The USA Patriot Act became law ten years ago today. Bearing the awkward name, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, it passed the US Senate by an overwhelming vote of 96-1, with only Sen. Russ Feingold (D-Wisconsin) in dissent, voicing deep concerns about the impact the new law would have on civil liberties and privacy rights.
During the debate over the Patriot Act, Senator Feingold observed that the “founders who wrote our Constitution and Bill of Rights exercised that vigilance even though they had recently fought and won the Revolutionary War. They did not live in comfortable and easy times of hypothetical enemies. They wrote a Constitution of limited powers and an explicit Bill of Rights to protect liberty in times of war, as well as in times of peace.”
He traced the dark periods in our nation's history when civil liberties took a back seat to what appeared at the time to be the legitimate exigencies of war, including the Alien and Sedition Acts, the suspension of habeas corpus during the Civil War, the internment of Japanese-Americans, German-Americans, and Italian-Americans during World War II, the blacklisting of alleged communist sympathizers during the McCarthy era, and the surveillance and harassment of antiwar protesters, including Dr. Martin Luther King Jr., during the Vietnam War.
Feingold pointedly quoted Justice Arthur Goldberg in Kennedy v. Mendoza-Martinez (1963):
It is fundamental that the great powers of Congress to conduct war and to regulate the Nation's foreign relations are subject to the constitutional requirements of due process. The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with fundamental constitutional guarantees which, it is feared, will inhibit governmental action. 'The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances…. In no other way can we transmit to posterity unimpaired the blessings of liberty, consecrated by the sacrifices of the Revolution.
Feingold observed that even within the single month since 9/11, there was “ample reason for concern” over “the potential loss of commitment to traditional civil liberties.”
“Even as America addresses the demanding security challenges before us, we must strive mightily also to guard our values and basic rights,” he said. “We must guard against racism and ethnic discrimination against people of Arab and South Asian origin and those who are Muslim.”
Feingold quoted the great jurist Judge Learned Hand, who said during World War II: “[T]he spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias….”
With tragic prescience, Feingold noted that, “There is no doubt that if we lived in a police state, it would be easier to catch terrorists. If we lived in a country that allowed the police to search your home at any time for any reason; if we lived in a country that allowed the government to open your mail, eavesdrop on your phone conversations, or intercept your email communications; if we lived in a country that allowed the government to hold people in jail indefinitely based on what they write or think, or based on mere suspicion that they are up to no good, then the government would no doubt discover and arrest more terrorists.”
“But that probably would not be a country in which we would want to live. That would not be a country for which we could, in good conscience, ask our young people to fight and die. In short, that would not be America.”
Feingold complained about how the Bush administration was “relentlessly” pushing the Patriot Act “without deliberation and debate.” As chair of the Constitution Subcommittee of the Judiciary Committee in the Senate, Feingold expressed deep concern that the legislation, “did not strike the right balance between empowering law enforcement and protecting constitutional freedoms.”
Under one provision, Feingold warned that, “the government can apparently go on a fishing expedition and collect information on virtually anyone,” which he called “a truly breathtaking expansion of police power.”
He called the debate on a bill that “may have the most far-reaching consequences on the civil liberties of the American people in a generation,” a non-debate and not the finest hour for the United States Senate.
Seeing so clearly into the future, Feingold warned that it was immigrants from Arab, Muslim and South Asian countries who would bear the brunt of the Patriot Act. “In the wake of these terrible events, our government has been given vast new powers, and they may fall most heavily on a minority of our population who already feel particularly acutely the pain of this disaster.” And in turn, Feingold reminded us that Justice Louis Brandeis foresaw the future in a 1928 dissent, when he wrote:
The progress of science in furnishing the Government with means of espionage is not likely to stop with wire-tapping. Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home…. Can it be that the Constitution affords no protection against such invasions of individual security?
Feingold responded by insisting that we, “must maintain our vigilance to preserve our laws and our basic rights. You and I have a duty to analyze, to test, to weigh new laws that the zealous and often sincere advocates of security would suggest to us.” Acknowledging that, “protecting the safety of the American people is a solemn duty of the Congress,” Feingold urged that, “Congress will fulfill its duty only when it protects both the American people and the freedoms at the foundation of American society. So let us preserve our heritage of basic rights. Let us practice that liberty. And let us fight to maintain that freedom that we call America.”
Ten years later, due to the unprecedented secrecy shrouding anything labeled “anti-terrorism,” we still do not know the full extent of what has been done under the Patriot Act. For example, we do not know the extent of surveillance activities conducted by the National Security Agency (NSA) that so alarmed even officials at the Bush Justice Department that, in March 2004, they nearly resigned en masse. We do know that the activities must have been extreme to provoke such a reaction from the conservative lawyers serving under then-attorney general John Ashcroft.
