Patriot Act: still problematic

I was deeply troubled by Rachel Donadio’s recent New York Times Book Review essay, “Is There Censorship?,” in which she suggests that because liberals can’t point to many concrete, deleterious effects of the Patriot Act (and other “anti-terrorism” laws and regulations), we are overreacting when we decry its far-reaching provisions.

The argument seems to be that because the country hasn’t yet slid back toward the sort of prohibitions that characterized the McCarthy Era, and because there is no demonstrable rise in overt censorship of books (e.g., the sort of treatment Lady Chatterley’s Lover received in the last century), it’s a little ridiculous to be concerned about the terms of the law.

Donadio’s reasoning is problematic, even leaving aside the likelihood that Patriot Act provisions will impact free speech. Her argument is akin to saying that laws criminalizing sodomy aren’t a big deal because they’re rarely enforced.

If a law isn’t enforced, and shouldn’t be, why not take it off the books?

Whether or not the government pushes its power to the fullest extent of a law, the terms of the law matter. The fact that the Patriot Act allows the government to monitor (without warrants) citizens’ speech and activities, including what library books they read, is troubling even if no monitoring actually occurs.

In 2003, Slate’s Dahlia Lithwick took a thoughtful look at the Act. Acknowledging that some of its provisions are “benign,” she pointed to some “truly radical” portions and said “what is most frightening about the act is exacerbated by the lack of government candor in describing its implementation.”

She went on, discussing “one of the surprising lightning rods of the Act, Section 215, which “authorizes the government to march into a library and demand a list of everyone who’s ever checked out a copy of My Secret Garden.” Lithwick noted that:

Section 215 modifies the rules on records searches. Post-Patriot Act, third-party holders of your financial, library, travel, video rental, phone, medical, church, synagogue, and mosque records can be searched without your knowledge or consent, providing the government says it’s trying to protect against terrorism.

Previously the government needed at least a warrant and probable cause to access private records. . . . Now the FBI needs only to certify to a FISA judge — (no need for evidence or probable cause) that the search protects against terrorism. The judge has no authority to reject this application. DOJ calls this ‘seeking a court order,’ but it’s much closer to a rubber stamp. Also, now the target of a search needn’t be a terror suspect herself, so long as the government’s purpose is ‘an authorized investigation . . . to protect against international terrorism.’ . . . .

The DOJ is playing [Section 215] particularly close to the vest. The act itself mandates semiannual reporting by the attorney general to Congress, but the only thing he must report is the number of applications sought and granted. Not very helpful unless that number is zero . . .

Lithwick also observed that an individual has no way of knowing whether the government has used its 215 powers to obtain information about him or her. “The person made to turn over the records is gagged and cannot disclose the search to anyone,” she said.

So there is no avenue through which an individual can find out whether the government is monitoring his or her reading habits or other personal records. Accordingly, Donadio’s contention that that the “near-paranoid” “publishers, writers, librarians, bookstore owners, readers and concerned citizens” opposing the Patriot Act are unable to “cite specific instances” in which the government is “intruding into their personal business” is specious — if not in fact disingenuous.

It smacks of the sort of blithe response you’ll sometimes hear from conservatives about government searches: “well, if you had nothing to hide, it doesn’t matter that the police searched your trunk.”

There are reasons in a free society for protections against search and seizure. These reasons were perhaps best enunciated by Benjamin Franklin, who once said said: “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty or Safety.”


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