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Ten years of the Patriot Act

Posted by Carol Rose, On Liberty  October 25, 2011 04:28 PM

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Ten years ago, Congress passed the so-called Patriot Act with virtually no public debate about what this extraordinary grant of power to the executive branch would mean for our democracy.

So what have we learned in a decade?

One lesson is that the Patriot Act hasn’t been about getting the bad guys – namely, terrorists or even criminals. The government had the power to do that without the Patriot Act. Instead, the Patriot Act gives the government the power secretly to collect and forever keep information on ordinary people who are not suspected of doing anything wrong.

And that is a threat to all of us.

Here are three things you should know about the Patriot Act:

First, it gives the Feds virtually unchecked power to spy on ordinary Americans without a warrant.

Second, the Patriot Act hasn’t made us safer.

Third, the government has been lying to the American people about how the Act is actually being used.

Let’s unpack each of these in turn.

First, the Patriot Act and its progeny permit the government to spy on innocent people. It does this by applying the lax rules – designed in the 1970s to allow wiretapping of Soviet spies – to be used instead to eavesdrop on ordinary Americans.

By lowering the burden of proof required to engage in domestic surveillance, the Act permits Federal agents to place bugs and conduct other forms of surveillance in your home, your office, on your computer, or phone – all without a showing of “probable cause” that you are involved in a crime. The FBI has interpreted this power to extend to gathering information about you from car rental companies, casinos, Internet hosts like Google, social networking sites like Facebook, and most likely cafes and businesses that offer WiFi access to their customers.

Second, these new government spying powers haven’t made us safer. Repeated Inspector General reports on the Patriot Act and related government spying programs have unearthed multiple instances of government officials abusing their power.

But they have yet to find evidence that these new spying powers have made it easier to catch terrorists. In fact, the overwhelming number of arrests that the government has attributed to Patriot Act powers were, in fact, drug arrests that could have been prosecuted without Patriot Act powers.

Finally, the situation is worse than you think – or than the public knows – because the government has been lying to the American people about how it uses its Patriot Act powers.

Last May 2011, as Congress prepared to reauthorize expiring provisions of the Patriot Act, two members of the Senate Intelligence Committee – Sen. Ron Wyden and Sen. Mark Udall – were given the Executive Branch’s classified interpretation of the Act.

Alarmed by what they heard, they have urged the Executive Branch to stop misleading Congress and the American people about the actual interpretation and use of the Patriot Act.

“As members of the Senate intelligence Committee,” they wrote, “we have been provided with the executive ranch’s classified interpretation of [the Act] and can tell you that we believe there is a significant discrepancy between what most people – including many Members of Congress – think the Patriot Act allows the government to do and what government officials secretly believe the Patriot Act allows them to do.

“What does this mean?” the Senator’s ask.

“It means that Congress and the public are prevented from having an informed, open debate on the Patriot Act because the official meaning of the law itself is secret…this is unacceptable.”

“In a democratic society, government agencies derive their power from the public’s trust – what James Madison called a ‘Foundation of Authority.” Secret laws undermine that trust and authority, which then erodes and ultimately damages our ability to fight terrorism and protect the American people.”

Senators Wyden and Udall then proposed an amendment to require the government to tell the truth to the American people about the Patriot Act: “United States Government officials should not secretly reinterpret public laws and statutes in a manner that is inconsistent with the public’s understanding of these laws and should not describe the execution of these laws in ways that misinforms or misleads the public.”

How did Congress respond? It reauthorized the Patriot Act without public debate – again.

So remember: whatever government officials say in public about the Patriot Act may be untrue.

The founders of our great country understood why unlimited government power to spy on people is intolerable. Americans were especially outraged by the general warrants the Kings’ agents employed to search at will – knowing that fishing expeditions just to see if someone has done something wrong is a power associated with totalitarian states.

They wrote the Fourth Amendment to the Constitution to ensure that it would never happen again. By requiring government agents to explain their reasons for searching our personal papers and effects, the Constitution puts a judicial check on the ability of executive branch agents to trample our privacy, target political opponents, or focus on people of a particular race or religion.

Our Constitution is resilient and has served us well through many threats to our national security. But today, it needs us – its citizens and true patriots -- to demand that its protections be restored.

Key provisions of the Patriot Act will again be up for reauthorization in 2012. Let’s hope that, after a decade of Patriot Act abuses and government cover-ups, the American people will rise up and demand that Congress restore the checks and balances that form the cornerstone of our democracy and ensure our liberty.

This blog is not written or edited by Boston.com or the Boston Globe.
The author is solely responsible for the content.

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About the author

Carol Rose is executive director of the American Civil Liberties Union of Massachusetts. A lawyer and journalist, Carol has spent her career working for and writing about human rights and civil liberties, both in the United States and abroad. More »

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