The Patriot Act and the Surveillance Society
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Description
On March 9, 2006, after much delay and heated accusations between Republicans and Democrats, Congress reauthorized the USA Patriot Act-the famous (or infamous) grab bag of law enforcement and intelligence-gathering powers originally approved by Congress immediately after the attacks of September 11, 2001. Despite the passage of five years and countless working hours of experience implementing its provisions, the bitter reauthorization debate unfolded in virtually complete darkness. The administration insisted that the new powers be preserved intact-indeed, that anything less would invite disaster. Yet the administration provided almost none of the concrete details necessary to assess the provisions or to understand their impact. In the end, the act's most controversial powers were approved with little or no change, and nearly all were made permanent. The elections of November 2006, which shifted control of both the Senate and House of Representatives from the Republican Party to the Democrats, clearly signaled public dissatisfaction with the Iraq War but also a more general skepticism about unchecked executive authority and a hunger for responsible oversight. It remains to be seen whether Congress will accept that mandate or allow itself to be pushed back into the quiescent role it played during the past five years. Despite the meager results of the recent reauthorization debate, there is still time to correct some of the Patriot Act's worst flaws if Congress is willing to insist on obtaining essential information, make it public where possible, and enact new legislation that reins in unnecessary powers and establishes effective safeguards against abuse. As enacted on October 26, 2001, the original USA Patriot Act represented for many Americans the epitome of mindless overreaction, a tragically misguided grant of law enforcement power that will end by destroying our liberties in order to save them. Those reactions, though not baseless, are easy for the act's defenders to refute. As they accurately point out, the act is filled with innocuous technical correctives, well-justified responses to new communications technologies, and even a few provisions creating useful new safeguards for civil liberties. Of the act's 161 distinct provisions, most are in no way controversial or problematic. Among the provisions that really do enhance law enforcement power, many are narrow and carefully tailored, enough so that few experts see in them any legitimate basis for concern. That said, the Patriot Act also includes provisions that seem technical but, once understood, have alarming implications. Many of its new surveillance powers are far broader than necessary. Some bear no relation to the terrorist threat at all. And even where a grant of new intelligence-gathering authority can be justified, the Patriot Act fails to ensure that executive branch officials remain accountable for the ways their broad new powers are used. The absence of effective oversight is no minor detail. This deficiency is dangerous. It not only heightens the risk of overreaching and abuse, but it also undermines the counterterrorism effort itself As members of the 9/11 Commission unanimously warned: “The American public has vested enormous authority in the U.S. government. . . . This shift of power and authority to the government calls for an enhanced system of checks and balances to protect the precious liberties that are vital to our way of life.” Yet the Patriot Act, as originally written, paid scant attention to this concern, and subsequent amendments have compounded the problem, expanding several of the act's most problematic provisions while doing little to require effective oversight. Ultimately, therefore, the Patriot Act does deserve much of its dark reputation. Yet legitimate criticism and public uneasiness about the act have been swamped by skillfully manipulated fears of a new terrorist attack. And in some areas where the Patriot Act retains significant safeguards, the Bush administration has simply by-passed existing laws to engage in secret surveillance on its own terms, with no accountability whatsoever. These actions have generated criticism, to be sure, but much of the public has been favorable or indifferent to them, indicating again the absence of widespread appreciation that these unnecessary shortcuts are dangerous to both our civil liberties and our security. Before focusing on the dangers, however, it is worthwhile first to acknowledge the places where the Patriot Act made constructive, well-justified changes in American surveillance law.
Source Publication
Liberty Under Attack: Reclaiming Our Freedoms in an Age of Terror
Source Editors/Authors
Richard C. Leone, Greg Anrig, Jr.
Publication Date
2007
Recommended Citation
Schulhofer, Stephen J., "The Patriot Act and the Surveillance Society" (2007). Faculty Chapters. 1382.
https://gretchen.law.nyu.edu/fac-chapt/1382
