The threat of war with France hung over the newly-formed United States of America when John Adams signed the Sedition Act on July 14, 1798. This law declared that treasonable activity, including the publication of "any false, scandalous and malicious writing," was a high misdemeanor, punishable by fine and imprisonment.
As we look backward from our 21st century perch, we are puzzled how such a blatantly unconstitutional law could have passed. Doesn’t the First Amendment to the Constitution specifically state Congress shall make no law “abridging the freedom of speech, or of the press”? How could those who had so recently fought for liberty disregard this fundamental right?
Fear makes people behave in irrational ways and, unfortunately, fear is often used as an excuse to circumvent the Constitution and the natural rights its authors sought to protect through the rule of law. Shortly after the attacks of September 11, 2001 a piece of legislation easily passed into law and remains there still, with little modification of its unconstitutional provisions. That law is known as the USA PATRIOT Act and it has changed Americans’ relationships with law enforcement and government officials in countless ways. If Osama Bin Laden’s purpose in attacking us was to fundamentally change American society, the PATRIOT Act helped him succeed beyond his wildest dreams.
Many of the controversial intelligence gathering and law enforcement features of the PATRIOT Act are not significantly different from methods that have been used for decades. The troubling aspects have to do with the expansion of powers and reduction of accountability and oversight. The use of National Security Letters, or NSLs, is a good example.
An NSL is a letter to a particular entity or organization, such as a telecommunications company or financial institution, demanding the records and data pertaining to individuals. No judicial oversight or permission is required, as is the case with traditional search warrants used in law enforcement, and the writer of an NSL does not have to justify his or her suspicions. NSL’s can request information such as financial transaction records or email addresses mailed to and from, and they also contain gag orders which prevent institutional officers from alerting their clients to the government’s interest in their financial or communication affairs.
Though some attempts have been made to curb NSLs, their use remains essentially unchecked. A congressional audit concluded hundreds of thousands of NSLs have been issued since 2001. Their use has not been well monitored and the private information they revealed, most of it immaterial to any national security concerns, is kept on file.
“Well, so what?” many ask. “It shouldn’t be a problem if you’re innocent and have nothing to hide.” But the Founders knew the fickle nature of government and its officers. They had seen abuses of power and crafted the Bill of Rights as a charter of negative rights to prevent the government from “changing its mind” about which actions or thoughts were permitted and which were not. The Fourth Amendment, which guarantees “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . .” was a direct response to legal instruments similar to NSLs. In the mid-1700s the British crown employed “Writs of Assistance” to justify random searches for smuggled goods in colonists’ homes. James Otis, who as Advocate General was supposed to represent the crown in its prosecution of a group of merchants found with smuggled goods through the use of Writs of Assistance, resigned his position and instead took on the merchants’ defense pro bono. Writs of Assistance, Otis said, violated one of the most cherished English rights, that of the freedom of one’s home, and were “a power that places the liberty of every man in the hands of every petty officer.”
Last month Congress passed and President Obama signed extensions of several controversial PATRIOT Act provisions that were set to expire, institutionalizing civil liberties abuses for at least another four years. Republican Senator Rand Paul, perhaps the most prominent “Tea Party” representative in Congress, put up a valiant fight against bringing the PATRIOT Act extensions up for vote in the Senate. But establishment politicians on both sides of the aisle accepted hyperbolic claims that terrorist attacks were imminent unless these provisions were renewed and once again demonstrated their contempt for our Constitution.
To their credit, all three members of Vermont’s congressional delegation voted against these extensions. And Senator Patrick Leahy, though he has voted in favor of the PATRIOT Act and its renewal in the past, has teamed up with Paul to co-sponsor an amendment to the act which would serve to monitor and curb abuses of power.
National security should be a principle duty of government but too often it is used as an excuse to sacrifice its main responsibility, that of protecting the natural rights of humankind. At a time when fear is used to political advantage far too often, Benjamin Franklin’s famous quote comes to mind: “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” If we continue to allow our government to ignore the Constitution, the document which at its core sought to restrain government and codify our natural rights to life, liberty and private property, we will get what we deserve.
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