The little we do know about the NSA's post-9/11 spying operations is due to the courage of government whistleblowers who risked their careers – and criminal charges – to expose the fact that the NSA has engaged in unconstitutional and illegal domestic eavesdropping and data mining operations against innocent Americans. In a comprehensive new report, “A Call to Courage: Reclaiming Our Liberties Ten Years After 9/11,” the American Civil Liberties Union (ACLU) reveals that, in the immediate aftermath of 9/11, the NSA tapped directly into major American communications centers, with the cooperation of US telecommunications companies, to access billions of American emails, phone calls and other communications, which the agency then combed through for people it deemed “suspicious.”
Despite the exposure of these massive surveillance programs, Congress and the courts have miserably failed to fulfill their constitutional duties under our system of checks and balances. Although NSA's warrantless wiretapping program brazenly violated the law, Congress responded not with oversight but with a blank check. It legalized the NSA's eavesdropping activities – and authorized more. And when American scholars, journalists and nonprofit groups, represented by the ACLU, went to court to challenge the legality of the NSA's eavesdropping because they feared their communications had been targeted, the Sixth Circuit Court of Appeals dismissed the suit. Even though the court acknowledged that the NSA's surveillance was conducted in secret, it held that the plaintiffs could not sue because they could not prove that the NSA had spied on each one of them – insulating the NSA's program from judicial review. The Supreme Court refused to hear an appeal of the case.
We now live in what the ACLU calls a post-9/11 national surveillance society. Sen. Feingold's and Justice Brandeis' worst fears have come true. The executive branch has used technological advantages to monitor Americans who are not suspected of any wrongdoing. The NSA is now able to intercept and store 1.7 billion – that's billion – emails, phone calls and other communications. Our own government can spy on our private speech and actions through our mobile smartphones, GPS location tracking, search engines and more.
This constitutes the very kind of profound threat to democratic government that Feingold openly warned us about. The ACLU report points out that when individuals cannot object to secret governmental activities which are concealed from them, checks and balances are particularly critical. But when the other branches of government that are responsible for providing those checks abdicate their responsibilities, the result is a national surveillance society in which Americans' right to privacy is under unprecedented siege.
Under the Constitution, the right to privacy is founded on the fundamental principle that our government must have actual suspicion that someone is breaking the law, or is actively preparing to do so, before monitoring Americans in our daily activities. Usually, the government must convince a judge there is adequate justification to authorize such surveillance. Our Constitution is intended to protect us from unwarranted government intrusion into our private lives.
But in the name of fighting terrorism, Congress has weakened Americans' privacy protections. Exploiting the fear that followed 9/11, just as Feingold had predicted, the Bush administration asked Congress to loosen critical constraints on surveillance under which the intelligence community and law enforcement agencies had long operated – without ever demonstrating that those constraints contributed to the attacks. Congress compliantly passed the Patriot Act, under which, we have reason to believe, the Bush administration – and, now, sadly, the Obama administration – have conducted warrantless “preventive” surveillance of innocent Americans without judicial review.
For example, the ACLU points out that the Patriot Act expanded the FBI's authority to use National Security Letters (NSLs) to secretly demand telecommunications, credit and financial information from private companies not just relating to suspected terrorists, but to anyone the FBI deems “relevant” to an FBI investigation.
Before 9/11, the FBI already had the authority to use NSLs to obtain information about suspected spies or international terrorists, but the Patriot Act removed the requirement that the FBI actually suspect that a person about whom it collected information was engaged in wrongdoing. Without that fundamental constraint, the FBI has engaged in flagrant violations of law, and Congress has been docilely complicit in those violations, exercising its oversight authority just enough to be on notice that violations are occurring, but not enough to curb them.
In 2005, when Congress was debating whether to extend expiring provisions of the Patriot Act, then-attorney general Alberto Gonzales and FBI director Robert Mueller brazenly testified that there were no “substantiated” allegations of FBI abuse. But because the FBI exercised its Patriot Act powers in complete secrecy, Congress had no way to verify these claims, so it dutifully reauthorized the Act. At least it ordered an audit of the FBI's activities.
And guess what? The Department of Justice inspector general released five damning audit reports, “substantiating” thousands of violations of law and policy, just as Feingold had predicted. Yet in the face of such uncontested evidence of the FBI's widespread misuse of its Patriot Act authority, did Congress repeal any of the sweeping powers it had granted? No. Instead, Congress, at the urging of both Presidents Bush and Obama, has repeatedly reauthorized all expiring Patriot Act provisions without narrowing them in any way.
