The danger that the USA Patriot Act poses to our democracy is not only a function of the sweeping powers it has given law enforcement, but the very manner the bill was passed and the way Congress is now being pushed to renew it.
It was a scandal from the beginning. When, shortly after 9-11, Congress first saw what the Administration was proposing in the Act, many members were concerned. They recognized, of course, that there were critical issues that had to be addressed: borders had to be made more secure; there was a need to improve upon the way that different law enforcement entities related to one another; and new technology and procedures were required to improve intelligence gathering and sharing. There was consensus on these points.
Some members of Congress balked, however, at other proposed provisions that they believe violated fundamental rights protected by the Constitution. The Administration, for example, was proposing that new powers be given to law enforcement to conduct surveillance against unnamed groups and individuals not accused of any crime, conduct secret searches of people’s homes and businesses and secure library and business records of individuals not accused of any crime-all without strict judicial review or oversight.
In the face of strong pressure from the Administration and a public traumatized by the terrorist attacks, Congress worked to create a compromise that while not perfect, was less permissive than the original Administration proposal.
That effort, however, was never voted on. Instead, the Republican leadership, in a surprise move, replaced the bi-partisan compromise effort with the Administration’s original version and forced a vote. Members were then called on to vote for a huge piece of legislation, which many had never read or even seen.
After some negotiations with the Senate, the Patriot Act was given its final form, which provided that some of the more controversial sections be allowed to expire in 2005.
Now, in an effort to make these provisions permanent, the Administration has launched a campaign to reauthorize the sections scheduled to expire.
Since passage of the Patriot Act, civil libertarians, both liberals and conservatives, have mobilized opposition. As a result, over 300 state and local governments have passed resolutions opposing reauthorization of the bill’s controversial sections.
To be clear, opposition has grown to include more than just the Patriot Act itself. There is also deep public concern with a whole array of initiatives and policies implemented in the post-911 era. For example, Amnesty International (AI) has issued a strong condemnation of US detention of over 68,000 individuals in prison camps around the world. These prisoners, according to AI, are mostly unknown, uncharged and unable to provide any defense, abused and held in secret. Immigration advocacy groups have, likewise, issued reports on the mass detention and abuse meted out to individuals held in the US. And Arab American and immigrant advocacy organizations have reported on the negative impact of profiling that has resulted in the interviewing of tens of thousands of Arabs and Muslims in the US, the detention of thousands and the placing of over 14,000 in deportation proceedings.
There are two bi-partisan proposals currently being offered in the Congress designed to deal with these concerns. The Security and Freedom Enhancement (SAFE) Act, for example, is designed to "retain all of the provisions of the expanded authorities created by the Patriot Act, but place important limits" on them. At the same time, the Civil Liberties Restoration Act specifically addresses the abusive practices instituted by the Department of Justice and seeks to terminate them and provide remedy for some of those affected by these practices.
Can these corrective measures succeed? Given recent behavior displayed by the Congressional leadership, I fear not. Last week I had been invited to testify before the House Judiciary Committee on the impact of the Patriot Act. Appearing with me before Committee were the Board President of Amnesty International USA, and officers with the American Immigration Lawyers Association and Human Rights First.
We had been invited by the Democratic side, a fact which displeased the Republican Chairman of the Committee, and which he made clear in his opening comments. As the hearing progressed, it also became clear that the Republican majority was determined to follow President Bush’s lead and reauthorize the Patriot Act without reservations. Their argument that there are no substantial abuses of the Act is, at best, a facile one, since the "searches," et al, called for in the Act, are "secret" and the Department of Justice has not been forthcoming in providing details of how they have used their new powers.
Republican members were, likewise, unmoved by reports of indefinite detention, profiling, and torture and other forms of abuse, claiming that these had nothing to do with the Patriot Act, as such. This, despite the fact that the Act specifically calls for periodic reviews of such practices by law enforcement officials.
As troubling as I found this lack of concern with the impact all of this was having on our democracy, my concern was heightened by the way the hearing ended. At one point, the Chairman, in a pique, decided he’d heard enough, ruled that no more questions would be answered and told the witnesses that he deemed their testimony to have been irrelevant. He then pounded his gavel and, over the objection of the Democrats, called the hearing to an end. Not only did the Chairman then leave, but he ordered the microphones in the room to be turned off as well.
All who remained in the room were stunned at this behavior and the silencing of debate. I could not restrain myself from commenting,
I just saw something…totally inappropriate. No mic on and no record being kept. But I think as we are lecturing foreign governments about the conduct of their behavior with regard to opposition — when I see the behavior I saw here today as an American — I’m really troubled about what kind of lesson this is going to teach to other countries in the world about how they ought to conduct an open society that allows for an opposition with rights. I’m sorry, I’m very offended.
Even without the microphone, C-SPAN television continued to carry the proceedings live (and repeated it three more times during the day), providing American viewers evidence of the strong-arm tactics being used to push forward the renewal of the Patriot Act.
The debate, however, is not over and conservative and liberal opponents of the Patriot Act have not had their final say. But there can be no doubt that these are trying time for our democracy.