The Unconstituitionality of the USA PATRIOT Act
The Unconstituitionality of the USA PATRIOT Act
by Michael Hall Politics
Original Article from Generation Cobweb
September 11, 2001. The morning we will never forget and the day America changed forever. It was a day in which thousands of Americans perished in an instant. It was a day in which Americans came to face with a fear that was unknown beforehand. It was believed that America was impenetrable, but this day’s actions proved otherwise. Something had to be done to prevent this from happening again. The USA Patriot Act was the solution prescribed by members of the Bush administration. After it was enacted, it gave unprecedented powers to the executive branch of government to hunt down the terrorist threat. But the concentration of so many great powers in one branch of government destroys our concept of separation of powers, which is one of the fundamental aspects of our government system. In addition, the powers given to the executive branch could easily be misused on ordinary American citizens, which would be in direct violation of our constitutionally protected civil liberties, and without the targeted group or individual ever knowing. If left unchecked, the Orwellian society we knew as fiction may become a reality. Though at the time it was viewed as necessary and relatively harmless, the USA Patriot Act is arguably one of the greatest assaults on American civil liberties, particularly in regards to its direct violation of our constitutional rights of due process, association, and our protection against unreasonable search and seizure.
The legislation for the USA Patriot Act was insufficiently reviewed prior to its enactment. In the weeks following September 11th, the nation was still feeling the effects of the disaster, as it was undoubtedly a period of intense hardship. Americans started to unite together behind its newfound nationalism. Citizens, as well as lawmakers, were willing to do anything to bring the perpetrators to justice. So, according to Henry E. Hockeimer, in his article “Re-Examining the Controversial USA Patriot Act” found in the The Legal Intelligencer, it was just forty-five days after the horrific events in New York and Washington, the USA Patriot was signed into law (par. 12). Now America had the tools required to bring this new breed of terrorists to justice. But it seems that in the rush to pass this legislation, many congressmen had neglected to even review the law they were passing (Hockeimer par. 3). To be more specific, in their book Equal Justice in the Balance: America’s Legal Responses to the Emerging Terrorist Threat, Raneta Lawson Mack and Michael J. Kelly point out that “prior to its passage the Patriot Act was not carefully analyzed, studied, or debated; no testimony from experts or impacted parties was solicited or heard; and no conference or committee reports were issued” (116). So legislators had rushed to judgment based on nothing more than their emotions. And emotions, of course, are not a reasonable method of judging anything. “Congress also neglected its constitutional responsibility to oversee and limit, if necessary, the executive’s power to abuse its new authority, a startling yet patent indication of excessive deference to the executive branch” (Mack 118). So not only is Congress negligent for passing legislation it did not properly review, but it is also irresponsible for authorizing legislation that upsets the balance of power in government. However, there was one group who knew exactly what they were doing and were using this emotionally intense time to their advantage—none other than the Bush administration.
So we know that the Patriot Act legislation was passed, largely un-reviewed, amid the emotional drama following the events of September 11th. But what could the executive branch gain by such extreme legislation?
The USA Patriot Act gives unprecedented powers to the executive branch of government. In Donald F. Kettl’s book Equal Justice in the Balance: America’s Legal Responses to the Emerging Terrorist Threat, we find that the new war on terror was being used to advance the executive branch’s agenda to gain extraordinary powers that beforehand would be unheard of (106). These new powers would not have been gained prior to the attacks because they upset the balance of power within the government. And it appears that a good deal of the changes brought about by the Patriot Act were not primarily for fighting terror, but “were an effort to update many criminal law enforcement tools” (Hockeimer par. 3). And many of these new executive law enforcement tools violate our civil liberties. For example, in Jennifer Van Bergen’s book The Twilight of Democracy: The Bush Plan for America, we find that this controversial new legislation:
Allows surveillance and searches to be conducted without probable cause, by resorting to foreign intelligence law. The Act circumvents First Amendment protections by permitting convictions on the basis of mere association or financial support, without any requirement of knowledge or participation in crime. (13)
Although these new fascist-resembling “law enforcement tools” may help authorities track down and capture terrorists, it can not be denied that such unrestricted power could be easily abused by those who control it.
So the executive branch has gained an immense amount of new power that could possibly be abused. But how could one misuse it?
