Renewing the Patriot Act: Who Will Protect Us From Our Government?
by John W. Whitehead
by John W. Whitehead: Bin
Laden, Gaddafi and Modern Warfare: On the Highway of Death
"It is the responsibility of the patriot to protect his
country from its government."
~ Thomas Paine
Those who founded this country knew quite well that every citizen
must remain vigilant or freedom would be lost. This is the true
nature of a patriot – one who sounds the clarion call when the Constitution
is under attack. If, on the other hand, the people become sheep-like,
it will lead to a government of wolves. This is what we are faced
with today as Congress marches in lockstep with the White House
to renew the USA Patriot Act.
The Patriot Act drove a stake through the heart of the Bill of
Rights, violating at least six of the ten original amendments –
the First, Fourth, Fifth, Sixth, Seventh and Eighth Amendments –
and possibly the Thirteenth and Fourteenth Amendments, as well.
The Patriot Act also redefined terrorism so broadly that many non-terrorist
political activities such as protest marches, demonstrations and
civil disobedience were considered potential terrorist acts, thereby
rendering anyone desiring to engage in protected First Amendment
expressive activities as suspects of the surveillance
The Patriot Act justified broader domestic surveillance, the logic
being that if government agents knew more about each American, they
could distinguish the terrorists from law-abiding citizens – no
doubt an earnest impulse shared by small-town police and federal
agents alike. According to Washington Post reporter
Robert O’Harrow, Jr., this was a fantasy that had "been brewing
in the law enforcement world for a long time." And 9/11 provided
the government with the perfect excuse for conducting far-reaching
surveillance and collecting mountains of information on even the
most law-abiding citizen.
Suddenly, for the first time in American history, federal agents
and police officers were authorized to conduct black bag "sneak-and-peak"
searches of homes and offices and confiscate your personal property
without first notifying you of their intent or their presence. The
law also granted the FBI the right to come to your place of employment,
demand your personal records and question your supervisors and fellow
employees, all without notifying you; allowed the government access
to your medical records, school records and practically every personal
record about you; and allowed the government to secretly demand
to see records of books or magazines you’ve checked out in any public
library and Internet sites you’ve visited (at least 545 libraries
received such demands in the first year following passage of the
In the name of fighting terrorism, government officials were permitted
to monitor religious and political institutions with no suspicion
of criminal wrongdoing; prosecute librarians or keepers of any other
records if they told anyone that the government had subpoenaed information
related to a terror investigation; monitor conversations between
attorneys and clients; search and seize Americans’ papers and effects
without showing probable cause; and jail Americans indefinitely
without a trial, among other things. The federal government also
made liberal use of its new powers, especially through the use (and
abuse) of the nefarious national security letters, which allow the
FBI to demand personal customer records from Internet Service Providers,
financial institutions and credit companies at the mere say-so of
the government agent in charge of a local FBI office and without
prior court approval.
To their credit, some Americans began to protest the fact that
the Patriot Act had given government agents carte blanche to
investigate average Americans for what we used to call the right
to free speech. Take the case of Derek Kjar who found himself under
investigation after he mentioned that he did not intend to harm
President Bush with anything more than a vote for John Kerry in
the November 2004 presidential election. Agents from the Secret
Service paid Kjar a visit, telling him that his neighbors had
alerted them to a potentially threatening bumper sticker on his
car. The sticker, found on a number of websites at the time, featured
a black-and-white likeness of Bush with a crown tilted slightly
on his head. Under the image are the words, "KING GEORGE –
OFF WITH HIS HEAD" – a reference to the infamous King George
of colonial days. Although the message is protected political speech,
Kjar didn’t know that. Kjar said the two agents visited him at his
job at a dry cleaning service, where they asked him if he had any
ties to terrorist groups or enjoyed reading historical accounts
of assassinations. They also asked Kjar about his friends and family
and wanted to know how he paid his monthly rent. The agents finally
left after Kjar gave them the bumper sticker. Kjar said he feared
the agents were going to "take me away."
