Contesting the USA Patriot Act

Just months after the release of the U.S. Senate report on torture, the precarious balance between national security and civil liberties has made headlines once again. This time, however, the news is not replete with grim details about how the government has undermined constitutional freedoms and democratic principles, as has typically been the case of late, but rather paints a more hopeful picture of restrained executive powers in coming years. Two stories stand out for their exemplary checks on authority.

The first is the bipartisan push in Congress to overhaul parts of the USA Patriot Act, hastily passed in the aftermath of 9/11. After more than a decade of illiberal state surveillance and spying on the American public (to say nothing of global activities) in the “war on terror,” there has been increasing support, across the aisle, for legislative reform. Identical bills in the House and Senate were introduced and debated in recent weeks, both of which were intended to rein in the government’s mass data collection programs of the National Security Agency (NSA). In early June, Congressional leaders passed the legislation, revealingly called the USA Freedom Act, subjecting the NSA to external scrutiny by civil liberties experts and the warrant court created through the Foreign Intelligence Surveillance Act of 1978 (FISA).

But criticism of rampant government intelligence-gathering has not been limited to Congress; the courts have also weighed in on the issue. On May 7, a three-judge panel for a federal appeals court determined, largely in line with prevailing congressional views on the subject, that the NSA’s telephone metadata collection efforts are illegal. Despite executive leaders’ attempts to legitimate these measures through direct reference to the USA Patriot Act, the judges ruled that the act does not support the extensive actions taken by the NSA.

So far, so good. Both of these moves are undoubtedly steps in the right direction. Congressional and judicial efforts to limit executive authority are laudatory, if long overdue. Nevertheless, it is important to step back and look more critically at what effect, if any, these actions may have on government security practices. Placing these stories within a wider history of U.S. emergency powers shows that they are unlikely to inspire any great change in crisis governance in the future and that more transformative steps must be taken.

Bringing Back FISA

Let’s begin with Congress’ attempt to bring back FISA as a seminal check against unlawful surveillance. The newly passed legislation aims to revive FISA standards, which were first introduced in 1978, after the Church Committee investigations into executive abuses of power, to provide oversight in matters of intelligence gathering on the American public. In particular, the USA Freedom Act transfers data storage responsibilities to private companies, as opposed to the NSA, and requires government officials to receive prior approval from the FISA court to access this information. This mandate promises to restore a system of checks and balances against government spying that has been all but abandoned in the war on terror.

Following the terrorist attacks on 9/11, FISA was significantly revised by the USA Patriot Act. The Bush administration’s advisors in the Office of Legal Counsel (namely, Jay Bybee, Robert Delahunty, Patrick Philbin, and John Yoo), deemed the pre-existing safeguards against intrusive government actions laid out by FISA obsolete, slow, and ineffective for the new threat of terrorism (see, e.g., John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11). In an effort to modernize these apparent restrictions, they codified an alternate understanding of the Fourth Amendment search and seizure provision in the USA Patriot Act. This act updated FISA warrant requirements and relaxed the legal standards for intelligence gathering. Subsequent to these legal changes, the NSA was tasked with a comprehensive assignment to gather and store copious amounts of electronic data—from emails and telephone calls to Facebook and Twitter posts—all without warrants from the FISA court.

Critics have long condemned these measures and the unprecedented legislation designed to legitimate them. Many civil rights advocates and lawyers insist that a return to FISA would alleviate the problems witnessed after 9/11. In their book Unchecked and Unbalanced, for example, liberal lawyers Frederick Schwarz and Aziz Huq lament that without FISA warrant limitations, there has been virtually no guarantee that the NSA and other agencies will minimize privacy violations (see in particular pages 129-131). In gathering and storing metadata indiscriminately, they argue, the government has unavoidably accessed personal information about the American people that is irrelevant to the fight against terrorism. There is also no assurance that the intelligence will be used solely for national security purposes. Warrantless surveillance is easily abused by officials in criminal investigations and has often led to the interrogation of non-threatening citizens.

Such concerns lie at the heart of the recent congressional move to support the revival of FISA standards through the USA Freedom Act. Yet in looking at the historical role of FISA, it remains unclear how it could actually serve to curb executive abuses of power. The FISA court’s record over the several decades that it has been active is abysmal and offers little hope as an effective limit on unlawful surveillance. Of the roughly 34,000 warrant requests submitted to the court, about 500 have been modified and only a dozen denied outright. And even when the court does deny a request, intelligence agencies and government officials have recourse to a FISA appeals court. Thus, there is little assurance that bolstering the FISA court would have the effect desired by congressional leaders—specifically, to strike a more appropriate balance between liberty and security. If virtually every warrant is accepted by the court, we would fare no better with traditional FISA restraints than with the system we currently have in place, however problematic it may be.