Under the terms of the USA Patriot Act, our constitutional right of due process has been violated. The right to a fair trial is by far one of our most important civil liberties. But to ensure our national security, our lawmakers have all but shattered this protected right. Seemingly, this provision in the Patriot Act only applies to terrorists, but the ambiguous language of the legislation can bring innocent American citizens under its jurisdiction. For example, “a foreign organization that is designated as ‘terrorist’ can challenge its designation, but someone who supports it cannot. This means that a foreign group may be granted more due process than a criminal defendant” (Van Bergen 115). Now this is ridiculous. For one, what is the likelihood that a terrorist organization, such as Al Qaeda, will challenge its designation as a terrorist organization? The chances are slim. But someone who is charged, not proven guilty, of supporting a terrorist organization is prohibited from challenging his/her designation. This basically states that anyone accused of being linked to a terrorist organization forfeits their right of due process. Also, the accused could be incarcerated for the rest of his/her life while never being given a chance to dispute the designation (Van Bergen 115). The “innocent before being proven guilty” part of our judicial system is obviously being abused under this new oppressive legislation.
It is clear that the USA Patriot Act is in violation of our due process rights. But has this power been enacted since its conception?
The USA Patriot Act’s violation of due process rights has led to the unjust and indefinite incarceration of a large number of innocent civilians. For example:
As of May 2003, only three of the 1,200 ‘suspected terrorists’ arrested in the first seven weeks [after the enactment of the PATRIOT Act], and none of the nearly 4,000 more foreign nationals arrested since under related antiterrorism initiatives, turned out to warrant even a charge of terrorist-related criminal activity.” (Van Bergen 112)
So not only are these civilians being held for years being deprived of their right of due process, but the government has only charged three of the prisoners out of nearly 6,000 over almost a two-year period. These obviously innocent prisoners are being held illegally by the U.S. government under the faulty disguise of fighting terrorism at compounds such as that of Camp X-Ray at Guantanamo Bay, Cuba. And it even has been reported that children are among those being held at the compound (Kettl 100). Even American citizens cannot escape the wrath of this fascist legislation. Bush has accused a number of American citizens as terrorists and has placed them in similar compounds, also withholding all their constitutionally protected legal rights, such as that of due process (Van Bergen 113). Not only are these actions unconstitutional as an obvious violation of our civil liberties, but this extraordinary amount of unchecked power within the executive branch of government is being abused by those in power. Is this America or Nazi Germany? Is this the “land of the free,” or the “land of the imprisoned?” And all of this is happening right in front of our eyes.
The provision in the USA Patriot Act for the suspension of due process is being abused by the executive branch of government, especially in the form of indefinite detention. But the Act is also unconstitutionally attacking our right to associate with others.
Under the terms of the USA Patriot Act, our constitutionally protected freedom of association is being violated. In the weeks following the attacks in New York and Washington, literally “thousands of Arabic or Muslim aliens were rounded up after 9/11 and detained for no reason other than that they were Arabic or Muslim” (Van Bergen 116). These innocent civilians were imprisoned because of their race or because of their religious affiliation. Is there any more obvious form of oppression than this? Anyone who is familiar with history, particularly 20th century history, should be familiar with such a fascist concept. How can anyone believe that we are living in a democratic society when such radical actions are being implemented by our government? According to the American Civil Liberties Union website, the terminology of the Patriot Act is so ambiguous that its powers could be implemented to gather a variety of private information from innocent civilians, especially in regards to groups, legitimate or illegitimate, the individual belongs to (“Case” par. 11). So it is obvious that the executive branch could abuse the power of the Patriot Act to conduct these unconstitutional investigations into the lives of innocent civilians. But have they done so? The ACLU has “revealed that the FBI has amassed more than 1,100 pages of documents on its organization since 2001, as well as documents concerning other non-violent groups including Greenpeace and United for Peace and Justice” (“FBI” par. 1). What does this have to do with finding the alleged terrorists? The answer is: absolutely nothing. It appears this has much more to do with keeping tabs on American civilians than on America’s enemies. This is nothing more than a complete abuse of power which, evidently, has so far gone unchecked.
So the USA Patriot Act appears to be violating our freedom of association and is being used to keep tabs on innocent American civilians. But the Act is also violating our Fourth amendment rights.
Under the USA Patriot Act, our constitutionally protected rights against unreasonable search and seizure are being violated. The new legislation, in essence, expands the jurisdiction of existing “foreign intelligence laws” to include normal American citizens in which Fourth amendment rights do not apply (Van Bergen 13). Once again, due to the ambiguous language of the USA Patriot Act, innocent American citizens can be victimized by the abuses of this seemingly fascist Act. This section of the Patriot Act allows the executive branch to conduct “search and seizure of any third-party maintained records, including medical, educational, and financial” (Van Bergen 118). This provision opens up a nearly limitless number of possible options that the government has to monitor its citizens. They can check library records, video rentals, internet providers, etc. The Big Brother of Orwell comes to mind. And furthermore, the terms of the Patriot Act do not require the government to show any relationship between the “records sought and its investigation” (Hockeimer par. 6). So no provable connection is required for the government to conduct its investigations. And “unlike standard subpoenas, subpoenas granted by the FIS Court do not require that the law enforcement agency demonstrate grounds to believe that subjects were involved in a crime” (“Senate” par. 9). This basically opens up these sort of investigations to every possible American citizen that the executive branch wishes to investigate. So your constitutionally protected civil liberties are only in effect up until the executive branch has its eye on you.
