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The PATRIOT Act in 2004
An update and an election year outlook
Kevin Feltes
Staff Writer
First, an update and review of the PATRIOT Act. Since its passage in
October 2001, this law has been a constant topic of national debate,
producing high tension about tradeoffs between national security and
the protection of civil liberties. Though several states and scores
of communities across the country have joined civil rights organizations
like the ACLU in criticizing the constitutionality of PATRIOT, no provision
of the act has been held unconstitutional by any court to date, including
challenges to enemy combatant detention, FISA information sharing, and
the President’s authority to freeze assets of purported charities
suspected of funding terrorists.
Is PATRIOT growing or contracting? A bit of both. The only expansion
of PATRIOT Act-like powers to be approved by Congress since October
2001 has been a measure aimed at controlling money laundering, making
it easier for terrorism investigators to get financial records from
a broader range of financial institutions - including casinos and stockbrokers.
This expansion addresses the matter of terrorist financing, which investigators
consider a major problem. Passed as part of the Intelligence Authorization
Act of Fiscal Year 2004, many opponents criticized this expansion of
powers as being covert and crafty politics as it was signed into law
the same day as Saddam was captured in December. On the other hand,
Congress voted to withhold federal funds from “sneak and peek”
searches in July 2003, feeling that this provision of the act went too
far. Many more proposals to expand or limit PATRIOT’s powers are
still before Congress.
Can we trust it yet? The Justice Department has testified
in 115 Congressional hearings related to the act and the war on terrorism,
and much of the implementation of new powers has been monitored by Congressional
oversight. While no major patterns of abuse have arisen because of the
act’s implementation, plenty of anecdotal grievances against abuse
of police power have arisen since it was signed into law. More generally,
members of Congress and citizens are still concerned that the law’s
provisions were reactionary and impinge too heavily on constitutional
rights.
PATRIOT in the Election:
Because it is an election year, Congress is unlikely to renew or make
any major changes to the law until 2005. Nevertheless, the PATRIOT Act
will be a big topic (as it already has been) in the Presidential election
debates and candidates’ platforms. This act could be central to
both parties’ campaigns as it involves both national security,
which President Bush emphasizes in his politics, and protecting civil
liberties, which the Democrats are passionate about in theirs.
Among the Democratic contenders, John Kerry is the act’s most
ardent critic, feeling that Congress should not renew the law in 2005.
Howard Dean is not quite so opposed, but wants to repeal parts of the
act that restrict basic liberties. Of the three, John Edwards is the
most supportive of the law, but thinks that the administration has abused
its power in implementing new tools and that an independent civil liberties
watchdog agency should be created to monitor the FBI.
President Bush himself remains an unyielding advocate for the PATRIOT
Act, but he might shy away from promoting an expansion of its powers
during this election year. Though he made a distinct point about the
renewal of the act in his State of the Union address last month, he
did not repeat in that speech the call for expanded law enforcement
powers he made last September on the second anniversary of 9/11.
Suggestions for Concerned Citizens:
There are several things that responsible and concerned voters should
keep in mind when thinking about the PATRIOT Act in this election year.
First, the presidential election is a very suitable forum for discussion
of the act. Discussion of this issue on the national level, with presidential
candidates taking sides and making promises, is preferable to individual
states and communities rising up against the act in principled stands
for their Constitutional rights. State and local governments inherently
have an imbalanced approach to the issue since they are not responsible
for investigating and stopping terrorism as is the federal government.
While such protests are fundamental to a safe democracy, the actions
by local governments have yet to lead to any significant resolution
of policy disagreement. Hopefully, the elections can provide a forum
for resolution.
Secondly, voters should keep an eye out for candidates that discuss
this law in terms of all three branches of government. The PATRIOT Act
affects many fragile Constitutional liberties in an attempt to combat
an enormous security threat, and may not properly balance these two
factors unless the judiciary is given priority for determining the constitutionality
of laws, the Congress is fully involved in the writing of all important
legislation, and the system of checks and balances is in full working
order so that the Justice Department can be trusted with the tools and
information they need.
Third, voters should avoid thinking about the PATRIOT Act as a single,
indivisible law that is “good” or “bad,” and
start thinking of it as a toolkit. The act is really a combination of
numerous provisions that change the structure and rules of law enforcement
in many different ways, with each provision being contested to varying
degrees by its opponents. You will not see as much in the line of discussion
about each of the tools in this toolkit, since most one-page editorials
(like this one) and 2-minute news debates have neither the time nor
the expertise to do so. We shouldn’t settle for praise or criticism
for the PATRIOT Act as a whole, however, without at least trying to
examine each of the tools and considering its benefit to law enforcers,
possible civil liberty abuses, and governmental checks to protect against
such abuses.
Finally, all citizens need to be aware of the possible abuses of fear-invoking
language on both sides of this issue. Support for increased law enforcement
powers should not be garnered by the PATRIOT Act’s supporters
through generating excessive fear of terrorists in the minds of voters.
Likewise, those concerned with protecting civil liberties should not
torment voters about all of the perturbing things that Big Brother can
now find out about or do to “you.” (Contrary to such rhetoric
and despite vague language, most Americans actually do not qualify as
suspected terrorists.) While being sensitive to those under a greater
threat of being wrongly treated by this legislation and remaining cognizant
of the threat of terrorism, we should all be wary of being swayed by
excessive fear. By thinking about the law in these ways, we can participate
responsibly in this debate so that the PATRIOT Act can be shaped to
protect those aspects of American life that we all hope to preserve.
Staff Writer Kevin Feltes can be reached at
feltes@email.unc.edu
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