Tragically, despite his campaign rhetoric, President Obama, like President Bush, has used excessive secrecy to hide potentially unconstitutional surveillance. Two members of Congress have been ringing alarm bells about the government's use of Patriot Act authority, urging additional congressional oversight – but to no avail. Hobbled by executive claims of secrecy, Sens. Ron Wyden (D-Oregon) and Mark Udall (D-Colorado) have warned their colleagues that the government is operating under a “reinterpretation” of the Patriot Act, under which the executive branch is engaging in dragnet surveillance in which “innocent Americans are getting swept up.”
According to the ACLU, the heart of the national surveillance society is government “data mining” based on the dubious and unproven premise that “terrorist patterns” can be detected by searching the enormous mass of information accumulated by average Americans, whose lives are quirky and eccentric, filled with things that may look suspicious to a snooping government spy but which are entirely innocent.
In 2002, we learned about the Total Information Awareness (TIA) program, under which the Pentagon was planning to gather information from thousands of government and commercial databases worldwide, covering every facet of the everyday lives of ordinary Americans, to create one giant database that military and law enforcement officials could easily search for “suspect activity” related to terrorism. After the press exposed TIA, Americans from across the political spectrum spoke out, and Congress shut down the program. Or so we thought. Instead, Congress slipped back into its compliant ways, ignored the public's demand for privacy protections and allowed key data-mining elements of TIA to be perpetuated under the secret umbrella of the NSA, where we cannot monitor their use.
Government data mining is now being replicated in a variety of other programs at the federal, state and local levels to spy on Americans in virtually complete secrecy. The ACLU has identified several so-called Suspicious Activity Reporting (SAR) programs, named “eGuardian,” “Eagle Eyes,” “Patriot Reports” and “See Something, Say Something,” which are now run by the director of national intelligence, the FBI, the Department of Defense (DoD) and the Department of Homeland Security (DHS). Once the government collects data about alleged “suspicious” activity, it can retain it for a lifetime, even when the information shows the person is not a threat.
Each of the over 300 million cell phones in the United States reveals its location to the mobile network carrier whenever it is turned on, and the Justice Department is aggressively using cell phones to monitor people's location, claiming that it does not need a warrant. With thousands of government requests coming to private telecommunications carriers every month, the ACLU reveals that Sprint Nextel even set up a dedicated web site so that law-enforcement agents sitting at their desks can access the private location records of innocent Americans.
Yet for all the privacy we have relinquished in the name of preventing terrorism, and for all the national treasure spent on surveillance, we are no safer. Each time Congress is due to re-examine expiring Patriot Act provisions, for example, government officials warn in dire and threatening tones that without secret surveillance and data collection, our nation's security will be jeopardized. We cannot fully evaluate these warnings because of secrecy constraints, but internal investigations make clear that the warnings are infused with baseless fearmongering.
For example, a combined review by inspectors general at key security agencies of the NSA's secret wiretapping was unable to turn up any evidence that the program made us safer, despite its unprecedented scope. The same is true for NSLs. From 2003 to 2005, the FBI made close to 150,000 NSL requests. But the FBI inspector general documented only one conviction in a terrorism case using data from NSLs during the three-year period, and found no instance in which an NSL request helped to prevent an actual terrorist plot.
Consequently, there is little or no evidence of additional plots foiled, arrests made or lives saved as a result of these massive data mining and surveillance programs. The ACLU observes that: “The reality is that as governmental surveillance has become easier and less constrained, security agencies are flooded with junk data, generating thousands of false leads that distract from real threats. In the name of finding the terrorist needle in a haystack, our government has built the biggest haystack in history – and it is growing all the time.”
All too often, post-9/11 government surveillance has targeted people for expressing political opinions, protesting government policies or exercising their religious freedom. The ACLU has documented examples of political spying, monitoring and harassment of Americans based on their constitutionally protected First Amendment activities by federal, state and local officials in at least 33 states and the District of Columbia. The government has spied on racial and religious minority groups and community organizations, college groups, military reservists calling home to their families, journalists, aid workers, political activists and many others.
In its report, the ACLU warns that it is “not too late to strengthen our laws, to take back our data, and to ensure that government surveillance is conducted under effective and reasonable constraints, subject to meaningful oversight.” But the ACLU reminds us that, “we have to speak up now, before our surveillance society is irrevocably entrenched and we find that we have permanently sacrificed our essential values.” Echoing Feingold's worse fears, the ACLU warned that, “we risk changing our national character and surrendering one of the key freedoms we strive to protect – our right to privacy and our ability to speak, dissent, exchange ideas, and engage in political activity without the chilling fear of unwarranted government intrusion.”
A version of this article was published in the Los Angeles Daily Journal.
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