Constitution Daily

Smart conversation from the National Constitution Center

USA Patriot Act: what has changed and what hasn’t

February 10, 2011 by Dr. Steve Frank


Congress’s unsuccessful attempt this week to renew key provisions of the USA Patriot Act was a reminder of how much has changed since 9/11, and how much hasn’t.

After the attacks, our attitude toward terrorism changed dramatically. Increased security measures – airport screening, domestic surveillance, monitoring of Internet activity -- have proved effective in preventing another attack.

But that hasn’t made it any easier to answer today the question we asked ourselves then: how to strike the right the balance between insuring our safety and protecting our civil liberties.

When we were writing the text for the National Constitution Center’s core exhibition in 2002, a year after the attacks, and it came time to write the 9/11 panel, the date we chose to focus on was October 25, 2001. That was the date Congress passed the Patriot Act. Here’s what we wrote:

Thursday, October 25, 2001

Terror attacks compel us to ask how we can be safe and live free

When the Twin Towers fell on September 11, we wondered if liberty in America would ever be the same. Terrorists took advantage of our freedom to commit the unthinkable. Was this an act of war? Would freedom now have to be curtailed?

Acting swiftly, President Bush has pressed for sweeping powers to meet the crisis. Today, Congress passed the USA Patriot Act, increasing the government’s law-enforcement authority to help detect future plots.

As Americans, we’re torn – as our Founders were – between a need for security and a commitment to our liberties.

Have we found the right balance?

We look to the Constitution for the answers. But the Constitution depends on us as much as we depend on it.

“Have we found the right balance?” The question is no less pertinent in 2011 than it was when it was written, nearly a decade ago.

To its ever-lasting credit, when Congress passed the Patriot Act in 2001, in the immediate aftermath of the 9/11 attacks, it was acutely aware that in the heat of the moment it might not get the answer to that question right. So it included a “sunset” provision in the legislation, requiring re-authorization of key provisions.

The vote in Congress this week was to extend through the end of the year three provisions, set to expire at the end of this month, that:

  • Authorize the FBI to use roving wiretaps on surveillance targets
  • Allow the government access to “any tangible items,” such as library records, in the course of surveillance
  • Allow for the surveillance of targets who are not connected to an identified terrorist group.

Congress may yet re-authorize those provisions. But the fact that it fell seven votes short this week in the House of Representatives demonstrated the abiding complexity of protecting both our security and our civil liberties.

What do you think? Does re-authorization of those provisions get the balance right?

Photo credit: Flickr user peasap

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