Civil Rights versus Patriotism: Do We Have to Make a Choice



We’re likely to experience more restrictions on our personal freedom than has ever been the case in our country . . . . It will cause us to re-examine some of our laws pertaining to criminal surveillance, wiretapping, immigration and so on.

--Justice Sandra Day O’Connor, September 29, 20011

Civil Rights versus The Patriot Act: Do We Have to Make a Choice?

It has been the topic of talk shows, classroom discussions, office lunches, family dinners, as well as national political and social debates for almost five years: In this era of terrorism, is it necessarily the case that the safety and security of our nation requires that individuals “give up” or agree to limit their civil rights, so that the United States government can protect its citizens from acts of terrorism, both from outside and within this nation, under the auspices of the USA Patriot Act?

Before any meaningful discussion can take place concerning this topic, it is necessary to define the key terms as well as the context of this important question. Since September 11, 2001, the context of terrorism has been painfully aware to the people of the United States, as well as people from nations throughout the world—not only the imminent threat of terrorism but the unpredictable nature of terrorist attacks. Even though the events of 9/11 were not the only terrorist attacks against the United States in recent memory2, 3, they were the most devastating loss of lives and property on domestic soil. Noted author and Professor James Gibson made the point quite clear,

“During ordinary times, civil liberties issues are likely to be remote from everyday experience; but in certain contexts civil liberties issues have immediate implications for people’s sense of freedom and well-being.”4

But the days, weeks, months and years after September 11, 2001, were no “ordinary” times. One of the most liberal-minded members of the Supreme Court, Justice Sandra Day O’Connor, warned Americans to be ready to compromise or permit restrictions on their civil rights during these times. Other observers have echoed this view, not so much as a justification, but as a government’s reasonable fulfillment of their Hobbesian “social contract,” viz., to protect the safety and security of its people and institutions. Yet, even within this context, the critical issue remains: how do we balance the freedoms and civil liberties we expect as United States citizens with our governments’ current needs for increased protection and security?

The Federal government responded immediately to the threat of terrorism with the USA Patriot Act. This Act defined the terms and conditions of civil liberties, the role of the government to provide safety and security, and guidelines for the delicate balancing act between individual rights versus the safety and security of our nation. The Senate voted an overwhelming approval, 98-1; the House echoed a similar approval, 357-66; and the USA Patriot Act was signed into law by President George W. Bush on October 26, 2001.5

The USA Patriot Act was initially presented as an extension of the authority of an existing “Foreign Intelligence Surveillance Act (FISA), which was passed in 1978 and in many ways, outdated and unable to protect the nation from foreign influences in the current context of terrorism. Clearly, it is not within the scope of this paper to review the entire USA Patriot Act. Therefore, we will limit our focus to four basic issues that have become central to finding the best balance between protecting our nation and maintaining our civil rights.

1) According to the current Secretary of Homeland Security, Michael Chertoff, “there was a general consensus that we needed to update the [FISA Act] in a number of areas to address the very specific things we now face when we deal with the war on terrorism, including: “technological neutrality,” or creating a more level playing field when it comes to surveillance, moving from the wire-tapping of the FISA era to today’s roving, cellular and satellite media, in voice, text and Internet communications.6

2) In the same discussion, Chertoff outlined a second area of the USA Patriot Act that would help protect the safety and security of our nation: “information sharing,” where various branches and agencies of government can share information in an effort to prevent terrorist acts, even if it involves revealing what has been considered privileged information by certain agencies or facts involved in ongoing investigations.7

3) In addition to these upgrades in intelligence gathering, Title II of the USA Patriot Act grants Federal and/or local agencies a wider range of authority for conducting searches and seizures of suspected terrorists, their personal belongings, the property in their home and/or office, their private and financial records, even if it means a “delay of required notices of the execution of a warrant if immediate notice may have an adverse result and under other specified circumstances.”8

4) The Patriot Act also defines and authorizes the conditions for the detention of suspected terrorists, without regard to the strict application of a writ of habeas corpus, allowing for the detention or removal of non-citizens with little or no judicial review, that could include proceedings by military tribunals without the standard protections of due process provided by civil courts.9

These are the four areas of the USA Patriot Act that most directly impact civil rights. Clearly, the technology of surveillance had changed since 1978, and the government acted swiftly to “level the playing field.” As Assistant Attorney General in United States Department of Justice, Viet D. Dinh explains, “Unlike enemies that we have faced in the past wars, this one operates cravenly, in disguise.” 10 Dinh goes on to explain that one of the primary goals in successfully dealing with terrorism is to, “neutralize the terrorists before they strike.”11

