The PATRIOT Act in the Crosshairs Again
by James Bovard
The most controversial provisions of the USA PATRIOT Act are coming up for renewal this year. There is hope that Americans will finally learn more about how the feds have been prying into their lives with this law for almost a decade. Some members of Congress are fighting tooth and nail to avoid giving the Justice Department an extension of its sweeping PATRIOT Act powers.
The soul of the PATRIOT Act is blind trust in the arbitrary power of federal agents and federal officials. The act treats every American like a suspected terrorist and every federal agent like a proven angel. When the law was originally considered in the weeks after 9/11, the Bush administration’s steamroller persuaded the legislative branch of government to largely cede both its own role and that of the judicial branch in the American system of checks and balances. An ACLU report issued just after George W. Bush signed the law noted that PATRIOT Act provisions “create the illusion of judicial review while transforming judges into mere rubber stamps. Under many of these provisions the judge exercises no review function whatsoever; the court must issue an order granting access to sensitive information upon mere certification by a government official.” The ACLU warned that the PATRIOT Act “misunderstands the role of the judicial branch of government; it treats the courts as an inconvenient obstacle to executive action rather than an essential instrument of accountability.”
Yet, when he signed the PATRIOT Act into law on October 26, 2001, Bush proclaimed, “Today, we take an essential step in defeating terrorism, while protecting the constitutional rights of all Americans…. This bill met with an overwhelming — overwhelming agreement in Congress, because it upholds and respects the civil liberties guaranteed by our Constitution.” His assertion was ludicrous: the vast majority of the PATRIOT Act’s avid supporters never showed any interest in civil liberties. Almost all those members outspoken on civil liberties opposed the bill. Bush’s ritual invocation of freedom was merely an attempt to consecrate the new federal powers.
The Bush administration carried off the biggest bait and switch in U.S. constitutional history. Rather than targeting terrorists, Bush and Congress awarded new powers to federal agents to use against anyone suspected of committing any one of the thousands of federal crimes on the books. The PATRIOT Act is being used to target people accused of money laundering, corruption, and other white-collar criminal violations, as well as those accused of violating various porn or drug laws.
The PATRIOT Act gave the feds the authority to financially strip-search every American. Banks are now required to gather far more information on their clients — their background, their sources of income, their financial behavior, et cetera. All of these new roundups of info caused by the PATRIOT Act should come with a formal warning to citizens: any information the government gathers can and will be used against you.
National Security Letters
In February, when Congress first debated the reauthorization of the PATRIOT Act, one of the hot issues was Section 215. The advocates of renewing the Act said that section dealt with “business information.” That claim was full of hokum even by Washington standards.
Section 215 is similar to the PATRIOT Act provisions that empower the FBI to use National Security Letters (NSLs) to compel private citizens, businesses, nonprofits, and other entities to surrender information upon demand. NSLs empower the FBI to seize records that reveal “where a person makes and spends money, with whom he lives and lived before, how much he gambles, what he buys online, what he pawns and borrows, where he travels, how he invests, what he searches for and reads on the Web, and who telephones or emails him at home and at work,” the Washington Post noted.
The FBI is issuing up to 50,000 NSLs a year — a hundredfold increase in the rate of such secret searches over the pre–9/11 era. Each NSL can lasso the records of thousands of people. Every NSL is backed up by an FBI badge, and every badge is backed up by a gun and by the world’s largest law firm, the Justice Department.
National Security Letters turn the Fourth Amendment on its head by creating a presumption that the government is entitled to personal or confidential information unless the citizen or business can prove to a federal judge that the Letter should not be enforced against him.
The Founding Fathers placed the Fourth Amendment in the Constitution so that the federal government would have to provide specific information suggesting criminal wrongdoing by a specific person prior to the granting of a search warrant. The standard for these National Security Letters is simply that an FBI agent fill out a form certifying that he is seeking information that is relevant to an authorized investigation. That is a “standard’ that almost any authoritarian government in the world could meet. The FBI has a push-button to seize practically any information it pleases.
