Constitution Daily

Smart conversation from the National Constitution Center

The PATRIOT Act and the wrongfully accused

June 7, 2011 by Dr. Steve Frank


A post I wrote recently included a bucket list of 10 constitutional issues I hoped to see resolved before Judgment Day. Among them was renewal of the USA PATRIOT Act, which can now be checked off the list.

Enacted with little debate and only one dissenting vote in the Senate six weeks after the 9/11 attacks, the PATRIOT Act is the sweeping law that expanded the government’s power to conduct antiterrorism surveillance and investigations.

Congress renewed most of the law unchanged five years later and extended it again in 2010. With little fanfare and by wide margins, the House and Senate late last month renewed critical sections of the act and a related intelligence law that were set to expire. The provisions included authority to conduct roving wiretaps and to examine business records in pursuit of terrorists.

The latest renewal reflects a broad consensus in Congress and across both the Bush and Obama administrations that in the war on terrorism, the government’s enhanced power to collect personal information and conduct secret surveillance strikes the right balance between protecting national security and safeguarding individual rights.

The rights of the people

Now comes a book whose author says: Not so fast; we should challenge that consensus.

In The Rights of the People, David Shipler a Pulitzer Prize winning author and former reporter for The New York Times, argues that the national-security measures instituted since 9/11 have eroded our civil liberties.

As he sees it, we have too complacently given up freedoms safeguarded by the Bill of Rights, especially the Fourth Amendment’s protection against “unreasonable searches and seizures.”

Our system is founded on the premise that it is far worse to convict wrongly than to fail to convict at all.

Shipler’s reporting sheds eye-opening light on the shadowy world of post-9/11 surveillance and national security investigations enabled by the PATRIOT Act and other intelligence-gathering legislation.

He indicts the government’s use of clandestine warrants authorizing stealth break-ins at homes and offices, its collection of phone and e-mail communications, and its sweeps through financial, travel and medical records as practices that deviate from constitutional principles.

In the hunt for terrorists, he says, these investigatory techniques are susceptible to error and abuse and have swept innocent victims into their nets. He cites, for example, the case of Brandon Mayfield, a law-abiding citizen from Oregon who was linked by shoddy FBI lab work to the 2004 Madrid train bombings and was jailed until Spanish authorities identified the real terrorists.

Reading about Mayfield, the pragmatist in me wished for a scale you could use to weigh the cases of rights abuses against the cases in which investigations uncovered information that foiled potential terrorist plots.

But of course there’s no way of knowing – given the secrecy involved -- how many instances would be piled on either side of the scale. And even if we could know, Shipler argues, at least one constitutional principle makes such an exercise morally moot. The Constitution, he maintains, is clear: “Our system is founded on the premise that it is far worse to convict wrongly than to fail to convict at all.”

How that principle applies to the war on terrorism is a question we should all ask ourselves.


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