In addressing Chertoff’s first point, “technological neutrality,” the Department of Justice, working with a number of law enforcement and information-gathering agencies, began utilizing state-of-the-art surveillance techniques that had hitherto been deemed “invasive” or a violation of civil rights. It is important to point out that it is not the technology itself that brings the surveillance into question, but the fact that the surveillance is directed toward people living in the United States. After all, domestic surveillance has left a bad taste in U.S. History. One only need to recall the activities of the “House Committee on Un-American Activities,” and later, the investigations led by Senator Joseph McCarthy, to realize how good intentions to rid the nation of “enemy influences” can be reduced to actions taken upon rumor and speculation, resulting in devastating, life-spoiling consequences for its victims. Even in the 1960’s, Federal agencies kept close track of the activities of Viet Nam protestors, both violent and non-violent, grouping the two into the same categories.12 Granted, violent protestors who lashed out at law enforcement officers, with the intent to harm, should be brought to justice and serve the appropriate sentence, with due process. But unfortunately, hundreds of non-violent protestors were lumped into the same group, and they were also “brought to justice” and “served time,” which had life-spoiling consequences for those who were doing nothing more than following their First Amendment right to free speech. As Robert Dallek writes,

“Despite bars on domestic spying, the CIA created a Special Operations Group to look for connections between American dissenters and foreign operatives. The Justice Department and the National Security Agency also joined in the surveillance of radicals who were seen as disrupting domestic tranquility and undermining the war effort.”13

Despite its negative history, domestic surveillance should not be dismissed or prohibited just because the subjects reside in the United States, are citizens of the United States or immigrants living in the United States. Surveillance decisions should always be made based on assessed threat, or potential for harm, based on a documented history of illegal or suspicious activities, in accordance with due process of justice.

There are some vociferous critics to this point of view. The American Civil Liberties Union (ACLU), for instance, described the government’s position in obtaining new powers after September 11 as an “insatiable appetite,” characterized by government secrecy, a lack of transparency, rejection of equality under the law, and “a disdain and outright removal of checks and balances.”14 While no one is an advocate for unbridled political power, or ignoring due process, it’s important to point out that the justification for increased surveillance is stated very clearly in the Fourth Amendment of the Constitution. The Fourth Amendment clearly protects a person’s right not to be subjected to unreasonable search and seizure. And, if the information gathered can prevent terrorist attacks, then there is every reason in the world to conduct these surveillances, even (and perhaps especially) on citizens residing in the United States. As author Amitai Etzioni explains, “Historically, to be considered reasonable, searches have had to serve a compelling public interest, especially public safety or public health.”15 The surveillance techniques, as well as the targets of the surveillance, were clearly topics of heated debates. However, the Bush administration has had to base their decisions on the government’s right and responsibility to protect its citizens by preventing further terrorist attacks.

One could always ask people living in the United States if domestic surveillance is warranted and worth the possible infringement or intrusion upon their civil rights.

The “Civil Liberties Survey,” conducted by the University of Michigan between November 14, 2001 and January 15, 2002, found that 84% of Americans were “very concerned” or “somewhat concerned” about a future terrorist attack on the United States.16 So, an aggressive policy toward protecting our safety and security as a nation seemed well-grounded, according to this survey. Furthermore, a USA/Gallup Poll, taken June 21-23, 2002, asked, “Do you think the Bush administration has gone too far, has been about right, or has not gone far enough in restricting people's civil liberties in order to fight terrorism?” The response was significant: 60% of those polled felt that the Bush administration’s response was “about right” and 25% felt that the Bush administration was “not far enough.” A total of 85% of those polled were in support of restricting people’s civil liberties in order to fight terrorism.17

Chertoff’s second point, i.e., the USA Patriot Act would permit law enforcement and information-gathering agencies to work together, sharing information, in order to more accurately and precisely identify suspected terrorists. According to Michael R. Ronczkowski, finding terrorists and forecasting their activities is like putting together a puzzle of tiny pieces, where different agencies each have their own piece of information. “Managers must alter their styles of operation when addressing homeland security and terrorism analysis,” Ronczkowski explains, in order to fit the pieces of the puzzle together. This may involve such wide-ranging bits of information:

