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Government Relations: The USA Patriot Act
By Mark F. Smith
After winning overwhelming approval in the wake of the events of September 11, 2001, the USA Patriot Act has be-come a storm center of debate in 2003. The year opened with the revelation of a draft, nicknamed Patriot II, that strengthens and extends provisions of the current law, but opposition grew during the year. Proponents of the original act claim that it is necessary to protect national security, but opponents counter that the act itself takes away fundamental American rights. Three states and over 150 municipalities have officially condemned provisions of the law, countless organizations have attacked sections of the legislation, and at least one lawsuit is pending. (The AAUP assesses the impact of the USA Patriot Act on higher education in "Academic Freedom and National Security in a Time of Crisis," published in this issue of Academe.)
In March 2003, Representative Bernie Sanders of Vermont introduced the Freedom to Read Protection Act, the first bill to limit the act. This bill would exempt bookstores and libraries from the provisions allowing law-enforcement agencies to compel release of lists of books purchased or borrowed by individuals in the course of an "authorized investigation . . . of domestic or international terrorism." The AAUP has strongly endorsed this legislation, believing that the freedom to read is fundamental to academic freedom. This legislation, along with related bills in the Senate, will protect legitimate national security concerns while maintaining the nation's traditional privacy policies for bookstore and library patrons.
In July, the House of Representatives voted 309 to 118 to bar enforcement of so-called sneak-and-peek warrants. These warrants allow law-enforcement agencies to conduct a search without informing the subject. Section 213 of the USA Patriot Act broadened the grounds under which courts could authorize such warrants. Only a procedural mix-up prevented a vote on the Freedom to Read Protection Act during the same debate. The strength of the House opposition to the warrants indicates a gulf between Congress and the administration on this issue. An administration supporter publicly conceded "that the Department of Justice is AWOL on this issue."
This gulf has sparked several efforts by the Justice Department to defend the existing law, and to promote a series of amendments designed to extend its provisions. Some of these grow out of the Patriot II draft leaked early in the year, but the Justice Department quickly disowned the proposed amendments after media exposure and congressional criticism. The new proposals, now named the "Victory Act," drew partisan controversy and attacks from Democratic presidential candidates even before they became public. In response, Attorney General John Ashcroft conducted a highly publicized "Victory Tour" of battleground states to promote the changes, and the Justice Department unveiled a Web site <http://www.lifeandliberty.gov> that claims that the "government's success in preventing another catastrophic attack on the American homeland since September 11, 2001, would have been much more difficult, if not impossible, without the USA Patriot Act."
President Bush used the second anniversary of the September 11 attacks to call specifically for an extension of the Patriot Act. In addition to applying the death penalty to more terrorism cases and reducing the opportunity for bail for suspected terrorists, the president called for authorizing "administrative subpoenas" in terrorism cases. Administrative subpoenas would allow law-enforcement agencies to bypass normal judicial procedures for approval. That would allow investigations to proceed more broadly, and provide additional protection for authorities not to disclose those investigations. The provision was in an early version of the original law, but removed in negotiations between the House and the Senate.
Despite this summer's House vote barring enforcement of "sneak-and-peek" warrants, the administration seems determined to increase Justice Department powers under the USA Patriot Act. In national security debates, an inherent tension exists between security and individual rights. This administration has clearly chosen to privilege security, which it cloaks in the name of patriotism. In light of this choice, Samuel Johnson's after-dinner quip about "patriotism being the last refuge of a scoundrel" springs to mind. It may be more pertinent to remember what Johnson wrote in his essay "The Patriot" in 1774: "He that wishes to see his country robbed of its rights cannot be a patriot."
Mark Smith is AAUP director of government relations.
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