The Patriot Act – An Abrogation of Civil Rights, Research Paper Example

Abstract

The civil rights laws in the United States changed dramatically after the terrorist attacks of September 11, 2001.  The Patriot Act was passed quickly after the attacks of September 11 and has made various intrusions into personal privacy legal.  National fears during the waning months of 2001 allowed this abrogation of liberty to pass the Congress and be signed into law by then President Bush.  These actions have historically been prohibited by the letter and intent of the Bill of Rights.  This paper addresses the effects of the Patriot Act on Americans’ civil rights.  It addresses the changing face of terrorism and the need for increased readiness without purging our civil liberties in the process.

Introduction

While the efficacy of the Patriot Act may be debated, there is substantial evidence to show that civil liberties were substantially curtailed by the swift passage of the Patriot Act after the terrorist attacks of September 11, 2001.  There may have been ulterior motives behind many of the security provisions that became law after those horrific events.  The Patriot Act was passed merely six weeks after these attacks and many civil libertarians believe the government acted in haste to initiate these policies and begin an era of electronic wiretapping and eavesdropping on American citizens.

The importance of this information is as vital as the role of uncontested and private communications among members of a free society.  Privacy in personal communications is an essential national freedom and should be defended as vigorously as the right of free speech.  The material in this study will help us recognize the danger signs of government interference in personal communications.

In early American history, the revolutionaries rallied to the ideology that their personal freedoms and the fruits of their labors were being taken by the British.  They asserted a natural and moral right to these civil liberties and resented the British intercepting their cargo ships and taxing the colonists without giving them representation in Parliament.  Jefferson argued in the opening paragraphs of the Declaration of Independence that people had the right to overthrow their government when it went against their natural rights.  Jefferson itemized a list of long-term grievances against the king and, by advocating John Locke’s theory of natural rights, persuaded the governors of the colonies to accept war with Britain to preserve our freedom. (Green & Pole, 2000)

Government’s role was well defined by the Continental philosophers who designed the American system of government.  All citizens should enjoy basic rights to make a living and enjoy him or herself, as long as they don’t infringe upon the rights of others in the process.  There are areas of gray that require consideration in all matters of freedom.  Does one person’s right to smoke tobacco include the right to stink up another’s environment?  Does a corporation’s right to make money trump everyone’s right to clean water?  Personal freedoms are often matters of common sense and should be defended by the public power structure.  Business freedoms need to be regulated by the same public power structure so they can’t poison the environment, sell dangerous commodities or capitalize on disadvantaged consumers.

This paper will address the abrogation of civil liberties in the wake of the 2001 terrorist attacks in the United States.  It is important to study these issues because our nation must never again compromise on our constitutionally guaranteed freedoms and civil rights.  It is necessary to determine how we allowed ourselves to trade off our civil liberties for a perception of safety from foreign attack.

Public policy should be applied to problems requiring collective enterprise, massive issues like global warming over which individuals have minimum impact.  An individual may choose not to litter but there is little he or she can do to stop Dow Chemical from dumping arsenic into a river or Conn Edison from spewing coal smoke into the atmosphere.  The personal liberties described by the early Continental liberals and the initial statesmen of the new American nation are essential to securing a democratic government with an involved citizenry.  If the people cannot speak out against injustice or against repression, they cannot change it.  If people are not allowed to profit from their creative efforts, genius may be stifled; important ideas could be buried in censorship.

Yet the allowance of personal liberties under a constitutional government may contribute to a personal isolationism that weakens communities and the state, and fosters societal apathy. People may be compelled to contribute to the social order but liberals believe most would contribute more if left to their own volition; patriotism without coercion.  I believe that Americans will choose to preserve these essential freedoms in the face of additional attacks even if it means making us a little less safe.

Literature Review

There have been many studies regarding the events of September 11, 2001 and the subsequent security measures that were adopted by the federal government in the wake of these attacks.  The results of numerous studies and the existence of prescient literature from years ago contribute to our understanding of political tolerance for restricted liberties and an abandonment of idealism and justice in exchange for a perception of enhanced national security.

