Timothy Edgar
Legislative Counsel, American Civil Liberties Union
Written for The CQ Researcher, October 2003

Inevitable abuse — by this administration or the next — is why the opposition to Patriot Act powers can't easily be pigeonholed with traditional labels. Groups like the American Conservative Union and the Free Congress Foundation fear a partisan Democrat could misuse its powers to investigate gun rights or anti-abortion activists.

Members of Congress feared the Patriot Act was really just a prosecutor's wish list, not limited to terrorism. They were right. In touting Patriot Act “successes,” the government has often pointed to garden-variety cases such as drugs and fraud. Congress agreed to the Patriot Act, despite misgivings, because Attorney General John Ashcroft said it was vitally needed to prevent terrorism. But the ink was not yet dry on the act when the Department of Justice (DoJ) began training agents to use their new powers in ordinary criminal cases.

In June 2003, DoJ's own inspector general found serious flaws in the government's treatment of hundreds of people detained after 9/11. Many detainees languished incommunicado for months until they were finally cleared. The effect of the policy was to evade the safeguards incorporated in the never-used detention provision of the Patriot Act — a painstaking compromise hammered out after Congress rejected the administration's call for indefinite detention without judicial review.

Responding to librarians' concerns that the Patriot Act could be used to monitor the records of Americans' reading habits, Ashcroft declassified all the records orders issued under one part of the act — which turned out to be zero. He sidestepped whether other Patriot Act powers are being used to monitor Americans. The American Civil Liberties Union (ACLU) has obtained pages of blacked-out lists of these orders under the Freedom of Information Act. What types of records? Unfortunately, that remains classified.

The American public is skeptical of the Patriot Act. More than 180 local governments have urged a rollback of its expansive powers. And, in a recent poll, more than two-thirds of the respondents agreed that, whether or not civil liberties have been abused already, the government's overbroad powers will be abused at some point.

The Patriot Act contains many appropriate provisions, like those that provide more security along the Northern border and encourage hiring translators in national security positions. However, some of its expansive powers tempt federal agents to operate outside the bounds of our democratic traditions.

To keep America safe and free, some parts of the Patriot Act must be narrowed.

Paul Rosenzweig
Senior Fellow, Heritage Foundation
Adjunct Professor of Law, George Mason University, Written for The CQ Researcher, October 2003

How ironic that the war on terrorism — meant to ensure our safety — itself inspires fear in some Americans. But those fears are born largely of confusion: Critics of the Patriot Act constantly confuse potential abuse with actual abuse.

For example, one “icon” of alleged abuse — Section 215 of the act — has turned out to be nothing of the sort. For months, librarians complained that Section 215 allows the government to get the library reading lists of political opponents. From the beginning, this criticism was overwrought, at best.

It ignored the fact that library records already could be (and often had been) subpoenaed — without prior judicial approval — by grand juries investigating offenses such as organized crime and white-collar crime. It also ignored the fact that Section 215 orders are subject to prior judicial approval under a probable-cause standard already ruled constitutional by the Supreme Court.

Most instructive, though, is the simple truth that the government has never exercised its Section 215 power — not once in two years. Critics have confused the theoretical possibility of abuse with actual wrongdoing — a confusion that doesn't help the discussion.

To be sure, the possibility of abuse calls for great vigilance. But oversight, not prohibition, is the answer to potential abuse. So long as we keep an eye on law-enforcement activity, so long as the federal courts remain open and so long as the debate about governmental conduct remains vibrant, the risk of excessive encroachment on fundamental liberties is remote.

Critics of the Patriot Act err in exalting the protection of liberty as an absolute value. That vision reflects an incomplete understanding of why Americans formed a civil society. As Thomas Powers, author of Intelligence Wars: American Secret History From Hitler to Al-Qaeda, recently wrote: “In a liberal republic, liberty presupposes security; the point of security is liberty.”

Thus, government has a dual obligation: to protect civil safety and to preserve civil liberty. That goal can be achieved, but we must recognize that security need not be traded off for liberty in equal measure.

Maintaining “balance” between freedom and security is not a zero-sum game. Policy-makers must respect and defend our Constitutional liberties when they act, but they also cannot fail to act when we face a serious threat from a foreign enemy.