Those who desire to give up freedom in order to gain security will not have, nor do they deserve, either one. Benjamin Franklin
The Congressional response to Al Qaeda’s terrorist attack on September 11, 2001, was the Patriot Act. On this day, we stepped onto a slippery slope leading toward what we claim to abhor. Once, wiretapping required advance approval from a federal judge; now, it requires only that the President sign a National Security Letter. What is frightening about this is that the president is the nation’s chief law enforcement officer.
The Constitutional separation of federal powers was intended to act as a counterweight to keep any branch of the federal government from becoming so powerful that it could avoid public scrutiny and accountability. US legal tradition was that Congressional and Judicial oversight prevented secret, heavy-handed, and unconstitutional law enforcement from taking away our liberties. This is how things were done in Hitler’s Germany, Pol Pot’s Cambodia, and Fidel Castro’s Cuba.
In the former Soviet Union, a written summons from the KGB or GRU gave Soviets laundry problems. Here at home, a National Security Letter produces similar results. The letters carry with them gag orders that criminalize discussing the matter with anyone. These letters, served on communications service providers like phone companies and ISPs, allow the FBI to secretly demand data about ordinary American citizens' private communications and Internet activity without any meaningful oversight or prior judicial review.
Without such oversight and review, the First Amendment’s guaranty of free speech is countermanded without the public authorizing a Constitutional amendment. The Act’s provision that authorizes federal agents to seize any tangible thing such as emails, browsing histories, or library records effectively eliminates the Fourth Amendment’s prohibition of unreasonable and warrantless seizures of our persons, houses, papers, and effects.
Libertarians worried that the PA’s nearly unlimited surveillance authority would lead to unlawful abuses by federal officials. It did, and it was used to investigate non-terrorists' political dissent. A 2007 report by the Inspector General of the Justice Department found 'widespread and serious abuse' of authority by the F.B.I. under the Patriot Act. Many of those F.B.I. cases involved people with no clear connection to terrorism.
Prior to the Act’s re-authorization, some Senators proposed amending it so that the FBI would have to prove in advance—requiring authorities to establish probable cause—showing that their intended seizure is directly connected to terrorism. However, Obama did not demand these protections on condition of signing it. Conversely, Senator Ron Wyden reports that he has been secretly reinterpreting public laws and statutes to allow him to hide how the Act is currently interpreted.
Wyden wants to repeal the Act’s business-records provision because there is stark difference between what the public thinks the law says and what the American government secretly thinks the law says. Libertarians embrace a healthy mistrust of government that could be assuaged with transparency. We recognize that something is amiss when government hides its activities from the governed.
As long as the Patriot Act remains focused on ordinary Americans rather than suspected terrorists, the terrorists -- if you’ll forgive the truism -- have indeed won.
It would be disrespectful to the thousands who died that sad September day to allow memories of that tragic event to justify refashioning the land of liberty into a corrupt totalitarian state. The victims and their heirs deserve better, and so do we.
Forever remember eleven September.