The Patriot Act -- Pro and con
Ahh, the good old days of 2003. When the reaction to 9/11 gave our untrustworthy government a new power tool to defend America from future attacks -- and threaten our freedoms forever.
Saturday, Nov. 8, 2003
Does the USA Patriot Act -- which gives government law enforcement and intelligence agencies sweeping new powers to defend America from foreign and domestic terrorists -- trade away civil liberties for more security? Or is it just what we needed to prevent the next Sept. 11?
Paul Rosenzweig, a Heritage Foundation legal fellow, and Vic Walczak, chief legal counsel for the Pittsburgh chapter of the ACLU, will debate the pros and cons of the Patriot Act at 6 p.m. Tuesday in Room 204 of Duquesne University’s School of Law.
This week I asked each of them the exact same questions:
Q: Let’s say I met you at an airport bar and asked you whether I should be thankful or frightened about this thing called the Patriot Act? What do you say?
Vic Walczak: It’s a mixed bag. There are some good and necessary changes in the law. But on balance, the threats to freedom and civil liberties outweigh the benefits.
Paul Rosenzweig: By and large you should be thankful. Let’s remember that the greatest single victory so far has been that there hasn’t been another attack. It can’t all be laid at the doorstep of the Patriot Act, of course. The efforts to disrupt terrorism overseas have been substantial, and they have probably a far more significant effect.
But the one thing everyone should realize is that the one thing that every review of pre-Sept. 11 that we’ve done said is that we have had insufficient coordination between our intelligence branches and our law enforcement branches. The one great success of the Patriot Act is that it increased that coordination.
Q: What is the worst thing you can say about the Act?
Walczak: There are two major dangers posed by the Patriot Act. The first is that it reduces meaningful court oversight for law enforcement agents’ invasion of people’s privacy rights, such as telephone and computer communications, health and medical records, student records, business and financial transactions, etc.
Second, it shrouds much of the government’s law enforcement activities in secrecy. So that if and when abuses occur, they are difficult or impossible to detect.
Rosenzweig: The worst thing I can say about the act is, to a large degree, it is wildly misunderstood. It has become a symbol for a lot of other things that people are concerned about. They’re concerned about enemy combatants, concerned about immigration, concerned about the terrorism information awareness system — none of those things are in the Patriot Act itself.
The worst thing about the Patriot Act is that the administration has let it become a caricature for everybody’s fears.
Q: Is there any example of something the act does that either steps on or threatens to step on our civil liberties?
Walczak : Lots. I’m trying to pick one.... Normally, before government agents can invade people’s privacy in their homes, in their communications, in their various records, they need to demonstrate to a judge that there is probable cause that the targeted person is involved in some sort of criminal wrongdoing or has evidence of a crime.
The Patriot Act wipes out, for a whole category of investigations, the probable cause requirement and the meaningful judicial oversight.
For instance, the government could come in and search your home and download your computer information and get information from the library about what you’ve been reading and get your medical records - even if they cannot show that you are a criminal suspect - and they wouldn’t have to tell you they had done all of that.
Rosenzweig: Actually in the Patriot Act itself? The one I would pick is the potential misuse in its definition of what constitutes a domestic terrorist threat. It defines domestic terrorism, and it defines it in a way that is intended to capture Timothy McVeigh -- using violence to terrorize people. But it defines it in a way that if misused, is potentially applicable to Operation Rescue or Greenpeace, who sometimes do much-less violence but things that are violent - blocking abortion clinics or boarding ships.
Q: What is most absurd attack on the act that you’ve heard?
Walczak : Absurd defense? (Laughs.) That “It promotes civil liberties.” Isn’t that what the Heritage Foundation is saying? That’s absurd. It may promote security, but it doesn’t promote civil liberties. Another is, “Even though we are getting lots of power, just trust us not to abuse it.”
Rosenzweig: It’s a toss-up between the angry librarians and the so-called sneak-and-peek, so I’ll take sneak-and-peek, just for fun. Sneak-and-peek is really known as “delayed notification.” It allows the government to enter your house, but not tell you that they’ve been there immediately -- of course, only with the permission of a judge.
It has a lot of good uses. That’s how we put a bug in John Gotti’s eating club in Brooklyn.... We’ve been using this for over 30 years to fight Mafia dons and drug lords and things like that. It’s absurd to say that we shouldn’t use it to fight terrorists.
Q: Are the opponents of the act, and the backers of the act, both overstating their cases -- in other words, there’s a lot stuff that will happen in theory, but has anything actually really happened in the real world?
Walczak : It’s difficult to know what the government is doing under the act, because there is so much secrecy built in to prevent people from finding out when and how they are using these provisions.
Rosenzweig: That is a good question. I think to a larger degree, there is a lot more heat than light here. There have been two or three reported instances in which the Patriot Act has expressly been invoked for capturing terrorists we might not have captured before, but not many more than that.
Q: Why should people who believe in limited government, and fear the power of government, trust that this massive, sweeping set of laws will not diminish our freedoms in the long run?
Walczak: They should not. ... The primary danger from the Patriot Act is that it weakens the ability of the courts to monitor what the executive branch is doing - the executive branch is law enforcement. With that reduced oversight, you dramatically expand the chances for abusive and unconstitutional behavior by government officials.
Rosenzweig : They shouldn’t trust. They should do what President Reagan said: “Trust but verify.” The absolute bedrock for any enhanced power is oversight. But we also should recognize that this situation is different. That where we would be careful about giving government powers to fight common law crimes — drugs, murders, rapes, robberies, whatever -- here the consequences of failure are potentially much more catastrophic. So we need to grant the powers because we need to avoid the next horrific attack. But trust only with verification.