Patriot Act is unpatriotic

By David Noah

As President Bush and his cabinet continue to roll forward with the War on Terrorism while most Americans look backward to September 11, we need to rethink how we’re fighting it. Though it seems that the war in Iraq would provide the wake-up call required to make Americans leery of their government, we still gaze backward transfixed by the shade of the carnage and smoldering rubble of September 2001. Still, those few ultra-liberal watchdogs always on guard have managed a reasonable amount of anti-war barking. Bolstered by international support, the war with Iraq has languished …to some extent. But all of us—suspicious liberals, apathetic dilettantes, and staunch patriotic Bush supporters alike—fail to realize that while we debate with mellifluous rhetoric, like Nero playing the lyre, we are watching Rome burn.

Maybe the metaphor is too strong, but it is truer than any of us should be comfortable with. The greatest effect of the terrorist attacks passes almost unnoticed. The enacting of the US Patriot Act on October 26, 2001, and the subsequent use of the act to roll back Posse Comitatus, gather intelligence, and detain potential terrorists has converted a president into an emperor, and an already imperial republic into an empire.

The Patriot Act greatly increased the number of exceptions to the Posse Comitatus Act of 1878, which disallowed use of the army for police actions inside our borders. Both Democratic and Republican senators defended this aspect of the act, pointing out that, in the event of a terrorist attack, the president can dispatch the army, but Posse Comitatus denies them the right to “shoot to kill.” However, I’m not convinced that terrorist acts succeed because of lack of U.S. firepower. If another such catastrophe occurs, there will be little left to shoot or kill. Both the Second Amendment and the Posse Comitatus Act prevent the federal government from arrogating to itself this sort of power. Now we have given one man the power to police American citizens with the army.

The Patriot Act expands executive power in other ways, too. It permits “roving wire taps,” which enable the government to get a non-specific court order allowing investigation of any phone, voice mail, e-mail, or library record they suspect contains information helpful to an investigation. It also specifies the expansion of the ultra-secret Foreign Intelligence Surveillance Act (FISA) court, allowing intelligence agencies the right to apply for surveillance when gathering foreign surveillance is “a significant reason” instead of “the only reason” for the request. Since the expansion of the court’s powers, it has accepted almost every request submitted by the intelligence community. Yet even the FISA court published an opinion in August stating the dissolution of the separation between law enforcement and intelligence gathering agencies. If the FISA court is concerned with the growing power of the executive branch, under which agencies like the FBI and CIA operate, we should be terrified. Even the FISA court shudders at the realization that our civil liberties are being whittled away without a peep from the public.

More famously, the Patriot Act permits the detention of resident aliens suspected of links to terrorism. Although the government should have the right to investigate these resident aliens as they do any citizen suspected of a crime, the detainees are tried in secret unmonitored tribunals, denied counsel, and held incommunicado for indefinite periods. This sort of “kangaroo court” violates the spirit if not the letter of our constitution.

Why discuss the Patriot Act now, more than a year after it was passed? I was not immediately sure that the act fit into the greater trend of the growth of the federal government at the expense of individual rights. While the executive branch has grown in size and power, Bush has demonstrated his firm control over legislators by winning the Senate with his star power. The impending war with Iraq, Cheney’s accusations of unpatriotic attitudes, and Bush’s relative disregard for the Senate when they expressed doubt about his actions all suggest a move from republic to empire.

Consider the prophetic words of Thomas Jefferson: “Our rulers will become corrupt, our people careless… From the conclusion of this war, we shall be going downhill. The shackles, therefore, which shall not be knocked off at the conclusion of this war, will remain on us long, will be made heavier and heavier, till our rights shall revive or expire in a convulsion.”