But some FBI officials were not satisfied with the reach of the NSL vacuum cleaner. Instead, beginning in 2004, they contrived other ways to commandeer Americans’ personal information — simply by promising that they would eventually send National Security Letters for the telephone records or other information they demanded. They often didn’t even bother sending such letters after snaring private information. A 2007 Inspector General report revealed that almost one-fourth of all NSLs — tens of thousands of such letters — may have violated federal law.
If a private citizen hacked into the FBI computer database and snared personal data on hundreds of FBI agents, he would be sentenced to prison for several years. If a private citizen used false threats to gain other citizens’ personal financial information from a bank, he could be sent up the river for years.
However, no crimes were committed when FBI agents violated the law and seized citizens’ personal data.
Why? Because every federal violation of Americans’ privacy is by definition a harmless error.
Let’s keep in mind what happened when the PATRIOT Act’s most controversial provisions were extended in 2006. The Bush administration kept insisting that almost zero abuses had occurred, so there was no reason not to extend the law. It turned out that thousands of abuses had occurred — and top White House and Justice Department officials simply lied to Congress about it.
Back when the PATRIOT Act was first considered, we were told that it was safe to vest all that power in federal agencies because Congress would keep a close eye on how the power was used.
Congress has not brought honor upon itself in its dealings with the Act. On the Senate side, Russ Feingold — the only senator to vote against the Act — tried to keep an eye on how the powers were being used — and that was a major factor in his defeat last November. Sen. Patrick Leahy has worked for some oversight, but has been thwarted by both parties in the Senate.
One of the big mysteries is that it is the Republican congressional members who are pushing hardest for the PATRIOT Act to be extended. You have the GOP stampeding to make sure that federal agencies under Obama continue to have such vast surveillance powers. Why? Are the congressmen simply in the habit of groveling every time some FBI official snaps his fingers?
One reason federal agencies cannot be trusted with PATRIOT Act powers is that congressmen simply don’t give a damn when federal agencies violate Americans’ privacy. As long as federal agents are not flogging mothers on Main Street, Congress is not going to pay attention. Don’t forget: the first reaction that congressmen had right after Waco was to line up to have their photos taken with Janet Reno when she came to testify on Capitol Hill.
Some people might say that that is ancient history. Only five years ago, George W. Bush gave his State of the Union address a few weeks after the New York Times had exposed warrantless wiretapping of thousands of Americans. When he went up to Capitol Hill and bragged about his “terrorist surveillance program,” almost all the GOP members gave him a standing ovation.
And how do we know that the people who were wiretapped were actually terrorists? The proof is in the fact that they were wiretapped.
The only way to reconcile a law like the PATRIOT Act with freedom is to assume that unjustified government intrusions into people’s lives are irrelevant to freedom — and that the government has not violated anyone’s rights until it secretly arrests him, strips him of his constitutional rights, and tosses him into Gitmo — or maybe Bagram.
The PATRIOT Act is symptomatic of a government out of control. A democratic government that respects no limits on its own power is a ticking time bomb, waiting to destroy the rights it was created to protect.
America needs a higher grade of patriotism. It is not patriotic to ignore violations of the Constitution. It is not patriotic to “look the other way” when politicians ravage rights. It is not patriotic to pretend that politicians are entitled to all the power they can grab, at least until they get impeached or indicted. It is not patriotic to give the benefit of the doubt to people trying to shackle you.
Getting rid of the PATRIOT Act is a small step towards making government less dangerous and making Washington less noxious. We might not be able to win this fight this year, but we can sure make it hot for the rascals.
James Bovard is the author of Attention Deficit Democracy  as well as The Bush Betrayal , Lost Rights  and Terrorism and Tyranny: Trampling Freedom, Justice and Peace to Rid the World of Evil (Palgrave-Macmillan, September 2003) and serves as a policy advisor for The Future of Freedom Foundation.