Emergency Measures as Extra-Constitutional

This leads me to the second development in recent weeks, whereby federal judges deemed NSA telephone data gathering illegal under the USA Patriot Act. A common trope after 9/11—and, indeed, in almost every period of national emergency —has been that the Constitution is not a suicide pact, that it may be necessary to suspend the normal legal framework to address the threat of terrorism. Many government officials and advisers have employed this rhetoric to legitimate widespread expansions in executive authority following 9/11. In the words of conservative legal scholar Richard Posner, for instance, “Constitutional law is intended to be a loose garment; if it binds too tightly, it will not be adaptable to changing circumstances and will leave too little room for the play of democratic forces” (pg 7-8).

By contrast to this narrative, many renowned liberal jurists and critics, such as Georgetown University law professor David Cole , scholar Louis Fisher, ACLU president Susan Herman, and New York University law professor Stephen Holmes, have maintained that emergency measures that undermine civil liberties are in fact extra-constitutional. The liberal constitutional system, in their eyes, provides a rigid boundary to executive powers at all times, one that has been consistently dismantled after 9/11. As Louis Fisher cogently puts it, the official means of justifying the war on terror have essentially “[r]ejected binding legal obligations, pursuant to treaty commitments, and replaced them with a unilateral administration policy that could be altered, modified, or rescinded whenever executive officials chose to”(pg 217).

The latest federal ruling stems largely from this critical perspective. Constitutional procedures like the separation of powers were intended as a system of checks and balances to guarantee that the executive branch remains constrained by congressional and judicial oversight. With the power of judicial review, courts have the responsibility to interpret the legality of executive practices, including not only domestic surveillance but also the extraordinary rendition, indefinite detention, and torture of terrorist suspects. What the recent court decision demonstrates, according to proponents, is that these constitutional restraints are still working to some effect.

However, history shows that constitutional restraints are not as enduring as one might expect. It is not merely in our current period that the separation of powers has been undermined. In his recent book The Emergency State, journalist David Unger details how time and time again, Congress and the judiciary have deferred to the executive in the face of national security threats over the past century. Total mobilization for World War I prompted vast encroachments on the liberties of immigrants, industrial workers, and war detractors. In a similar fashion, following the attacks on Pearl Harbor in December 1941, the Franklin D. Roosevelt administration forced roughly 120,000 citizens and foreigners of Japanese descent into internment camps. And throughout the Cold War, leaders surveilled and persecuted alleged communists, draft dodgers, anti-war protesters, and radicals.

What is worse, far from being suspensions of normal legality, executive emergency powers for heightened surveillance and intelligence gathering in each of these periods, as well as in the war on terror, have been delegated by Congress and condoned by the Supreme Court (See Mark Neocleous, Critique of Security). It is only when the emergency subsides that traditional checks against executive authority have been returned—if at all. Oftentimes, these powers remain in effect even after the specific threat dissipates, either in the executive institutions built to manage emergencies or in the emergency legislation that can be called into action at later times.

Too Little, Too Late

Taken together, it seems to me that recent actions taken by Congress and the courts to restrain the executive are too little, too late, to make a permanent mark on the exercise of emergency powers in the U.S. While they represent important steps towards rolling back some of the post-9/11 authorities and practices, they do not address the deeper, and more problematic, role of the executive in moments of crisis. Not only is it assumed that the executive should be given expanded authorities at these times; the institutional structure of the government has also been permanently transformed through such measures, giving the president autonomy to decide when an emergency exists and what security practices are legitimate.

With these historical developments in mind, the critical task should not simply be to demand that traditional checks and balances resume once the direct crisis period ends, as is the case in the congressional and judicial moves to contest the USA Patriot Act. This is only a temporary fix for what has become a long-term problem. If another emergency were to strike—whether due to a terrorist attack or an epidemic or a natural disaster—there are no institutional resources currently in place to ensure that the executive remains limited. Instead of pursuing legal remedies after the fact, it is essential to begin dismantling the current government system of executive self-rule, which not only enables illiberal security practices but, worse, undermines the democratic principle of accountability to the American people.

Further Reading

Image Credit: Ian Sane via flickr

About The Author

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Ph.D. Candidate

Tyler is a Ph.D. Candidate at the University of Southern California. He is currently working on a dissertation project related to the historical dimensions of emergency powers in the U.S., particularly during the Franklin D. Roosevelt administration (1933-1945).