To illustrate what the majority of Americans feel about the curtailing of civil liberties, Darren W. Davis and Brian D. Silver published “Civil Liberties vs. Security: Public Opinion in the Context of the Terrorist Attacks on America” in 2004.  The terrorist attacks of 2001 showed people the limits of their freedoms as the government began to trade off these essential liberties for a perception of safety from further attacks.  This article summarizes the issues regarding reduction of personal freedoms in exchange for social safety and shows how Americans have come to regard them as a necessary component of public safety.  This period in our history has served to define how far we will eventually go in preserving the freedoms most Americans have long since taken for granted.

A study reported by Skitka, et al in 2004 attempted to test the political tolerance that resulted from a series of hypotheses of social psychological theories.  The study sought to explain the tolerance that allowed the executive branch of our government to pass the Patriot Act along with other acts of oppression in the name of safety.  The work shows how fear allowed most Americans to allow their government to restrict freedoms and how these feelings changed four months later.  The study discusses how personal threat, moral outrage, outgroup derogation and ingroup enhancement contributed to decreased political tolerance.  It shows how politicians took advantage of the national mood following the attacks to pass powerful proposals that granted them authority in areas most leaders inherently seek. (Skitka, et al. 2004)

Larry Abramson and Maria Godoy presented information in an essay delivered on National Public Radio (2006) that discusses what the Patriot Act has done to individual liberties. Under the Patriot Act, the government is authorized to conduct electronic searches of virtually all information available about an individual without having to show probable cause and without informing the individual that he or she is being spied upon.  The government no longer has to give notice, obtain a warrant, subpoena, or show probable cause that any crime has been committed.  Persons handing over personal information to the government (such as librarians, fellow employees, associates or neighbors) are prohibited, under the possibility of federal criminal prosecution, from telling anyone what they did. The provisions of the Patriot Act sound more like they belong in the old KGB in the Soviet Union than they do in the “land of the free.” Supporters of the act claim that the freedoms we enjoy as Americans are holes in our security that allow those who would attack us to live and operate so easily among us.

Adam Liptak published an article in The New York Times a decade after the terrorist attacks of September 11, 2011 discussing how law enforcement has adopted more aggressive methods for seeking out potential terrorists.  Liptak implies that the abrogation of our civil rights did not degrade to any appreciable extent in the legal aftermath of 9-11, but were merely adjusted to reflect the new reality and legislators did little more than “…tinkering at the margins.” (Liptak, 2011, par. 4)

Liptak’s tone seems almost apologetic for the draconian efforts that law enforcement has imposed on the public since the terrorist attacks.  He minimizes their impositions on the privacy of Americans and trivializes the abrogation of civil rights by comparing them to other countries like Israel or Great Britain.  He seems to think it is perfectly acceptable to trade off civil rights to privacy in exchange for some overrated perception of safety.

There have been many studies regarding the events of that horrible day in September and the subsequent security measures that were adopted by the federal government in the wake of these attacks.  The results of numerous studies and the existence of prescient literature from years ago contribute to our understanding of political tolerance for restricted liberties and an abandonment of idealism and justice in exchange for a perception of enhanced national security.  A look at some procedures put into place by other developed democratic nations, “… where preventive detention and limitations on subversive speech became commonplace.” (Liptak, 2011 par. 4)

Many are not in agreement with Mr. Liptak’s assessment of how things have turned out after 9-11.  Some people think we have given away far too many personal privacy liberties that are unjustified by any acts of terrorism.  The federal government has suspended the basic legal right of habeas corpus for those persons it deems “enemy combatants, “a new class of people somehow sub-human enough to not warrant civil rights.  A major problem with this assumption is deciding upon who will be deemed “enemy combatants.”

An earlier version of Liptak’s observations which illustrates what the majority of Americans feel about the curtailing of civil liberties, Darren W. Davis and Brian D. Silver published “Civil Liberties vs. Security: Public Opinion in the Context of the Terrorist Attacks on America” in 2004.  The terrorist attacks of 2001 showed people the limits of their freedoms as the government began to trade off these essential liberties for a perception of safety from further attacks.  This article summarizes the issues regarding reduction of personal freedoms in exchange for social safety and shows how Americans have come to regard them as a necessary component of public safety.  This period in our history has served to define how far we will eventually go in preserving the freedoms most Americans have long since taken for granted.

