Fears of extraordinary surveillance powers to investigate political dissent or low-level offenses have been vindicated.
The Patriot Act Gives Too Much Power to Law Enforcement
Jeffrey Rosen, a law professor at George Washington University, is the co-editor of the forthcoming book "Constitution 3.0: Freedom and Technological Change."
Updated September 8, 2011, 11:54 AM
If the Patriot Act were focused on investigating potential terrorists, rather than spying on innocent Americans, then we would still need it. Unfortunately, it was never focused on potential terrorists: many of its most controversial provisions were the same expansions of law enforcement authority that federal and state officials had sought after the Waco siege and the Oklahoma City bombing. In the 1990s, civil libertarian liberals and libertarian conservatives were able to resist this power grab; after 9/11, they were less successful.
From the beginning, Democratic and Republican critics of the Patriot Act warned that its extraordinary surveillance powers would be used to investigate political dissent or low-level offenses rather than terrorism. And their fears were soon vindicated. A 2007 report by the Inspector General of the Justice Department found “widespread and serious abuse” of authority by the F.B.I. under the Patriot Act. Many of those F.B.I. cases involved people with no clear connection to terrorism.
For the past 10 years, the Patriot Act’s critics have also made clear that their objections could be cured by amendments that limited its extraordinary surveillance powers to terrorism rather than ordinary criminal investigations. For example, when the act came up for re-authorization this year, Senator Ron Wyden, Democrat of Oregon, introduced a bill that would narrow the most controversial provision of the act, Section 215, which allows the government to seize “any tangible thing” without a warrant, from e-mails to browsing histories to library records. Wyden’s amendment would have required law enforcement officials to demonstrate that the records were connected to terrorism before seizing them. Unfortunately, President Obama, who supported a similar amendment when he was in the Senate, signed the Patriot Act re-authorization without insisting on the Wyden amendment, or on amendments proposed by two other Democratic senators, Richard Durbin of Illinois and Patrick Leahy of Vermont, which would narrow the roving wiretap authorities in the Patriot Act to terrorism investigation and increase judicial oversight.
Of course, we can’t know precisely how the Patriot Act is being used and misused: Senator Wyden has warned that a secret law allowing the White House to keep its internal interpretations of the act classified means that it is now being used to justify surveillance that goes beyond what the public believes the law allows. But as long as the Patriot Act remains focused on ordinary Americans rather than suspected terrorists, the terrorists -- if you’ll forgive the truism -- have indeed have won.