The PATRIOT Act Turns 23: Constitutional Subversion Begets Political Repression

Twenty-three years ago this week, Congress passed and then-President George W. Bush signed into law the Constitutional obscenity and ironically named USA PATRIOT Act. As a result, for nearly a quarter-century, federal agents have enjoyed easy access to your phone, banking, shopping, and travel records, among other things. Moreover, there's no independently verified public evidence this sweeping surveillance law has ever stopped an attack on America. And if he wins the presidency, it will be available for Trump to use against his political enemies.

One of my favorite lines in Frank Herbert's Dune is "Fear is the mind-killer." No truer words have been spoken when it comes to the fear-driven, mindless response of the 107th Congress to the murderous attacks by Al Qaeda against America on September 11, 2001.

Without question, the Bush administration exploited the justified public outrage and fear to push through both the incredibly sweeping in scope and open-ended Authorization for the Use of Military Force (AUMF) against Al Qaeda and "associated forces"--an undefined term to this day--and the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism" (USA PATRIOT ACT) Act.

Quick action on the AUMF was understandable given that the need to destroy Al Qaeda's leadership and infrastructure was urgent and necessary. Creating giant, radically expansive surveillance powers should not have happened at all.

Rather than taking the time to actually uncover how Al Qaeda had managed to pull off its multi-target surprise attack, Congress gave into to the all-to-common impulse House and Senate members feel when confronted with a national security crisis: do something--even if it means doing something in the absence of any facts to justify the chosen course of action.

It would not be until months later that the House and Senate Intelligence Committees would establish the Congressional Joint Inquiry (CJI) to investigate Al Qaeda's attacks, and it would not be until 14 months after the 9/11 attacks that the CJI would publish its report.

That report showed clearly that it was not Osama bin Laden's brilliance that allowed his 19 suicide hijackers to succeed in killing nearly 3000 Americans. Instead, it was the incompetence of the U.S. intelligence and law enforcement communities in the months before the attacks that was the real reason for the massive loss of life.

The failure of the CIA to share critical data with the FBI about two of the future hijackers was a major feature of the report. The roots of that failure and many others was the subject of the subsequent 9/11 Commission Report, published in July 2004.

Both of those reports showed beyond all doubt that it was the failure of the FBI, CIA, and NSA to share existing intelligence among themselves that made the attacks possible--not a lack of intelligence collection against Al Qaeda prior to 9/11.

Those reports should've led Congress to completely reexamine the claims made in favor of the PATRIOT Act's passage in the first place, especially after the New York Times revealed in December 2005 that President Bush had allowed NSA to spy on Americans' communications en masse by bypassing the Foreign Intelligence Surveillance Court (FISC), the body set up to review the government's requests for foreign target-related wiretaps under the 1978 Foreign Intelligence Surveillance Act (FISA).

Indeed, FISA's text was explicit that it was the "sole means" of conducting foreign communications intercepts and that any such collection that would ensnare the communications of Americans required a probable cause-based warrant per the Fourth Amendment to the Constitution. The program revealed by the Times, which the Bush administration referred to publicly as the "President's Surveillance Program" but which was actually code named STELLAR WIND, was in clear violation of FISA.

Bush and his key subordinates at the Departments of Justice and Defense should all have been prosecuted for breaking the law in this way. Instead, Congress spent over two years trying to make the unconstitutional STELLAR WIND program pass legal muster. The ultimate result was the FISA Amendments Act, the law renewed--in yet again expanded form--this past April.

As the ACLU noted years ago, in 2010 alone PATRIOT Act "sneak and peek" searches were used over 90% of the time for drug-related or other cases, and in less than 1% of the time in actual terrorism cases--the stated rationale for including Sec. 213 (the "sneak and peak" power) in the PATRIOT Act in the first place.

These examples of Congress and the courts either failing to rein in or actively enabling Executive branch power grabs in the name of "national security" have already caused real harm to real people in the post-9/11 era. Oregon lawyer and Muslim convert Brandon Mayfield is just one of them.

Now just imagine a second Trump term in which PATRIOT Act "sneak and peek" searches are used to gather information on Trump's political enemies. And what if Trump loyalist FBI agents didn't simply covertly search his political enemies’ offices or homes, but actively planted manufactured evidence of crimes?

Even if the victim was able to eventually prove entrapment and false arrest, the legal bills to defend oneself against such charges could bankrupt the target--a perfect example of "the process is the punishment" legal phenomenon. And demanding investigations of his political opponents is precisely what Trump did the first time around. If he retakes the White House next month, you can count on him reviving the practice at scale.

The best way to prevent from happening is to keep him out of office. On November 5, vote for Kamala Harris for president.

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