In “A Look at Terrorist Behavior: How They prepare, Where They Strike,” a paper published in National Institute of Justice Journal, No. 260. July 2008, Dr. Brent Smith addresses how the police respond to acts of terrorism and how they often confuse terrorism with hate crimes, which is a legal definition of a type of crime, not a manifestation of terrorism.  Police officers, even though they are the first responders to domestic acts of terrorism, do not spend a lot of time thinking about terrorists.  The investigative techniques used in disastrous, intimidation-style terrorist bombings are the same employed to investigate a stink bomb in the local bus station.  Most law enforcement agencies are busy enough dealing with local criminal issues and when they do deal with issues of terrorism, they call it something else.  Hundreds of terrorist incidents have occurred in the United States since September 11, 2001. (Smith, 2008)

Many local law enforcement authorities that have not had to deal with international terrorism share the public’s understanding of terrorism, which is an image of a group working toward a specific political agenda and motivated by radical religious ideology or ethnic and nationalist liberation causes.  This is a valid image but it is neither universal nor an all-inclusive picture of today’s terrorists, who belong to increasingly relentless and destructive groups.

Local law enforcement authorities may come into contact with the smallest cells that serve as building blocks for the overall terrorist organization.  Decentralized control structures help the organization maintain operational security.  A loss or compromise of one cell will not compromise the identity, location or plans of other cells.  A cellular organizational structure makes it hard for adversaries to infiltrate the parent organization.  Terrorists of one cell are often unaware of the existence of similar cells and cannot divulge sensitive information about the others when interrogated or tortured.

The perceived risk will determine how prepared law enforcement agencies become toward terrorist attacks.  New York City or Washington D.C. will always have a higher priority for defenses than Cleveland or Kansas City.  Future programmatic and financial support for terrorism will have to be designed to account for these differences in risk levels so we don’t waste money protecting Casper, Wyoming at the expense of leaving vulnerabilities in places like Norfolk, Virginia.

A substantial number of civil liberties have been associated with the communication process.  Personal wiretapping of phone lines, e-mail monitoring and other forms of electronic surveillance involve government snooping using information technology.  Bovee, C.L., and Thill, J.V., published “Business Communication Today” to analyze how the communication process happens.  This material is valuable for understanding how people communicate through technology and addresses the unique challenges information technology presents to national security issues.  Information Technology will be one of the key factors driving progress in the 21st century – it will change the way we live, learn, work, and play.  Advances in computing and communications technology will create a new infrastructure for business, scientific research, and social interaction.  This expanding infrastructure will provide the industry with new tools for communicating throughout the world and for acquiring knowledge and insight from information.  Information technology will help us understand how we affect the natural environment and how best to protect it.  It will provide a vehicle for economic growth through innovation and new product distribution.  Information technology will make the workplace more rewarding, improve the quality of health care, and make government more responsive and accessible to the needs of our citizens.  It also opens up new possibilities for foreign espionage and domestic spying capabilities.

Persson, Roland and Tabellini, published an interesting article in 1997 about the functions of government and how checks and balances can keep one branch of government from becoming too powerful and abrogating civil rights in the name of national security, as the Bush administration did after the terrorist attacks in 2001.  The article illustrates the differences between shared power and checks and balances. Under the constitutional system of government, several branches of government share power while the powers of one branch can be challenged by another branch.  This challenge refers to the checks and balances within the system. The American Constitution has established three branches of government that will conduct checks and balance over each other’s share of power.  The legislative branch writes the laws.  The executive branch executes those laws and the judicial branch interprets those laws.  Each government department has an effect on what the others do.

As the executive branch – the President – appoints judges and cabinet members, these appointments are subject to approval by the legislative branch – the Senate.  Congress may pass laws but are subject to presidential vetoes.  The Supreme Court may declare a law to be unconstitutional but the Congress can amend the Constitution through the state ratification process.  These checks and balances are inefficient by design and are designed to prevent any single branch from obtaining enough power to dominate the government.  (Persson, et al. 1997)

Shared powers, or concurrent powers, are those employed simultaneously by different branches or levels of government.  Both federal and state governments have the power to collect taxes, establish courts, make and enforce laws, build roads, borrow and spend money for the general welfare and to even confiscate private property for public concerns after providing fair compensation. These shared powers do not necessarily offer any checks and balances toward each other’s legislative efforts.

