The USA PATRIOT Act
The objective of civil liberties is to create a “private sphere” in which individuals are autonomous and free from government interference. There is also a presumption that people have the right to be left alone, to have privacy.
Few would argue, however, that the right of privacy is absolute. No right is absolute, and we regularly compromise our privacy in return for something we value even more. Every new communications technology reduces our privacy. Note how casually we compromise our private lives every time we use our credit cards, run a red light, or post messages on Facebook or Twitter. Even our Social Security and bank account numbers are up for grabs.
The most ardent civil libertarian would find it difficult to disagree with former Attorney General John Ashcroft when he said that “liberty is meaningless without security,” in his defense of the USA PATRIOT Act. War is the most fundamental threat to liberty. President Abraham Lincoln abruptly and unilaterally suspended the power of our judiciary to issue writs of habeas corpus (requiring a show of cause why an individual is in custody). President George Washington, as well as Lincoln and Franklin Roosevelt, set up military tribunals to try, without right of counsel, persons believed to be collaborators with, or merely sympathizers of, the enemy. Most dramatically, in 1942 Roosevelt ordered over 120,000 Japanese Americans (most of them U.S. citizens) to internment camps for the duration of World War II without consulting Congress and without accusing the internees of any sort of crime. The Supreme Court upheld Roosevelt’s actions in Korematsu v. United States (1944). The following is a brief excerpt of the Court’s opinion in this case, written by Justice Hugo Black:
We uphold the exclusion order as of the time it was made and when the petitioner violated it. . . . In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens. . . . But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities, as well as its privileges, and, in time of war, the burden is always heavier. Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when, under conditions of modern warfare, our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.
Six weeks after the terrorist attacks on September 11, 2001, President George W. Bush submitted to Congress the USA PATRIOT Act—“Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act.” The 342-page act gave the federal government power over many different types of beliefs and associations as well as over activities that could be interpreted as sympathetic to terrorism from whatever source.
Although Americans across the ideological spectrum are still willing to support the USA PATRIOT Act as a hedge against terrorism, there is also an unmistakable growth of opposition to many of its provisions, especially those that give the attorney general immense discretionary power to detain and imprison “on suspicion” and to use information technology to engage in “fishing expeditions” within the United States, as though America were a foreign country. In 2001 many politicians voted for the act as an emergency measure and accompanied their support with the assertion that the act “can be fixed” by Justice Department interpretations, by judicial review, and even by Congress itself.
Many of the provisions in the USA PATRIOT Act came under a “sunset clause” that provided for their termination in 2005. In 2006, Congress voted to extend these provisions but also added several new provisions designed to protect civil liberties.
Both American liberals and American conservatives fear an excessively strong state. If we give up the “eternal vigilance” Jefferson counseled as the price of liberty, we will be giving the terrorists their victory without their having to fire another shot or explode another suicide bomb.