July 08, 2004
Matto Ichiban: Restating the Obvious About PATRIOT
by Guest Contributor
I have never read the Patriot Act, but have heard it attacked with strong words as a tool used by "Big Brother" to pry into the lives of innocent Americans. I have been reluctant to write about something as serious as this without sufficient knowledge. Still, with the recent news that the Patriot Act is likely to stay around for a while longer, perhaps I can post something generally about what has clearly been the defining mark of the Bush administration and a main point of contention in the presidential election: the War on Terror being fought on our shores.
Liberty is an odd concept: in the abstract people are for it, even enshrining it in our nation's founding document as a right that cannot be deprived without due process of law. But what do people mean by liberty? In the general sense, it means the freedom to do what one wishes without being constrained by government. In reality, too often it means preserving the "right" freedoms, while allowing other freedoms to be restrained quite harshly.
The best example is anti-discrimination law, but any pervasive government regulation (which in whole is quite pervasive indeed, and increasingly more so in many areas of our lives) restricts people's freedom in exchange for a certain other benefit. We feel we are better off without racial preferences (at least the "wrong" racial preferences) in hiring, housing, serving, or law enforcement. We feel we are better off if the government sets a minimum wage and maximum hour laws for minors. Perhaps we are right, but we should not deny that it is a restriction in freedom (I may be plagiarizing Scalia here, but I hope I can be forgiven. Read more Scalia).
In many ways we expect the government to restrict the freedom of some few in order to gain a benefit for the many, as evidenced by the sentiment of government failures that led to 9/11. I don't subscribe to many of these feelings myself, but it is hard to deny that ownership of Microsoft Flight Simulator and taking flying lessons are much more of a red flag then they were four years ago, and part of a puzzle that some believe the government should have put together before that fateful day. The freedoms of these few, certainly, should have been restricted, some will say, as if speaking about the government failing to stop a drug company from selling a product with harmful side effects.
Insofar as this attitude is in direct conflict with a libertarian attitude about civil liberties, I can defend the Patriot Act, at least until we can see it's effects over a number of years. If the government is allowed to tax people and give money when some are old, pay for care when some are sick, or use the threat of its courts to force a company to employ certain groups, can we really complain that that same government can look at what we read? Does the Constitution really allow such selective restrictions of liberty, especially when the feared overreaching of the Patriot Act is not apparent on the face of the law?
I only scratch the surface here, and there are probably many valid criticisms of the Patriot Act, but I will end with this: The U.S. government is not the gestapo, we do not have a KGB, and the Patriot Act is not the Sedition Act. If we are going the judge the Bush administration by this Act, then we should also make sure we set the Act as a product of its time, and at least in part a product of an ever expanding regulation of everyone's lives. Government using power, in and of itself, is not an argument against Bush, but I think too often it is put that way.
July 8, 2004 11:37 PM
I don't really buy your argument (and I think the "debate" will take place on a vague, broad, amorphous level for better or worse). So in the spirit of academic discussion, your argument seems to be that to the extent that the act effects an increase in government power it's not in itself bad? Or that government regulation is ever increasing. The increase represented by the act is not bad?
The two off the cuff responses to this are that certain rights are treated as more important than others. Usually found within the Amendments and what people refer to as civil liberties. For a variety of reasons these rights are viewed as more important than other rights. Many argue, rightly or wrongly, that the act infringes on many of these rights. So, yes, this is pretty different from a minimum wage law and you are comparing apples and oranges in comparing these two "regulations". Second there's a whole secrecy issue underlying the act and the administration in general. Sure minimum wage is something we grumble about but in general we can know what's going on in government re min. wage. Along these lines are the circumstances of its passage.
My opinion is that to the extent that 9-11, Iraq, etc. etc. are seen as a result of intelligence failures, this presents a strong argument against the increase in govt. powers. In the end I think this is a conclusion most people come away with. Increased government power is not going to solve any problems.
And yes you should read it. You have no excuse for not doing so. We may not all understand it but at least we can get our hands dirty, or try.
I agree with Venkat. Read the Act or at least try to before arguing that you can defend the act and before putting this question out there: "Does the Constitution really allow such selective restrictions of liberty, especially when the feared overreaching of the Patriot Act is not apparent on the face of the law?" Not having read the Patriot Act, how can you assume that the "feared overreaching" is not apparent on its face? How can you know whether it is defensible in anything more than the most generalized sense?
Yet we see such off the cuff comments all the time from the other side, as in the news article I linked to: "In the fight against terrorism, we've got to keep our eyes on two prizes: the terrorists and the United States Constitution." (emphasis mine). When the Constitution protects something as vague as "liberty," and assuming we are not talking about a specifically protected right, like being free from unreasonable searches and seizures, why are we justified in picking one form of liberty to protect over another? Why does the Constitution protect one person's conception of important civil liberties over another?
