 12, 2011, from https://www.eff.org/deeplinks/2011/10/ten-years-later-look-three-scariest-provisions-usa-patriot-act

Waller, B.N. (2009). You Decide! Current debates in Criminal Justice. Upper Saddle River, NJ: Prentice Hall.

© M. I. Smith 2011