• Capabilities

• History

• Statements

• Support

• Intentions/causes/motivation

• Current and future capabilities

• Vulnerabilities of the organization

• Location of operation

• Dates of meaning or significance

• Membership

• Leadership

• Threatening calls or any other messages

• Attacks

• Financing or aid18

It soon became apparent to the Bush administration that one organization needed to be responsible for coordinating all of the pieces of information from the 22 different Federal agencies that enforce the law and/or gather information about those who break the law or who are suspected of breaking the law. This organization, the Office of Homeland Security (later named the Department of Homeland Security or DHS), was formed on September 20, 2001, and former Pennsylvania Governor Tom Ridge was its first director. It wasn’t long before the ACLU criticized the open sharing of surveillance information. ACLU Associate Director Gregory Nojeim told the New York Times that these efforts are, “heralding a dangerous ‘end run around the Fourth Amendment protections against unreasonable searches.’”19 Despite other concerns lodged from various local ACLU organizations, the DHS pursued its policies to gather and share information and pursue those who posed a threat to the nation’s safety and security.

The third point of the Patriot Act that Michael Chertoff addresses is the manner of searches and warrants, i.e., how the various agencies can obtain the right to conduct these searches. For instance, it has already been discussed that searches of suspected terrorists, family members, homes, offices, and their various activities do fall within the Fourth Amendment, provided due process is followed. However, Chertoff makes the specific point that there may be a “delay of required notices of the execution of a warrant if immediate notice may have an adverse result and under other specified circumstances.”20 Georgetown University Professor David Cole expresses his concern about this aspect of the Patriot Act.

“Before the Patriot Act, if you were investigating someone for a crime, you had to show probable cause of criminal activity in order to get that wiretap or in order to conduct that search. Under the Patriot Act, the government can avoid the probable cause requirement and do an end run by going the foreign intelligence route, which does not require probable cause of a crime. All they have to do is show the person is an agent of a foreign power. Again, that’s going to be used almost exclusively against immigrants, and it's not in any way, shape, or form limited to terrorist investigations or terrorist crimes.”21

Professor Cole’s point is well taken, and it strikes at the very heart of a government that abuses its power, its shared information, and re-defines its right to search suspected enemies of the state, based on the case, and not on due process. Beth Wilkinson, who was a lead prosecutor for United States v. Timothy McVeigh and a lead prosecutor for United States v. Terry Nichols, responds to Cole’s point:

“Look at what we know…about these [terrorists]. They were taking flying classes. They were getting money from different organizations. They were working together, but they weren’t doing anything that law enforcement would be able [to] easily to identify as acts in furtherance of terrorism. So we do need some additional tools to track some of those people that we think are more likely to participate in those types of activities instead of waiting until the act occurs.”22

In these cases, civil rights are not necessarily abandoned or abused; nor are they necessarily a “trade off” against the protection provided by the government. In fact, as long as due process if followed, the concessions made for information gathering and sharing can be, and should be viewed as a way to maintain the ongoing organization and operation of our government, which would actually maintain our civil rights and protect those rights from any one or any organization that would seek to destroy them. Our civil rights can only exist with the existence of our government. This is not a trade-off, but a necessary condition for freedom.

Finally, we turn our attention to Michael Chertoff’s last point of the USA Patriot Act that affects civil rights, viz., “authorizing the conditions for the detention of suspected terrorists, without regard to the strict application of a writ of habeas corpus, and allowing military tribunals without the standard protections of due process provided by civil courts.”23 This area has been one of the most highly-charged and controversial issues that the Bush administration has had to face. From the beginning of military actions in Afghanistan, Pakistan and Iraq in 2001, President Bush and the military identified captured soldiers as “enemy combatants,” not as “prisoners of war,” because, according to Bush, these soldiers were not citizens of any state; they were members of terrorist organizations, al-Qaeda or the Taliban, and therefore, did not qualify for the privileges provided captured soldiers according to the Geneva Convention.24 As “enemy combatants,” the President and the military detained these soldiers for unspecified periods of time, without a writ of habeas corpus, or the legal means to be charged and to judged according to the facts and/or witnesses of those charges. Moreover, President Bush and the military did not believe that “enemy combatants” should be tried in a court of civil law, with all of the civil rights of due process accorded to civil courts. Instead, as “enemy combatants,” these prisoners would be tried in military tribunals, because, according to military, any of the information that would be revealed in a civil court would be made public, and that information could put the safety and security of the United States in jeopardy.