On another note, which I could have made more explicit in my original post, if people allow the political process to restrict certain liberties on a nominal level, why are others categorically immune? If Bush is going to be attacked for the Patriot Act's "invasions of civil liberties," it has to be done in a way other than a knee-jerk government-power argument because its critics are only too happy to use such power when it agrees with the goal (not just believes the goal is constitutional). One could certainly claim that any increase of government power is bad, but I think it undercuts one's argument to say that the Patriot Act's increase of power (qua power) is bad while arguing for, say, universal health care, which will affect taxes on citizens, people's professions, and many others' jobs.
It is not enough to say that certain liberties are more important without more. If we seriously want to say that certain liberties are more important than others, then it should not be framed in a categorical sense, but rather because certain undesireable consequenses are more likely to flow from certain restrictions than from others, perhaps a "slippery slope" type of argument.
To bring this into a more concrete form, I will offer the following for discussion: The ability to monitor library books is not such a bad thing; while I would rather not be watched, I don't much care if the government simply records what I read. Thus, this is one of the Patriot Act's powers that is unjustly criticized.
And I haven't read the Patriot Act because I suspect it is a long, sprawling piece of legislation that affects many sections of the U.S. code, and I have neither the time nor the desire to seek them all out.
Once the government can demand of a publisher the names of the purchasers of his publications, the free press as we know it disappears. Then the spectre of a government agent will look over the shoulder of everyone who reads. The purchase of a book or pamphlet today may result in a subpoena tomorrow. Fear of criticism goes with every person into the bookstall. The subtle, imponderable pressures of the orthodox lay hold. Some will fear to read what is unpopular, what the powers-that-be dislike. When the light of publicity may reach any student, any teacher, inquiry will be discouraged. The books and pamphlets that are critical of the administration, that preach an unpopular policy in domestic or foreign affairs, that are in disrepute in the orthodox school of thought will be suspect and subject to investigation. The press and its readers will pay a heavy price in harassment. But that will be minor in comparison with the menace of the shadow which government will cast over literature that does not follow the dominant party line. If the lady from Toledo can be required to disclose what she read yesterday and what she will read tomorrow, fear will take the place of freedom in the libraries, book stores, and homes of the land. Through the harassment of hearings, investigations, reports, and subpoenas government will hold a club over speech and over the press.United States v. Rumley, 345 U.S. 41, 57 (1953) (Douglas).
What people tend to forget is that libraries are themselves government institutions, and they already keep a list of what individuals read. Those seeking true privacy should probably avoid them.
It cannot be said that the State is acting arbitrarily or unreasonably when in the exercise of its judgment as to the measures necessary to protect the public peace and safety, it seeks to extinguish the spark without waiting until it has enkindled the flame or blazed into the conflagration. It cannot reasonably be required to defer the adoption of measures for its own peace and safety until the revolutionary utterances lead to actual disturbances of the public peace or imminent and immediate danger of its own destruction; but it may, in the exercise of its judgment, suppress the threatened danger in its incipiency. In People v. Lloyd, it was aptly said: "Manifestly, the legislature has authority to forbid the advocacy of a doctrine designed and intended to overthrow the government without waiting until there is a present and imminent danger of the success of the plan advocated. If the State were compelled to wait until the apprehended danger became certain, then its right to protect itself would come into being simultaneously with the overthrow of the government, when there would be neither prosecuting officers nor courts for the enforcement of the law."Gitlow v. New York, 268 U.S. 652, 669-70 (1925).
A defense of Bush and the Patriot Act that you present is that critics of the act are too quick to criticize it as an invasion of civil liberties. You argue that this condemnation of the act arbitrarily enshrines certain liberties (like being able to check out a library book without being tracked) as "categorically immune," and gives them priority over other liberties (like being able to live our lives with the reasonable expectation that the government is preserving our national security). I'd like to point out that you could apply this argument just as easily to the Bush Administration and the Patriot Act--that the Act also enshrines certain liberties (like having the reasonable expectation that the government is maintaining our national security) to the detriment of others (like preserving your privacy when you check out a library book).
Given this quandary, you suggest that a useful yardstick by which to gauge the utility of the Patriot Act, or any other situation in which the government must restrict some liberties in favor of others, is to consider whether the outcome of Liberty Restriction A is less desireable than the outcome of Liberty Restriction B. Your comments imply that you are willing to relinquish certain liberties (like checking out library books in privacy) for the sake of national security and how it might be preserved through monitoring the reading habits of American citizens. This is because the benefit of feeling secure outweighs the cost of being tracked to you.