So the Patriot Act is also being abused to conduct unreasonable searches and seizures on American citizens. What is in store for this controversial act?
Although many of the controversial sections of the USA Patriot Act are up for renewal and revision, many are expected to stay intact. According to Richard Sammon in his article “Antiterrorism Law will be Extended” found in Kiplinger Business Forecasts, Congress is set to renew and revise the law towards the end of the year (par. 1). But many of the controversial sections are expected to remain intact because there have been “no widespread reports of the law being abused or any significant public hue and cry about privacy invasions” (Sammon par. 8). Even if the laws were not being abused, which we know they obviously are, they should still be abolished due to the fact of the immense power they put in one branch of the federal government. And just because there “supposedly” have been no abuses does not necessarily indicate that there will be no abuses in the future. However, it is expected that the revised act will be “limited to three years instead of five so Congress can keep a close eye on how it is being applied” (Sammon par. 7). The one good thing that can be seen from this is that it does not appear that the Patriot Act will be a permanent addition to the law books anytime in the near future.
Many interesting things pertaining to the Patriot Act will be coming up in the following months. However, what is going on with the Patriot Act right now?
The recent events pertaining to the USA Patriot Act are troubling. “Although two House committees approved Patriot Act reauthorization bills last week, only cosmetic changes were made” and most of the controversial sections were left intact (“Calls” par. 4). The House is already rushing to push through the renewal of the new Patriot Act when they still have plenty of time to go. This seems to be an echo of four years ago. Although it was an unfortunate tragedy, the bombings in London could be used as a similar form of propaganda by the administration to include expanded powers in the new revision. Hopefully, Congress will avoid the same trap as before. Another troubling event is that the FBI has recently been granted the ability to bypass the FIS court and is now “allowed to write and approve its own orders” (“Senate” par. 3). Once again, too much power is being placed into single entities. This only increases the likelihood that power will be abused.
The USA Patriot Act in its current form is unconstitutional, and should replaced with a more conservative piece of legislation. As it is now, the Patriot Act is overkill. It gives entirely too much power to the executive branch. It also violates the civil liberties of American citizens. A new form of legislation needs to be created which does not violate any of the American civil liberties for both citizens and non-citizens. We need to respect the agreement of the Geneva convention and abandon such radical concepts such as the compounds that are holding all those thousands of innocent civilians. Balance needs to be restored between the three branches of government. Whatever we choose to do, we need to stay within the confines of the Constitution.
Overall, the horrific events of September 11, 2001 have been used to push through a radically fascist piece of legislation, known as the USA Patriot Act, which is under the disguise of fighting terrorism, when in reality it violates some of the most important civil liberties that Americans possess. Its major flaw is that it concentrates entirely too much power in the executive branch of the federal government, and as a result, upsets the balance of power. Though at the time it was viewed as necessary and relatively harmless, the USA Patriot Act is arguably one of the greatest assaults on American civil liberties, particularly in regards to its direct violation of our constitutional rights of due process, association, and our protection against unreasonable search and seizure
Works Cited
“ACLU Calls House Attempt to Renew Patriot Act a ‘Rush Job,’ Urges Congress to Allow Time for Thorough Public Debate.” ACLU.org. 19 July 2005: 6 pars. American Civil Liberties Union. 20 July 2005.
“In ACLU Case, Federal Court Strikes Down Patriot Act Surveillance Power as Unconstitutional.” ACLU.org. 29 Sept. 2004: 13 pars. American Civil Liberties Union. 19 July 2005.
“FBI is Keeping Documents on ACLU and Other Peaceful Groups.” ACLU.org. 18 July 2005: 8 pars. American Civil Liberties Union. 20 July 2005.
Hockeimer, Henry E. “Re-Examining the Controversial USA Patriot Act.” Legal Intelligencer 15 Apr. 2005: 12 pars. InfoTrac OneFile. InfoTrac. Monroe County Community College Lib. Monroe, MI. 19 July 2005.
Kettl, Donald F. System Under Stress: Homeland Security and American Politics. Washington: CQ, 2004.
Mack, Raneta Lawson and Michael J. Kelly. Equal Justice in the Balance: America’s Legal Responses to the Emerging Terrorist Threat. Ann Arbor: U of Michigan P, 2004.
Sammon, Richard. “Antiterrorism Law will be Extended.” Kiplinger Business Forecasts 17 May 2005: 11 pars. InfoTrac OneFile. InfoTrac. Monroe County Community College Lib. Monroe, MI. 19 July 2005.
Write a comment