The decision to place these prisoners in Gitmo as “enemy combatants,” and to deny them the rights of the Geneva Convention, was overruled by the Supreme Court on June 29, 2006. Essentially, the Court, “repudiated the Bush administration's plan to put Guantanamo detainees on trial before military commissions, ruling broadly that the commissions were unauthorized by federal statute and violated international law.”25 The Supreme Court dealt a crushing blow to the Bush administration and its approach to anti-terrorism. Earlier, we viewed a USA Today/Gallup Poll, taken in 2002, which asked the question: “Do you think the Bush administration has gone too far, has been about right, or has not gone far enough in restricting people's civil liberties in order to fight terrorism?” Notice how the public’s opinion has changed when the same question was asked by USA Today/Gallup this past May:26

| Date of Survey | |About Right |Not Far Enough |Unsure |

| |Too Far | | | |

| June 21-23, 2002 |11% |60% |25% |4% |

| May 12-13, 2006 |41% |34% |19% |6% |

In this last poll, 41% of those surveyed, almost four times as many people, stated that the Bush administration had gone “too far” in restricting civil liberties in order to fight terrorism. That is a significant change in public opinion. Moreover, only 53% of those surveyed believed that the Bush administration’s support of civil liberties was “about right” or “not far enough.” Clearly, it is risky business to draw too many conclusions from one survey. Even if this survey was an accurate portrait of American opinion, there are too many confounding variables that would cloud these results. For instance, some of the negative reaction seen this past May could have something to do with a growing dissatisfaction with the war in Iraq.

References

1. Davis, Darren W. and Silver, Brian D. “Civil Liberties vs. Security: Public Opinion in the Context of the Terrorist Attacks on America.” American Journal of Political Science, Vol. 48, No. 1, January 2004, p. 28.

2. “New York Trade Center Bombing—1993.” . February 26, 1993.

3. “U.S. sailors killed in attack on Navy vessel in Yemen.” . October 12, 2000.

4. Gibson, James L. 1989. “The Policy Consequences of Political Intolerance: Political Repression During the Vietnam War Era.” Journal of Politics 51(February):13–35.

5. “H.R. 3162.” Library of Congress. Thomas © 2006

6. “The USA PATRIOT Act and the American Response to Terror: Can We Protect Civil Liberties after September 11?” American Criminal Law Review. Volume: 39. Issue: 4. (2002): 1501+. © 2002 Georgetown University Law Center.

7. Ibid.

8. “H.R. 3162: Title II” Library of Congress. Thomas © 2006

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9. Davis, Darren W. and Silver, Brian D. “Civil Liberties vs. Security: Public Opinion in the Context of the Terrorist Attacks on America.” American Journal of Political Science, Vol. 48, No. 1, January 2004, p. 29.

10. Dinh, Viet D., “Forward: Freedom and Security After September 11:” Harvard Journal of Law and Public Policy. p. 401. (Classroom materials)

11. Ibid.

12. Kirkpatrick Davis, James. “The Media Office Raid: Secret FBI Counterintelligence Becomes Public.” Spying on America: The FBI's Domestic Counterintelligence Program. Westport CT: Praeger Publishers (1992) pp 1-22.

13. Dallek, Robert. Flawed Giant: Lyndon Johnson and His Times, 1961-1973. New York: Oxford University Press. 1998. p. 487.

14. Etzioni, Amitai. How Patriotic Is the Patriot Act? Freedom versus Security in the Age of Terrorism. New York: Routledge. 2004. p. 9.

15. Loc. cit., pp. 44

16. “Americans Unwilling to Give Up Civil Liberties in Exchange for Enhanced Security.” Michigan State University Institute for Public Policy and Social Research 23 April 2002.

17. “USA Today/Gallup.” . 6/21-23/02.

18. Ronczkowski, Michael R. Terrorism and Organized Hate Crime: Intelligence Gathering, Analysis, and Investigations. Boca Raton, FL: ACRC Press. 2004. p. 90.

19. “FBI, Justice Department Criticized by Secret Court for Illegally Sharing Information.” Institute for Global Ethics: Ethics Newsline. Volume 5: Number 35. © 1995-2001

20. “The USA PATRIOT Act and the American Response to Terror: Can We Protect Civil Liberties after September 11?” American Criminal Law Review. Volume: 39. Issue: 4. (2002): 1501+. © 2002 Georgetown University Law Center.

21. Ibid.

22. Ibid.

23. Ibid.

24. Elsea, Jennifer K. “Presidential Authority to Detain Enemy Combatants.” Presidential Studies Quarterly. Volume: 33. Issue: 3. 2003. p. 568+. © 2003 Center for the Study of the Presidency

25. Greenhouse, Linda. “Supreme Court Blocks Guantánamo Tribunals.” New York Times. 29 June 2006. © New York Times

26. “USA Today/Gallup.” . May 12-13, 2006.

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