BY NATALIE VAN BOOVEN
Former U. S. President Calvin Coolidge once said, “Patriotism is easy to understand in America. It means looking out for yourself by looking out for your country.” Nowhere in recent American history has this point become clearer than in the wake of 9/11, especially when the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001—in short, the USA PATRIOT Act—was passed. At the time, it was hailed as the thing we needed to stop terrorism on our own shores. In fact, enthusiasm for the Act was such that former Sen. Russ Feingold (D-Wis.) was the only Senator to reject it.
Now, 14 years later, several sections of the PATRIOT Act are set to expire in June, namely Section 206 (the roving wiretap provision) and Section 215 (the library provision). Section 6001 of the Intelligence Reform and Terrorist Prevention Act of 2004 (the lone wolf provision) is also up for consideration. Though the deadline will not pass for another few months, the mere idea of re-authorizing the PATRIOT Act is already an extremely hot topic, both within and without Congress.
Among the people who support re-authorization, Rep. John Conyers (D-Mich.) and Sens. Patrick Leahy (D-Vt.), Mitch McConnell (R-Ky.) and Marco Rubio (R-Fla.) are some of the biggest names. On the whole, they all support re-authorization because of the Act’s capacity to stop terrorist activities. Rubio in particular worries that “innocent Americans [will] pay the ultimate price” if the U. S. fails to “develop a strategy that is commensurate to the threat,” which is why he defends the National Security Agency’s spy programs and advocates for permanent re-authorization. McConnell, meanwhile, has said, “. . . now is not the time to be considering legislation that takes away the exact tools we need to combat ISIL.” And the tools are extensive.
The PATRIOT Act’s 10 sections attempt to block potential terrorists. Its scope is huge. Close to 20 laws—going as far back as the Foreign Agents Registration Act of 1938 and the National Security Act of 1947—have been altered in some way by the Act, whose most sweeping subsections are Title II (Enhanced Surveillance Procedures), Title III (Anti-Money Laundering to Prevent Terrorism), and Title IV (Border Security). Put briefly, Title II aims to scrutinize suspected terrorists, suspected computer abuse or fraud and suspected activity from foreign spies; Title III aims to stop, catch and indict money laundering, which could help fund terrorism; and Title IV aims to empower the U. S. Attorney General and the Immigration and Naturalization Service even more than in the past.
At former Rep. Richard Armey’s (R-Texas) urging, the PATRIOT Act contained several sunset provisions that were supposed to expire on Dec. 31, 2005. Unfortunately, in July of that year, both houses of Congress passed the USA PATRIOT and Terrorism Prevention Act of 2005, which not only re-authorized all but two of Title II’s sunset provisions (including Sections 206 and 215) but also created new provisions, such as giving the Secret Service new powers and enhancing seaport security. The Act would be re-authorized again in 2006 and 2011, this last time with an extension of four years.
I highlight Sections 206 and 215 because of their significance to the people who oppose re-authorization, including the Cato Institute, the American Civil Liberties Union, the American Library Association and the Electronic Frontier Foundation. These groups all argue in so many words that the PATRIOT Act, in its enthusiasm to find terrorists by any means necessary, threatens to override the protections of the Bill of Rights. The ALA said as much in its statement on the Act, which reads in part, “Libraries cooperate with law enforcement when presented with a lawful court order to obtain specific information about specific patrons; however, the library profession is concerned [that] some provisions in the USA PATRIOT Act go beyond the traditional methods of seeking information from libraries.” In other words, the PATRIOT Act’s broad capacities to find potential terrorists worries the ALA, as it worries the other aforesaid groups; and Sections 206 and 215 worry them the most
Section 206, known as the “roving John Doe wiretap” section, lets the government acquire surveillance orders that conceal who will be wiretapped, whether that “who” is a person or an organization. Presumably, such anonymity would allow law-enforcement agencies to do their work without alerting potential terrorists or alarming the public. However, the lack of identification allows feelings and hunches, rather than hard data, to guide searches, which conflicts with the Fourth Amendment’s rules about searches and seizures. Without names or other markers, The Big Lebowski’s premise could repeat itself many times over.
Meanwhile, Section 215, known as the library provision, lets the government acquire “any tangible thing” that could help a terrorism investigation, even without any indications that the thing(s) in question have to do with terrorist undertakings. Again, such broadness would presumably allow law enforcement to get their hands on as much evidence to build a case as possible. After all, when a man was arrested in D. C. for supposedly planning a shooting spree, House Speaker John Boehner said, “We would never have known about this had it not been for the FISA program and our ability to collect information on people who pose an imminent threat.” (FISA refers to the Foreign Intelligence Surveillance Act of 1978, which underwent major changes because of the PATRIOT Act.) However, the lack of specificity remains a problem, as it also conflicts with the Fourth Amendment’s “searches and seizures” clause. As it stands, Section 215 enables the National Security Agency to collect telephone records in bulk without first checking whether those records even pertain to national security.
By now, it should be evident that the PATRIOT Act is both comprehensive and incomprehensible, considering that it tries to tackle a broad threat with broad words. If, like Sen. Rubio, you believe that “the world is as dangerous as ever, and extremists are being cultivated and recruited right here at home,” then you can stop reading this article now. On the other hand, if the Act’s broadness bothers you, then you can take comfort in knowing that you are very far from alone. From the beginning, opponents of the Act pointed out the opportunistic nature of its passing. Another red flag, as pointed out by Michael Moore in Fahrenheit 9/11 and by Dahlia Litwick and Julia Turne in Slate magazine, is that hardly anybody in Congress read the bill. Thus, hardly anybody in Congress would know what the Act says about combating terrorism.
Besides, the broadness of the PATRIOT Act is worrying in yet another way, but this particular worry has to do with the nature of political writing. In April 1946, just after the end of WWII, George Orwell published his essay “Politics and the English Language,” which says in part, “In our time, political speech and writing are largely the defence of the indefensible. Things like the continuance of British rule in India, the Russian purges and deportations, the dropping of the atom bombs on Japan, can indeed be defended, but only by arguments which are too brutal for most people to face, and which do not square with the professed aims of the political parties. Thus political language has to consist largely of euphemism, question-begging and sheer cloudy vagueness.” In other words, even if Congress had read and debated the bill that became the PATRIOT Act, the Act itself would still have been subject to the influence of the party line. Therefore, imprecise and evasive writing would still have been a danger.
Sen. Rubio and the ALA are both right to worry about their fellow Americans’ fates, but the Act’s attempts at broadness—at least without any meaningful checks and balances—try too hard to do too much for too many people.