Kjar is far from the only American to be subjected to a cross-examination
over his personal views about the government. Even so, despite the
fact that more than 400 local, county and state resolutions were
passed in opposition to the Patriot Act, that spirit of resistance
proved to be fleeting. Once again, Americans lapsed into a somnambulant
trance and turned a blind eye as Congress, at the urging of the
Bush Administration, renewed several of the Patriot Act’s more controversial
provisions, which were set to expire, or sunset, on December 31,
2005. The Patriot Reauthorization Act (PAREA) took government intrusion
into the lives of average Americans to a whole new level. For example,
one "administrative authority" provision within PAREA,
which allows the FBI to write and approve its own search orders,
represents a direct assault on the Fourth Amendment’s prohibitions
against unreasonable search and seizure. By approving what critics
termed "carte blanche for a fishing expedition," Congress
empowered the FBI to conduct warrantless searches on people without
having to show any evidence that they may be involved in criminal
activities. This provision also lifted one of the last restrictions
on special warrants for the FBI – namely, that the information be
related to international terrorism or foreign intelligence.
Despite campaign promises to the contrary, Barack Obama has proven
to be little better than George Bush in terms of civil liberties.
For example, on February 27, 2010, just a little over a year after
taking office, Obama quietly signed into law three controversial
provisions of the Patriot Act that were set to expire. The "roving
wiretaps" provision allows the FBI to wiretap phones in multiple
homes without having to provide the target’s name or even phone
number – merely the possibility that a suspect "might"
use the phone is enough to justify the wiretap. The "lone wolf"
provision allows intelligence gathering of people not suspected
of being part of a foreign government or known terrorist organization.
And Section 215 allows court-approved seizure of records and property
in antiterrorism operations.
Then, one year later, in February 2011, Congress approved a 90-day
extension of those very same provisions, which Obama once again
signed into law. Now, rather than expiring quietly, those provisions
are once again up for reauthorization on May 28, thanks to the handiwork
of Rep. Jim Sensenbrenner (R-Wis.), a senior member of the House
Judiciary Committee, with backing from Reps. Lamar Smith (R-Texas)
and Mike Rogers (R-Mich.), the chairmen of the Judiciary and Intelligence
committees, respectively. Unfortunately, not only are Sensenbrenner
and his cohorts pushing to extend the first two controversial provisions
(allowing "roving wiretaps" of phones used by terror suspects
and allowing federal investigators to compel production of business
records) for six more years, they have also proposed making permanent
the "lone wolf" provision, allowing the government to
monitor individuals who they believe are terrorists even though
they might not have ties to a specific group.
With or without the help of the Patriot Act, the American government,
never a staunch advocate of civil liberties, has been writing its
own orders for some time now. Indeed, not long after 9/11, I had
an FBI agent say as much to me, suggesting that my efforts to oppose
the Patriot Act were pointless. And, in fact, as the McCarthy era
and the wiretapping of Martin Luther King Jr. illustrated, the government’s
amassing of power, especially in relation to its ability to spy
on Americans, predates the passage of the Patriot Act in 2001.
Yet what the Patriot Act and its subsequent incarnations did was
legitimize what had previously been covert and frowned upon as a
violation of Americans’ long-cherished privacy rights. Thus, what
began with the passage of the USA Patriot Act in the fall of 2001
has snowballed into a massive assault on our constitutional freedoms,
our system of government and our fundamental philosophies and way
of life, as a report from attorney Emily Berman of the Brennan Center
for Justice makes clear.
Pointing to guidelines implemented by Attorney General Michael
Mukasey in December 2008 that loosened restrictions on the FBI’s
investigative powers, Berman notes that the changes granted "the
FBI license to employ intrusive techniques to investigate Americans
when there is no indication that any wrongdoing has taken place.
This means that FBI agents can collect and retain vast amounts of
information, much of it about the innocent activities of law-abiding
Americans. And it can then retain that information indefinitely
and share it with other government agencies." Berman continues:
In the absence of meaningful limitations on the FBI’s authority,
agents or informants may attend religious services or political
gatherings to ascertain what is being preached and who is attending.
They may focus their attention on particular religious or ethnic
communities. They may gather and store in their databases information
about where individuals pray, what they read, and who they associate
with. All with no reason to suspect criminal activity or a threat
to national security. And then they may keep that information
in their databases, regardless of whether it indicated any wrongdoing.
