The 'Unpatriotic’ Act: 10 years later

The USA Patriot Act became law 10 years ago today. It passed the U.S. Senate by an overwhelming vote of 96-1, with only Sen. Russ Feingold (D. Wisc.) in dissent, voicing deep concerns about the impact the new law would have on civil liberties and privacy rights.

During the brief debate over the Act, Feingold observed that the "Founders who wrote our Constitution and Bill of Rights exercised that vigilance even though they had recently fought and won the Revolutionary War. They did not live in comfortable and easy times of hypothetical enemies. They wrote a Constitution of limited powers and an explicit Bill of Rights to protect liberty in times of war, as well as in times of peace."

He traced the dark periods in our nation's history when civil liberties took a back seat to what appeared at the time to be the legitimate exigencies of war, including The Alien and Sedition Acts, the suspension of habeas corpus during the Civil War, the internment of Japanese-Americans, German-Americans, and Italian-Americans during World War II, the blacklisting of alleged communist sympathizers during the McCarthy era, and the surveillance and harassment of antiwar protesters, including Dr. Martin Luther King Jr., during the Vietnam War.

Feingold pointedly quoted Justice Arthur Goldberg in Kennedy v. Mendoza-Martinez (1963): "It is fundamental that the great powers of Congress to conduct war and to regulate the Nation's foreign relations are subject to the constitutional requirements of due process....' The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.... In no other way can we transmit to posterity unimpaired the blessings of liberty, consecrated by the sacrifices of the Revolution.'"

Feingold observed that even "as America addresses the demanding security challenges before us, we must strive mightily also to guard our values and basic rights. We must guard against racism and ethnic discrimination against people of Arab and South Asian origin and those who are Muslim."

With tragic prescience, Feingold noted that "there is no doubt that if we lived in a police state, it would be easier to catch terrorists. If we lived in a country that allowed the police to search your home at any time for any reason; if we lived in a country that allowed the government to open your mail, eavesdrop on your phone conversations, or intercept your email communications; if we lived in a country that allowed the government to hold people in jail indefinitely based on what they write or think, or based on mere suspicion that they are up to no good, then the government would no doubt discover and arrest more terrorists."

"But that probably would not be a country in which we would want to live. That would not be a country for which we could, in good conscience, ask our young people to fight and die. In short, that would not be America."

As chair of the Constitution Subcommittee of the Judiciary Committee in the Senate, Feingold expressed deep concern that the legislation "did not strike the right balance between empowering law enforcement and protecting constitutional freedoms." Under one provision, Feingold warned that "the government can apparently go on a fishing expedition and collect information on virtually anyone," which he called "a truly breathtaking expansion of police power."

Seeing so clearly into the future, Feingold warned that it was immigrants from Arab, Muslim, and South Asian countries who would bear the brunt of the Patriot Act. Feingold insisted that we "must maintain our vigilance to preserve our laws and our basic rights....Congress will fulfill its duty only when it protects both the American people and the freedoms at the foundation of American society. So let us preserve our heritage of basic rights. Let us practice that liberty. And let us fight to maintain that freedom that we call America."

Ten years later, due to the unprecedented secrecy, we still do not know the full extent of what has been done under the Patriot Act. In a comprehensive new report, "A Call to Courage: Reclaiming Our Liberties Ten Years After 9/11," the American Civil Liberties Union reveals that in the immediate aftermath of Sept. 11, the National Security Agency (NSA) tapped directly into major American communications centers, with the cooperation of U.S. telecommunications companies, to access billions of American emails, phone calls and other communications, which the agency then combed through for people it deemed "suspicious."

Although NSA's warrantless wiretapping program brazenly violated the law, Congress responded not with oversight but with a blank check. It legalized the NSA's eavesdropping activities - and authorized more. And when American scholars, journalists, and non-profit groups, represented by the ACLU, went to court to challenge the legality of the eavesdropping, the 6th U.S. Circuit Court of Appeals dismissed the suit because the plaintiffs could not prove that the NSA had spied on each one of them.

We now live in what the ACLU calls a post-Sept. 11 national surveillance society. Feingold's worst fears have come true. The NSA is now able to intercept and store 1.7 billion emails, mobile smartphones, GPS location tracking, search engines, and more.

In 2005, when Congress was debating whether to extend expiring provisions of the Patriot Act, Atty. Gen. Alberto Gonzales and FBI Director Robert Mueller brazenly testified there were no "substantiated" allegations of FBI abuse. But because the FBI exercised its Patriot Act powers in complete secrecy, Congress had no way to verify these claims, so it dutifully reauthorized the Act. At least it ordered an audit of the FBI's activities.

And guess what? The Department of Justice Inspector General released five damning audit reports "substantiating" thousands of violations of law and policy, just as Feingold had predicted. Yet in face of such uncontested evidence of the FBI's widespread misuse of its Patriot Act authority, did Congress repeal any of the sweeping powers it had granted? No. Instead, Congress, at the urging of both Presidents George W. Bush and Barack Obama, has repeatedly re-authorized all expiring Patriot Act provisions without narrowing them in any way.

Tragically, despite his campaign rhetoric, Obama, like Bush, has used excessive secrecy to hide potentially unconstitutional surveillance. Sen. Ron Wyden (D. Oregon) and Sen. Mark Udall (D. Colorado) have warned that the government is operating under a "reinterpretation" of the Patriot Act under which the executive branch is engaging in dragnet surveillance where "innocent Americans are getting swept up."

Yet for all the privacy we have relinquished in the name of preventing terrorism, and for all the national treasure spent on surveillance, we are no safer. A combined review of the NSA's secret wiretapping by inspectors general at key security agencies was unable to turn up any evidence that the program made us safer, despite its unprecedented scope. The same is true for national security letters. From 2003 to 2005, the FBI made close to 150,000 letter requests. But the FBI inspector general documented only one conviction in a terrorism case using data from such a letter during the three-year period, and found no instance in which a request helped to prevent an actual terrorist plot.

The ACLU observes that the "reality is that as governmental surveillance has become easier and less constrained, security agencies are flooded with junk data, generating thousands of false leads that distract from real threats. In the name of finding the terrorist needle in a haystack, our government has built the biggest haystack in history - and it is growing all the time."

Echoing Feingold's worse fears, the ACLU warned that "we risk changing our national character and surrendering one of the key freedoms we strive to protect - our right to privacy and our ability to speak, dissent, exchange ideas, and engage in political activity without the chilling fear of unwarranted government intrusion."