It has been a unique time in American history, these last seven days. As the anniversary of Sept. 11, approached and passed most of the nation was in a state of somber reflection. But, as names were read, bells tolled and tears were shed, little was being said over another loss.
All across the country, in the biggest cities and smallest towns, civil libertarians and every day citizens complained about almost nothing being said in the swath of remembrances about the loss of civil liberties, one of the first casualties at the start of the war on terror.
“Today our civil rights are at a low point,” said well known Denver defense attorney David Lane. “Every single incursion into our civil rights and civil liberties has been justified in the name of security,” he said, his voice doused in outrage over what he called the government’s abuse of authority.
Like many others, Lane is angry about the government’s conscious abandonment of individual rights in fighting crime in a post-9/11 world. “If you use the wrong word in a private conversation,” Lane said, you’re subject to official government scrutiny. “There is an ease with which the government can spy on people that it’s frightening.”
Lane and others like him point specifically to the The Patriot Act, an immediate legislative reaction following the 9/11 attacks. The law gave the government a nearly blank check to surveil Americans. Today it can read personal emails, monitor phone calls and records and peruse personal information without warrants all under the uniform justification of monitoring “communications between potential terrorists.”
The new law passed overwhelmingly shortly after 9/11 by a vote of 357-66 in the House and 98-1 in the Senate. Wisconsin’s Sen. Russ Feingold cast the lone dissenting vote. Congress has subsequently reauthorized most provisions of the measure, which also allows spying without warrants on U.S. citizens.
One example, Lane said, is the government’s clandestine use of global positioning systems (GPS) to track individuals who have not yet been charged with a crime. Police can track a person’s movement via GPS units secretly attached to a suspect’s car. The Denver attorney says the practice smacks of George Orwell’s bleak but potentially prophetic “1984,” a book in which he warns of an omnipresent ‘big brother’ who is aware of nearly every movement of its citizens.
Two separate courts have ruled that the government’s actions using GPS tracking devices violate the Fourth Amendment, which protects against “unreasonable searches and seizures.” The Supreme Court takes up the issue when it convenes in November.
In the United States v. Jones, the government will defend the use of electronic tracking without warrants. The high court will look closely at the way authorities exercise prerogatives against individuals who have not yet been charged with a crime or who may not even have committed one.
But in a post-9/11 world there is a place for a Patriot Act, David Kopel says, Research Director for the Golden-based Independence Institute, a conservative leaning think tank. Refining “particular provisions” of the law, Kopel said, might be a good first step. “We’ve seen some really bad judgment on things that have nothing to do with terrorism,” he said. But, the law may have been inevitable. Expanding its secret surveillance has been on the FBI’s “wish list,” Kopel said.
The Libertarian spokesman believes that the government has abused its power post 9/11, but says that doesn’t mean a wholesale repeal of the legislation. “The Patriot Act has a lot of useful things in it,” Kopel said. But it should not be used to go after “food stamp abuse.”
But others, including Denver attorney Ed Raney, say if the government wants, it can use the Patriot Act to justify anything it wants under the guise of national security. “When you have a traumatic event that hits a national psyche,” he said, “you can expect people to react in ways that are not necessarily the most reflective of their values.”
Specifically, Raney is speaking about people who remain silent to things like opened-ended detainment of American citizens by authorities. “We have not dealt with this concept of indefinite detention when someone is taken into military custody and is not brought into some kind of adjudication.”
The Patriot Act has provisions for undocumented immigrants. Under the law, “some of the actions that normally would have been considered unacceptable are now permissible,” says the official Immigration and Naturalization web page. “Entering and searching anyone’s home” without warrants or notification is now OK if terrorism is suspected. Additionally, the owners or tenants of searched properties don’t have to be told of police action for up to seven days after the actual search.
Indefinite detention of undocumented immigrants along with immediate deportation is also authorized under the act. Thousands of undocumented immigrants have been deported, most to Mexico, since it went into effect nearly a decade ago.
Whether it would have changed anything or not, Raney believes the media dropped the ball by not more closely examining the fine print of the act. “Political passions and fear took over,” he said. When the act sailed through Congress, Raney said, the media took the day off.
And while he’s generally disappointed with the media in the post-9/11 era, he is encouraged that it did its job in other instances, including exposing the atrocities of Abu Ghraib. At Abu Ghraib, an Iraqi prison for suspected Al Qaeda or insurgents, American soldiers routinely violated protocol by grossly mistreating prisoners. Several were subsequently tried by military courts and sent to prison.
The lack of public outcry against the more controversial provisions of the Patriot Act reflects a concession of basic civil rights to authorities, Lane said. “It’s unfortunate, in my view, that many people are willing to give up civil liberties for the perception of security.”
But Kopel believes that the Patriot Act, for the most part, is the country’s new normal. “A more realistic goal would be to refine particular provisions,” he said. But since President Obama, who once campaigned against it, has done very little to oppose it or to even speak out about it, it likely is here to stay.