We also know that without sufficient limits and oversight, well-meaning
efforts to keep the homeland safe – efforts which rely heavily
on the collection and analysis of significant amounts of information
about Americans – can adversely impact civil liberties. Indeed,
history teaches that insufficiently checked domestic investigative
powers frequently have been abused and that the burdens of this
abuse most often fall upon disfavored communities and those with
unpopular political views. Investigations triggered by race, ethnicity,
religious belief, or political ideology may seem calibrated to
address the threat we face, but instead they routinely target
innocent people and groups. Beyond the harm done to individuals,
such investigations invade privacy, chill religious belief, radicalize
communities and, ultimately, build resistance to cooperation with
To those who have been paying attention, this should come as no
real surprise. After all, the history of governments is that they
inevitably overreach. Thus, enabled by a weak-kneed Congress, the
president and other agencies of the federal government have repeatedly
laid claim to a host of powers, among them the ability to use the
military as a police force, spy on Americans and detain individuals
without granting them access to an attorney or the courts. And as
the government’s powers have grown, unchecked, the sheep-like American
people have gradually become used to these relentless intrusions
into their lives.
In fact, since 9/11, we’ve been spied on by surveillance cameras,
eavesdropped on by government agents, had our belongings searched,
our phones tapped, our mail opened, our email monitored, our opinions
questioned, our purchases scrutinized (under the USA Patriot Act,
banks are required to analyze your transactions for any patterns
that raise suspicion and to see if you are connected to any objectionable
people), and our activities watched. We’ve also been subjected to
invasive patdowns and whole-body scans of our persons and seizures
of our electronic devices in the nation’s airports (there were 6,600
such seizures in airports alone between October 2008 and July 2010).
We can’t even purchase certain cold medicines at the pharmacy anymore
without it being reported to the government and our names being
placed on a watch list. And it’s only going to get worse.
Most Americans have been lulled into thinking that the pressing
issues are voting in the next election or repealing health care.
This is largely due to the media hoopla over the Tea Party, the
2012 presidential contenders, the energy crisis, and the assassination
of Osama bin Laden, and the continuous noise from television news’
talking heads. But the real issue is simply this – the freedoms
in the Bill of Rights are being eviscerated, and if they are not
restored and soon, freedom as we have known it in America will be
lost. Thus, whether it’s a short-term or long-term scenario, Congress
should not renew the USA Patriot Act, nor should President Obama
sign it into law. If he does so, he might just be hammering the
final nail in our coffin.
Unfortunately, even many of those civil libertarians who took Bush
to task and vocally criticized his civil liberties abuses have been
virtually silent in face of President Obama’s continuation of Bush
programs that undermine the Bill of Rights. For example, The
Public Record, a nonprofit news organization based in California,
asked prominent civil and human rights leaders "to explain
their relatively passive position on the renewal of the Patriot
Act. Most did not respond. One who did requested that his name not
be used because he is still hoping to energize some of the silent
voices." Here’s what he had to say:
Many of my colleagues have just given up on the Patriot Act,
either expressly or implicitly (in terms of the mindshare, energy,
and resources dedicated to the issue). They don’t seem to understand
or recall just how foundational this supposedly ‘emergency’ law
was in setting the stage for the infringements that came later.
Sheer exhaustion plays a role, but the fact that it’s been nearly
a decade means that generational change is even starting to have
an impact, as have all the other irons in the fire – so many other
traumatizing events have come up to distract and rightfully demand
attention (torture, even broader surveillance, illegal war, assassinations),
and a corrosive new so-called realism (cynicism, actually) about
the politics of terrorism and the complicity of our fear-driven
media and political class, combined of course with a reluctance
to undermine our first black president and whatever incremental
progressive achievements he can make.
So the situation’s pretty bleak out there, and will only turn
around, in my view, if there is much greater bottom-up, local,
and peer-to-peer, community-to-community activism.
Patriots, wake up! It’s time to protect our country and
our rights against a government of wolves that grows more power-hungry
with every passing day.
attorney and author John W. Whitehead [send
him mail] is founder and president of The
Rutherford Institute. He is the author of The
Change Manifesto (Sourcebooks).
© 2011 The Rutherford Institute
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