The Patriot Act and Civil Liberties

A handful of the provisions of the USA Patriot Act are set to expireor sunset on Dec. 31, and Congress is therefore considering which of them to re-authorize. President Bush wants the entire act to be made permanent, contending that it has made the United States safer in the wake of the terrorist attacks of Sept. 11, 2001. Those attacks led to the act’s passage only 45 days later, after virtually no debate. That haste has led to what some civil rights advocates consider a loss to the checks and balances of power guaranteed under the Constitution, with too much of the power now in the hands of the executive branch.

The full and ponderous title of the act is Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism. But a number of the tools made available in its 342 pages have raised concerns that their use has negatively affected our civil liberties. The impact is especially evident in changes in criminal and intelligence laws that allow the federal government greater authority in regard to surveillance and monitoring. Section 213, for instance, generally referred to as the sneak and peek provision, allows police to enter and search a home without informing the occupants beforehand. There is no sunset provision to this section. Critics see it as undermining the heart of the Fourth Amendment, which states that the right of people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated.

Another troubling aspect of the act concerns immigrants, especially those from Arab, Muslim and South Asian countries. Senator Russ Feingold (Democrat of Wisconsin), the only senator who opposed the rapid and debate-free passage of the act, has expressed special concern over the immigrants issue. On Oct. 25, 2002, he pointed out that the government’s new powers may fall most heavily on a minority of our population who already feel particularly acutely the pain of this [kind of] discrimination. And indeed, they have.

David Cole, a professor at the Georgetown Law Center in Washington, D.C., has also expressed concern over aspects of the Patriot Act that adversely affect foreign nationals. He told America, for instance, of a provision that gives the attorney general the power to incarcerate foreign nationals without being obliged to prove them dangerous or a threat to the nation’s security or a flight risk. Another provision allows them to be denied entry to the United States because of statements they made in the past. Thus, the government used the act’s immigration provisions to bar entry to a Nicaraguan, Maria Tellez, who had been invited to teach at Harvard. In an article in The Nation, Professor Cole wrote that she was denied because of her association in the 1980’s with the Sandinistas.

Also troubling is the library provision, which allows the government to monitor in secret not just libraries, but all entities that keep records, including video store and bookstore user records. Attorney General Alberto Gonzales claimed this past April that the library provision has never been implemented. But in a recent study, the American Library Association found that—although not directly associated with the Patriot Act—federal investigators were seeking information about library users to a far greater extent than the Justice Department has acknowledged. The House voted on June 15 to block the library provision. It remains to be seen what steps the Senate will take. It is possible that revisions will be made not only to this provision, but also to sneak and peak provisions and those that condone various forms of wiretapping now permitted by the act.

We are not calling for abandoning the act, especially not in the wake of the terrorist attacks in London on July 7. What is needed, as Professor Cole told America, is fixing some of the broader and more sweeping provisions, and restoring some notion of checks and balances in the fight against terrorism. Besides, he added, many of the abuses committed in the name of the war on terror have taken place entirely apart from the sanctions of the Patriot Act itself. The ongoing detention incommunicado of prisoners at the naval base at Guantánamo Bay is one example, and details of alleged mistreatment there continue to emerge. Military doctors there, it was recently reported, have been found to be aiding interrogators in exploiting detainees’ fears and stress levels as a means of gathering intelligence—procedures that clearly violate the most basic concepts of medical ethics. The terrorist attacks should not be taken as justification for trampling upon the human rights of Americans or foreigners. Basic human rights are universal in scope.