POLICE STATE: Patriot Act I -- History and Formation

by Fred Copley

The immense scale of the 2001 terrorist attacks provoked a correspondingly immense effort to stop and to prosecute terrorists. Better than the War on Terror, or as it was called for a while, the Global Struggle Against Violent Extremism, a more accurate name would be the more modest War on Terrorism, for, unfortunately, attempts to counter terrorists have generated a chill, if not a terror, of their own.

The fear is that the war on terrorism is causing collateral damages among the American people and their liberties.  The chief occasion for this fear, although not the only one, is the U.S.A. PATRIOT Act, which was passed with the professed intention of unifying and strengthening America by providing appropriate tools required to intercept and obstruct terrorism.

The law, signed by President Bush on October 26th, 2001, passed the House by a vote of 357-66 and went virtually unopposed in the Senate, 98-1, Senator Russ Feingold of Wisconsin being the lone dissenter. Even with such overwhelming support, the law's provisions were deemed so dramatic that a sunset clause would require reauthorization in five years.

That reauthorization was signed into law on March 9th, 2006, passing 89-10 in the Senate and 251-174 in the House. Although still overwhelming, this time support was not so automatic and the law was allowed to pass only with amendments offering added protection of civil liberties. These protections are to some degree offset by other additions strengthening the executive power, and critics contend that the real threats to liberty have been left untouched.

Controversies revolve around the tools thus provided to the executive branch. Two of the primary authors of the legislation, Viet Dinh and John Yoo, claim that the Patriot Act merely tailors existing powers to meet the challenges of the information age.  Even without such legislation, these scholars attribute to the president the authority to do essentially whatever is required to defend the nation. Viet Dinh, now teaching law at Georgetown University, has made a stir by criticizing the Bush administration's failure to recognize basic due process in the Padilla case, but he  continues to defend the Patriot Act itself. John Yoo, now at Berkeley and also teaching law, maintains a less complicated stance, advocating a strong executive branch and downplaying the authority of the Geneva Conventions.

To its critics, on the other hand, the Patriot Act has not brought a mere closing of loopholes but rather a curtailment of liberties. Two other authors of the act, head of Homeland Security Michael Chertoff, and former Senator Bob Graham, who chaired the Senate Intelligence Committee, have criticized the act’s lack of provision for due process.  The point here is that even to its authors and supporters, the U.S.A. Patriot Act was not an incremental adjustment to existing practice but rather a serious shift in the way our nation is governed, a shift judged momentarily necessary because of the terrorist threat.

One of these supposedly incremental readjustments was the move to allow sharing of information between law enforcement and intelligence agencies. Although most would concede its necessity on some level, the blurring of these lines risks a blurring of the police and military functions and the confusion of the president's role as chief executive with that of commander-in-chief. In the name of fighting terrorism, this blurring can lead to wars that are not about fighting terrorists at all (IRAQ) and to an approach to law enforcement that treats the courtroom like a battleground.

(Image from flickr.)