Brown University

War on the Horizon: Reflection on the The U.S. Patriot Act and Civil Liberties by Roxana Sanchez @ Brown University

With the recent political escalations between the United States and North Korea, war seems on the horizon. Political scientists Steven Levitsky and Daniel Ziblatt published an op-ed in the New York Times last year about Donald Trump’s actual threat to American democracy. They argue that despite holes in constitutional democracies, it has been the U.S.’s strong foundation and practice of democratic norms that have prevented the exploitation of the weaknesses in the constitution to allow democratic backsliding. The op-ed ends in a solemn note, explaining how the United States constitution, under normal circumstances, could almost certainly survive an administration with just autocratic tendencies such as Trump’s. Under any type of crisis situation, however (war, terrorist attack, etc.) the same statement would not hold true. Levitsky and Ziblatt cautionary tone bring into question what previous reference exists regarding the reversal of democratic norms in crisis situations in America.

Though the United States has had a series of different crises, the most prominent one in recent  memory, has indisputably been the 9/11 terrorist attacks. Though American democracy is clearly still alive and well after the incident, I would argue that American democracy did not emerge as unscathed as commonly perceived. In fact, there are some policies created in that era that contribute to democratic erosion today. The 9/11 attacks and The War on Terrorism gave the Bush administration the political capital needed to pass invasive domestic and foreign policy measures that might not have otherwise been publicly accepted. The ratification of The Patriot Act is one example.

The U.S. Patriot Act was swiftly passed by congress in October of 2001. The Patriot Act was passed as a defensive facade, advertised as an effort to make the United States more secure. In the context of post-9/11, The Patriot Act seemed like a responsible, even necessary reaction by the U.S. government. In a poll conducted by CNN and Gallop in 2004, 43% of Americans said they viewed the measures inscribed in the act as just right, 21% it didn’t go far enough, and only 23% thought it went too far. The key features of the act give the government sweeping surveillance capabilities.

There are some provisions of the act that were very evident in how they would impact U.S. citizens in their normal affairs, like the creation of the Transportation Administration Agency (TSA). While the erection of inspection gear across airports all over the United States is obvious, less obvious were the provisions in Title II regarding surveillance. Title II created and reformed existing legislation to expand the government’s capacity to legally obtain personal information. Some of the most questionable provisions under Title II are the“Sneak and Peek” and National Security Letters (NSL).

Sneak and Peek

The “Sneak and Peek” was a core change in the understanding of the 4th amendment. The 4th amendment guarantees freedom from unreasonable searches and seizures. “Sneak and Peek” allows government agents to enter private residences (house, apartment, office, etc.) when the resident isn’t there, it also allows for seizure of property (including telecommunications devices), and not inform occupant until after the fact. While “Sneak and Peek” still requires a warrant and eventually informing the owner, it completely twisted basic understanding of the 4th amendment and protections and transparency against searches and seizures.

National Security Letters 

According to the American Civil Liberties Union (ACLU), these provisions are in violation of our constitutional rights. National Security Letters (NSLs) are letters that grant the government permission to search phone records, computer records, credit history, and banking history. NSLs are issued by FBI agents and without a judge’s approval. The FBI, and therefore the U.S. Department of justice, then has access to a considerable amount of data, that a judge nor the person implicated consented to, that could later be used to prosecute on other grounds. And in fact this did occur. The ACLU reports that between 2003 and 2005, 53 criminal referrals were made as a result of NSLs. Of those 53, 19 involved fraud, 17 involved money laundering, and 17 were related to immigration. Not a single case was referred on the grounds of terrorism. Another eroding aspect of the NSLs is the “gag order” provision. In essence, people who are served with an NSL are legally prohibited from telling anyone about it, also meaning a prohibition on seeking legal counsel, and consequently due process of law (a 5th Amendment Constitutional right). To this day, there isn’t a provision that mandates the destruction of this personal information, meaning the government can access and use this information whenever it pleases in the future.

The culmination of these publicly unknown extreme measures of surveillance came with the Wikileaks scandal in 2010. Former CIA employee, Edward Snowden conspired to expose the high level of government surveillance through leaking thousands of documents the government had collected along with other classified information. This incident really brought the issues of privacy rights and government transparency into popular discourse. In a 2013 Gallup poll regarding the collection of records of telephone and internet communications, and 53% disapproved while only 37% approved.

Other Consequences

Aside from the restriction on civil liberties, there were also other unexpected consequences as a result of the Patriot Act. This legislation was produced in a specific context, but the legal interpretation has not been limited to that context. Title IV of the Patriot Act, labeled “Protecting the Border,” has served as the initial stream of a cascade of highly restrictive immigration policies that the Trump Administration has not hesitated in continuing. The enactment of cruel policies employed in immigration detention centers, cancellation of DACA, the cancellation of TPS from many Caribbean and Latin American countries, and the notorious immigration raids that occured weeks after Trump’s inauguration are just a few examples of how the Patriot Act set a precedent of surveillance and prosecution that bled elsewhere to deal with issues that are not in the context of national security.

Additionally, the Patriot Act served as Bush’s green light to conduct operations in Guantanamo Bay that were physically abusive to detainees and have been accused as being human rights violations. While the Obama administration was vehemently against operations in Guantanamo and President Obama frequently expressed his wishes to close it, Guantanamo Bay is still operational and holding detainees– waiting for a command from Trump.

As we warily look outwards towards the threat of potential North Korean nuclear missiles, we should reflect on what the real threat is. As terrorizing as nuclear war sounds, the probabilities of that occurring are substantially lowered by political mechanisms of mutually assured destruction and deterrence. However, Trump using North Korean threats, or any other crisis, as an excuse to legally expand government intrusions on civil liberties, is not so improbable.

 

Links to sources used:

 

2004 Gallup Poll:

http://news.gallup.com/poll/10858/americans-generally-comfortable-patriot-act.aspx

 

2013 Gallup Poll:

http://news.gallup.com/poll/163043/americans-disapprove-government-surveillance-programs.aspx

 

ACLU Fact Sheet on Patriot Act:

https://www.aclu.org/issues/national-security/privacy-and-surveillance/surveillance-under-patriot-act

 

ACLU Flyer about Patriot Act:

https://www.aclu.org/files/FilesPDFs/patriot%20act%20flyer.pdf

 

 

1 Comment

  1. Lukas McMahon

    December 11, 2017 at 8:48 pm

    You raise an interesting point that one of the greatest threats to democracy has been legally in place since 2001. Zero terrorist attacks have been prevented using the powers the Patriot act grants to law enforcement, it violates Americans’ constitutional rights, and it has been heavily criticized by civil libertarians on both sides of the aisle. The Trump administration is openly in favor of the Patriot act and the Foreign Intelligence Surveillance act, even going so far as to recommend expanding the powers of section 702 so that law enforcement could spy on nearly every single American’s digital activity. This expansion is expected to pass without any justification of war or a specific terrorist attack. While the patriot act and section 702 garnered lofty critiques from the ACLU, like you said, both laws still see significant support from the voting population. 37 percent is a minority, but still a significant number of people. The Obama administration attempted to roll back some of the patriot act’s provisions and put expiry dates on others, but the law ultimately remains nearly as overreaching as it was in 2008. You mentioned that Trump’s threats of nuclear war with North Korea may give way to a situation where civil liberties could be increasingly infringed upon, but it seems like the US may be in a position where such a smoke bomb wouldn’t even be needed to pass more of this kind of legislation.

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