Debate on Patriot Act and First Amendment continues

Wednesday, September 7, 2011

After the terrorist assault on Sept. 11, 2001, seared the collective conscience of the civilized world, the U.S. legislative response came quickly. Within 45 days Congress passed and President George W. Bush signed into law the United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act — better known by its acronym, the U.S.A. PATRIOT Act.

Signed on Oct. 26, 2001, the law spanned more than 340 pages, amended at least 15 federal laws and sparked a national conversation. Critics contended that the law violated numerous constitutional provisions — including the Fourth Amendment prohibition against unreasonable searches and seizures and First Amendment freedoms of speech and association. Proponents countered that the law simply calibrated the proper balance between security and liberty in a dangerous world of international terrorism.

Civil-liberties proponents and groups railed against the law as an egregious assault on individual liberties. In his book, The War on the Bill of Rights and the Gathering Resistance (Seven Stories Press, 2003), Nat Hentoff warned that the Patriot Act would create a generation of younger Americans who “have been accustomed to — indeed conditioned to — the diminishment of the Bill of Rights.”

The American Civil Liberties Union has campaigned tirelessly against the act. In its 2009 report, Reclaiming Patriotism: A Call to Reconsider the Patriot Act, the ACLU wrote that “the Patriot Act eroded our most basic right — the freedom from unwarranted government intrusion into our private lives — and thwarted constitutional checks and balances.”

Supporters of the Patriot Act counter that the law has been an essential tool in preventing another 9/11 from occurring on American soil. George W. Bush credits the law for saving lives in his memoir, Decision Points. Columnist Brendan Steven writes in “In defence of George W. Bush” that “There’s no doubt that the PATRIOT Act helped prevent any ensuing domestic terrorist attacks after 9/11.”

Other supporters argue that the attack against the Patriot Act has been blown out of proportion.

“I have seen no evidence over the last decade to change my view that the civil liberties hysteria over the Patriot Act was fantastically overblown,” Heather Mac Donald of the think tank Manhattan Institute told the First Amendment Center Online. “Americans continue to enthusiastically give away far vaster swathes of their personal information in the hope of internet celebrity, and companies continue to aggregate and analyze information on consumers’ behavior in far great amounts, than the federal government collects and analyses.”

The Patriot Act affected numerous constitutional provisions. Many would argue that the law’s most tangible impact has been on the Fourth Amendment, which protects individuals from unreasonable searches and seizures. As the ACLU mentions in its “Reclaiming Patriotism” report, the law “eroded our most basic right — the freedom from unwarranted government intrusion into our private lives.” This intrusion often takes place in the form of surveillance.

But several provisions of the Patriot Act also directly implicate First Amendment freedoms. They include:

  • Section 805(a)(2)(B): This provision broadened the definition in federal law of providing “material support or resources” to terrorist organizations. The provision added “expert assistance or advice” to the definition of “material support” to terrorists.
  • Section 215: Enables government officials to obtain “any tangible things,” which can include library records, health-care records, logs of Internet service providers and other documents and papers.
  • Section 505: Expanded the FBI’s authority to issue National Security Letters demanding customer records from businesses.

All three provisions have faced First Amendment challenges in the federal courts. The case involving the prohibition against material support in the form of expert advice reached all the way to the U.S. Supreme Court. The Humanitarian Law Project and its president, Ralph Fertig, challenged the law, contending that it infringed on their First Amendment right to assist the Kurdistan Workers’ Party in Turkey by teaching the group how to file petitions with the United Nations. The party has been designated a terrorist group by the United States.

In Holder v. Humanitarian Law Project the high court rejected First Amendment and other constitutional challenges to the provision by a 6-3 vote. The Court reasoned that the government can prohibit all aid to designated terrorist groups, even if the support consists of training and advice on peaceful and legal activities.

In an e-mail response to the First Amendment Center Online, Fertig called the Court’s ruling “earth-shattering,” adding: “The distortion of standards for strict scrutiny to muzzle free speech brings shame upon the Court.”

The lawyer who argued before the Court on behalf of the Humanitarian Law Project, Georgetown law professor David Cole, told the First Amendment Center Online, “I think the material support law is the principal incursion on the First Amendment, although the resurrection and expansion of ideological exclusion and deportation (from the United States) in the Patriot Act also raises First Amendment concerns.”

In a blog for the American Constitution Society, Cole writes that the decision means that “we now inhabit a world in which it is a crime to advocate for peace if the government disapproves of the group to whom you are speaking.”

Sections 215 and 505 also faced free-speech challenges in court. Critics charged that Section 215 represented an unprecedented gag order. It prohibited librarians who receive a request from the FBI from ever disclosing they had received such a request. The ACLU eventually dropped its suit in 2006  after Congress revised the law in the USA Patriot Act Improvements and Reauthorization Act.

Litigation continued on the national security letter provision. In December 2008, the 2nd U.S. Circuit Court of Appeals in Doe v. Mukasey ruled that the FBI, when it demands secrecy from Internet service providers who give authorities private information on their customers, must seek a federal court’s review. The ruling was a partial victory for the government.

These disputes over various sections of the Patriot Act show that the law certainly affects First Amendment freedoms. People disagree over whether the law fundamentally altered the balance between security and freedom of speech.

Many contend that the Patriot Act still represents an abuse of government authority. The debate continues to this day. In May 2011, Congress voted to extend and President Barack Obama signed into law extensions of several Patriot Act provisions.

The debate over the law and its extensions will continue, as Americans continue to struggle with how to protect both liberty and security.

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