The PATRIOT Act Has Threatened Freedom for 20 Years

In passing the PATRIOT Act, Congress enacted a “solution” to preventing another 9/​11‐​like debacle without having any evidence that a lack of surveillance powers was what allowed Osama bin Laden’s suicide hijackers to succeed in killing nearly 3,000 Americans.

By Patrick G. Eddington —

It’s hard to believe that an entire generation of Americans has been born, raised and transitioned to adulthood since al-Qaida’s murderous attacks on America just over 20 years ago. Perhaps less well recognized is that same generation, and all other Americans still living, have been subjected to the most sweeping forms of surveillance in the history of the republic.

That government‐​sponsored dragnet was made possible just six weeks after the 9/11 attacks, when Congress — in an act of fear and ignorance — passed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act. The 130‐​page bill with more than 150 provisions was rushed through both chambers without any meaningful oversight or extensive hearings despite enabling the most sweeping federal surveillance powers ever.

The law allows federal law enforcement and intelligence agencies to conduct “sneak and peak” searches, get your online purchase history, access your emails and browsing history and have your bank notify the FBI if you deposit $10,000 or more into your account — in many cases all without having to go to a judge with a probable cause‐​based warrant as the Fourth Amendment requires.

In passing the PATRIOT Act, Congress enacted a “solution” to preventing another 9/11-like debacle without having any evidence that a lack of surveillance powers was what allowed Osama bin Laden’s suicide hijackers to succeed in killing nearly 3,000 Americans.

Less than a year after Congress passed the law, the first detailed investigation into the intelligence failure, known as the Congressional Joint Inquiry Report — found exactly the opposite to be the case. The CIA, FBI and NSA all had more than enough data between them to have successfully identified and stopped the attacks beforehand; they simply failed to share and act on the information.

Those findings should have led to a complete reevaluation of the need for the PATRIOT Act. Instead, the result was a mix of congressional inertia and, under pressure from civil liberties advocates, marginal changes to the law.

Resistance to the law became a recurrent theme during George W. Bush’s presidency.

When then-Attorney General John Ashcroft came to Detroit to defend the law in 2003, he got a less-than-warm welcome. The ACLU national organization and its Michigan affiliate had filed suit in federal court challenging the PATRIOT Act’s gag order provision amid charges of racial and ethnic profiling of Arab and Muslim Americans. As originally written, the law barred individuals and companies from even seeking legal advice about how to handle or even challenge PATRIOT Act-related orders served by the FBI.

Three years later, in early October 2006, Judge Denise Page Hood of the Eastern District of Michigan declared the gag order provision unconstitutional. But the victory was only temporary, as the judge’s ruling made clear that modifications made to the law meant that the broader ACLU legal challenge to the PATRIOT Act had been undermined by Congress’s having modified the gag order provision while the case was pending. Less than a month later, the ACLU declared victory on the gag order issue and dropped the case.

From a legal standpoint, they had little choice. But the decision revealed a larger problem: The fundamental lack of political power among civil liberties groups to compel Congress to repeal a law that, as time came to show, would be repeatedly abused without stopping a single terrorist attack on the country.

Indeed, just over three years after Hood’s decision, an airliner bound for Detroit was nearly brought down by Nigerian-born al-Qaida recruit Umar Farouk Abdulmutallab. No U.S. surveillance program, including the PATRIOT Act, detected the “underwear bomber” in advance.

After Edward Snowden went public with what he had learned about PATRIOT Act and related surveillance programs while a contractor at NSA, it became even clearer how vast the PATRIOT Act’s reach had become, with the phone records of millions swept up under Section 215 of the law. Subsequent Senate Judiciary Committee hearings would reveal something else: what a monumental failure the law had been.

A little over a month after Snowden’s initial revelations, Sen. Pat Leahy, D-Vermont, grilled NSA Deputy Director John Inglis about 54 alleged terrorist plots stopped by PATRIOT Act and related surveillance. In less than five minutes, Leahy demonstrated that the true number may have been zero.

Yet, even after that embarrassing episode, Leahy and his colleagues allowed the program to linger on in only slightly modified form via the USA Freedom Act in 2015. NSA finally killed the program (allegedly) in 2019, and Congress has never renewed the authority — though as Sen. Richard Burr, R-North Carolina, subsequently noted, Executive Order 12333 lets the government do pretty much the same thing without any court supervision, much less approval.

But perhaps the PATRIOT Act’s greatest legacy is that it paved the way for so many additional laws, regulations and policies that have undermined constitutional freedoms to the point that America is no longer a functioning democratic republic.

From the creation of the sprawling, privacy invading Department of Homeland Security (2002) to the passage of the FISA Amendments Act (2008, required to make portions of the previously illegal Stellarwind program legal) to the Transportation Security Agency’s (TSA) Quiet Skies passenger surveillance programs (2012) to the burgeoning use of facial recognition by law enforcement at all levels, we now live in an age where our buying habits, web browsing history, air travel records, social media posts and more can be collected, analyzed and weaponized against us — often with little or no pretext or true, valid criminal predicate.

In all the ways that matter, Americans are now viewed by their government as suspects first, citizens second. Has the “surveillance state” become an immutable part of the fabric of our social, economic and political lives?

In the wake of the attempted insurrection on Jan. 6, 2021, Rep. Rashida Tlaib, D-Detroit, sounded the alarm about allowing a further erosion of constitutional rights in the name of fighting domestic terrorism.

Tlaib and eight of the House’s most liberal members sent a letter to the leaders of both the House and Senate, Democrat and Republican, on Jan. 19, 2021, that acknowledged the gravity of the event but warned against using it as an excuse to give the FBI, CIA and NSA even more sweeping powers.

“We firmly believe that the national security and surveillance powers of the U.S. government are already too broad, undefined and unaccountable to the people,” they wrote.

Yet despite those words, neither the nine signatories to that letter nor any other House or Senate member has introduced legislation this Congress to rein in those powers that Tlaib and her colleagues so correctly described as being “too broad, undefined and unaccountable.”

Words alone will not restore the Bill of Rights to a functional state. Only dismantling the PATRIOT Act and related, failed “war on terror” policies will accomplish that goal.