Checks and balances function by promoting a conflict of interest between two governmental agencies, such as the executive and the legislature, yet requiring both entities to agree on what will become public policy.  In this manner, the two entities theoretically discipline each other to the voters’ advantage.  Under appropriate checks and balances, separation of powers also helps the public obtain information.

Schmitt and Johnston (2008) tell us that the federal government has sent well over $23 billion to the states to fight terrorism since attacks of September 11, 2001, but the money often comes with strings attached.  States have grown to resent the federal governments’ financial assistance being tied to terrorism and restricted to certain uses.  In Massachusetts, for example, the state had to come up with a plan to protect its citizens from improvised explosive devices (I.E.D.s) to qualify for its full allotment of federal funding.  This indicates that local governments’ concerns are being ignored and funding is being tied to vague and unlikely terrorism threats.  State and local governments have been complaining about federal funding having too much emphasis on preparing for trumped-up terrorist threats when they could use the money for more urgent priorities.

Theoretical Framework

There are more specific terms that further define terrorism that incorporate cultural and political forces that motivate terrorists to commit heinous crimes.  According to Newman (2006), terrorism generally seeks to use acts of violence against innocents to create a sense of fear among a specific population to advance a political, social or cultural agenda.   This paper will suggest that a broader definition of terrorism include it as a primary cause of dynamic changes within political, economic, social and cultural forces causing conflict between two or more groups of people.

The federal government took advantage of fear and a desire for revenge to implement restrictions on personal liberties after the September 11, 2009 attacks.  By evaluating existing studies and published literature, this paper will show that once the threat of another terrorist attack waned, the public’s tolerance for repressive security measures was substantially diminished.  Proper identification and codification of the political events that followed the attacks will help prevent similar suspensions of civil rights for a perception of safety.

Intelligence experts feared the use of force multipliers by subversive groups within the country that sought to use our civil freedoms against us.  Force multipliers increase striking power without increasing the strength of the attacker.  Terrorists use force multipliers in technology, media coverage, interpretation of terrorist events and religious fanaticism.  When terrorists attack they wish to send a message of chaos and mass destruction to a larger audience via the media.  Victims are not the primary target of these attacks but are used to send a message.  This is one way the media works as a force multiplier for terrorist activities.  The media was highly controlled during American operations into Iraq and Afghanistan, and the lack of media scrutiny contributed to unmitigated murder and torture performed in the name of freedom.

Much of the surveillance that was conducted in the name of national security may have been done for political or personal reasons once the authority for wiretapping and eavesdropping on personal conversations was given.  A review of the published studies will help shed some light on the actions and motivations of those responsible for national security after the worst terrorist attacks in our country’s history.

Police departments often confuse terrorism with hate crimes, which is a legal definition of a type of crime, not a manifestation of terrorism.  Police officers, even though they are the first responders to domestic acts of terrorism, do not spend a lot of time thinking about terrorists.  The investigative techniques used in disastrous, intimidation-style terrorist bombings are the same employed to investigate a stink bomb in the local bus station.  Most law enforcement agencies are busy enough dealing with local criminal issues and when they do deal with issues of terrorism, they call it something else.  Hundreds of terrorist incidents have occurred in the United States since September 11, 2001. (Smith, 2008)

Opinion

The Patriot Act, as initially passed after a mere 45 days after the September 11 attacks, allows the government to access individual “…medical records, tax records, information about the books you buy or borrow without probable cause, and the power to break into your home and conduct secret searches without telling you for weeks, months, or indefinitely.”  (ACLU, 2003)

As Michael Moore so pointedly demonstrated in his movie Fahrenheit 911, this law was not read by most of Congress and passed amidst a near-panicky furor of nationalism and patriotic fervor; hence the law’s contrived name: The Patriot Act.  The Patriot Act is anything but patriotic if one seeks to define patriotism as a desire to defend the freedoms the law is supposed to protect.  In reality, it has the opposite effect.

We should all applaud the romantic philosophers who championed civil rights and outlined basic human freedoms essential to national liberty, yet I also believe that capitalism cannot go unchecked and cannot survive without some blend of socialism.  Governments need to curb business’ freedoms when they pollute or exploit, when they cheat or deceive, when they sell unsafe products or harm others through malice or neglect.  The Patriot Act goes beyond this type of regulatory practice and allows the federal government to sidestep the history of litigation that has protected the rights of the accused and preserved the privacy of all others.