However, this viewpoint is somewhat shortsighted as to the relative costs and benefits of the Patriot Act. A much broader, longer-term view is necessary to understand the implications of the Act. For example, the Patriot Act requires U.S. companies in certain sectors of industry that deal with "sensitive" technologies to register with the government and to pay a fee in order to be able to hire foreign nationals. They must also conduct background checks on these employees. The concern is that foreign nationals might export sensitive information, such as knowledge gained from nuclear research, biological and immunological research, etc., to countries where such knowledge, in the hands of terrorists, could do harm to the United States. The Patriot Act also requires companies in the financial markets to conduct extensive background checks on their clients: brokers who execute stock market trades must do checks on the investment advisors who request the trades; those investment advisors, in turn, must do checks on their investors; accounting firms must also do checks on their clients; etc. This is to prevent terrorists or terrorist sympathizers from investing in and profiting from the U.S. economy to fund terrorist activities.
The goal of these regulations is noble: to preserve the national security of the United States. However, what are the unintended consequences of such stringent requirements? Already companies engaged in research on the very cutting edge of technology are moving to friendlier countries where the costs of hiring bright, intelligent, and skilled foreign nationals are not so prohibitively high. (Keep in mind that over half of the graduate student population studying science, math, or computer science in the U.S. is foreign. Foreign nationals constitute an overwhelming percentage of the labor force in these fields in the United States.) Companies that invest and handle money are also moving abroad to other locations where operational costs are cheaper. I am not mentioning these points to suggest that the Patriot Act has prompted, or is promoting, a mass exodus of industry from the United States. However, I do not think it is an unreasonable exaggeration to suggest that, in ten or twenty years, the United States will no longer be a world leader in industry, technology, and scientific research like it is today, simply because the very best and brightest minds will not be here. I also do not think that it is unreasonable to suggest that, in ten or twenty years, terrorist attacks on the United States or U.S. allies will still be occurring. Resourceful terrorists will always be able to find access to knowledge, technology, and funds. The United States might be able to prevent terrorists from finding these resources in this country, but it will also prevent smart, talented, law-abiding individuals from utilizing these same resources. Other countries like Australia, Germany, and Taiwan will undoubtedly benefit from such individuals' talents and labor, and from American myopia regarding national security.
Are such costs acceptable to the United States in the name of national security? It is difficult to say, but the Patriot Act in its current incarnation is an inelegant and short-sighted solution to a problem that will not go away any time soon.
In the dueling quotations department, I think Balasubramanian wins this one. Gitlow, as I hope Matto knows, is not even close to current First Amendment doctrine. New York, remember, convicted the defendant for publishing a "Left Wing Manifesto" urging "proletarian revolutionary struggle." We don't put people in jail for that anymore.
All of which is to say, perhaps, that there's certainly a good constitutional basis for greater concern about supervision of people's reading habits than the minimum wage law. The First Amendment is a "specifically protected right."
Well, if we are talking about doctrine, then I am well aware that my quote is questionable precedent, though a facsinating quote nonetheless, and I hope that all people will recognize that taken at the extreme the doctrine of peacetime is misplaced in a time of war.
And while we`re on the subject of doctrine, I'll point out that Balasubramanian's quote is a concurrance; the majority decided on statutory grounds.
As to Esther's point, it is a good one, but one that I haven't heard made ever, much less by a candidate for office. It is not a knee-jerk "the Patriot Act restricts liberties" argument. As to the economic consequences, I am no economist, but certain similar arguments could be made about minimum wage laws and labor unions pushing jobs overseas. These are complex issues indeed.
I'd like to push a little harder on your "time of war" exception to either specific constitutional guarantees (e.g., First Amendment doctrine) or even less specific ones (e.g., those "as vague as liberty.")
The thing is, you see, I don't see that exception written anywhere in the Constitution or its amendments (and I've checked all the copies of the Constitution I own.) I've read some arguments along those lines, true, but then I've also read things like Justice Thomas's dissent in Hamdi, which utterly demolishes them. (Unintentionally, I assume. I can't believe he would choose such a forum to publish a work of Swiftian genius.)
All of which is to say: those anxious to trade on our rights, either specific or vague, have an obligation to, as part of their proffer, more adequately describe and defend 1) the extent and 2) the temporal limits of such exchanges.
Rumely strikes me as inapposite, because it concerned a private publisher. A public library, as I noted earlier, is itself a government entity. Those on this thread who suggest that an individual's transaction with one government entity (the library) should be privileged from disclosure to another government entity (law enforcement) may well be correct, but I think they should come up with some more closely targeted legal authority.