In 2006, the Patriot Act was reinstated with minor modifications.  There are renewed concerns about the advanced sharing provisions of the law and how they could lead to the development of massive databases about citizens who are not the targets of criminal investigations.  Roving wiretaps and sneak-and-peak warrants allow investigators to search homes of suspected criminals without providing notice that might jeopardize the investigation.  This provision allows the use of these warrants for minor infractions, not only terrorism cases.

Of course the Patriot Act abridges our essential freedoms.  It violates the Bill of Rights’ protection against unreasonable searches, violates the presumption of innocence and allows other numerous abridgments of personal privacy.  Under Section 215 of the Patriot Act, the FBI may order anyone to turn over “any tangible things,” so long as the FBI claims that the order is “for an authorized investigation . . . to protect against international terrorism or clandestine intelligence activities.” Section 215 also greatly expands the FBI’s power to spy on ordinary people living in the United States, including citizens and permanent residents. (ACLU, 2003)

The right to privacy must be tempered by some restrictions.  The person making the choices should be of legal age and in complete control of his or her faculties.  Somebody mentally ill cannot be held responsible for actions resulting from their free choice.  The right to privacy must be maintained where possible.  People who enjoy being hit with whips for sexual stimulation, for example, should not be subjected to the same moral standard as someone who beats their family members with a similar device out of cruelty or a misguided sense of discipline.

Government’s role in protecting privacy was well defined by the Continental philosophers who designed the American government.  Everyone should enjoy basic rights to make a living and enjoy him or herself, as long as they don’t infringe upon the rights of others in the process.  There are areas of gray that require consideration in all matters of freedom.  Does one person’s right to smoke tobacco include the right to stink up another’s environment?  Does a corporation’s right to make money trump everyone’s right to clean water?  Personal freedoms are often matters of common sense and should be defended by the public power structure.  Business freedoms need to be regulated by the same public power structure so they can’t poison the environment, sell dangerous commodities or capitalize on disadvantaged consumers.

America has always been a land of diverse peoples who immigrated here from all over the world.  Its rich history of social justice runs alongside some of the most repressive and brutal social policies in history that were inflicted during the era of slavery, the internment of Japanese Americans during World War II and the conquest of the Native American people.  Americans have enjoyed freedoms as expressly guaranteed in the Bill of Rights within the American Constitution.  Our freedoms are largely protected by law, although this isn’t always the case for all peoples.

As Jean Wakatsuki Houston notes in her essay “A Tapestry of Hope,” (1994) America is a land where her family was interned during World War II because they were of Japanese descent and lost everything they had worked for, even though they had been in the country for over thirty years.  Nonetheless, her family managed to find success again by farming strawberries in California.  We are indeed a nation of survivors who will fight to protect the freedoms most of us have grown used to.  Sometimes, that political fervor boils over into violence, which should not be surprising since our country was born out of violence.

Houston also advises us that the world is watching and that America is a standard for which human rights laws and policies should be patterned after.  We are seen as a role model for emerging democracies such as are developing in the Middle East today.  It is hard to fulfill that role as a beacon of civil rights when we pass oppressive and intrusive legislation like the Patriot Act in response to fear.  At the very least, its most intrusive provisions involving unlimited wire-tapping and e-mail monitoring should be repealed.

As terrorist organizations become more centrally organized with foreign state sponsorship, their resources and ambitions grow accordingly.  Their goals have become loftier and their dedication to achieving those goals is reinforced by jihadist fervor.  The domestic need for protection is greater than ever.  While the airlines have made remarkable progress in safety measures, other public transportation has been largely ignored.  The need to secure the nation’s nuclear plants, chemical processing facilities, ports, railroads, sporting and other large-scale social events and intra-state shipping lines has never been greater.  There are drastic needs for increased funding to better prepare first responders to handle a variety of possible contamination scenarios. (Schmitt & Johnston, 2008)

Security can be accomplished without intrusive spying on our citizenry or ethnic profiling.  Standardized safety precautions that have developed since September 11, 2001 will be sufficient to deter terrorist groups from striking on American soil.  The Spying provisions of the Patriot Act are not helping to protect the nation’s interests in travel and in cargo security.

Bibliography

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