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CIAO DATE: 02/04
The Patriot Act Under Fire
John Yoo and Eric Posner
On The Issues
December 2003
Introduction
The Patriot Act has become a magnet for claims that the government is violating our individual rights. In early December, the federal commission investigating the September 11 attacks heard testimony from several prominent law professors on the dangers of the act. Last month, Al Gore called for the act's repeal, accused the Bush administration of suspending civil liberties, and claimed that the government was using "fear as a political tool to consolidate its power and to escape any accountability for its use." Democratic front-runner Howard Dean has called the act "morally wrong," "shameful," and "unconstitutional."
Many cities have refused to assist the federal government in its implementation. Putting aside the hysterics, the worst thing about the Patriot Act is its Orwellian name. It creates no revolution in government powers, nor does it violate the Constitution. If the act marginally reduces peacetime liberties, this is a reasonable price to pay for a valuable weapon against al Qaeda, a resourceful and adaptable enemy that is skilled at escaping detection.
The Patriot Act's most controversial provisions concern electronic surveillance of individuals who threaten national security. But the act did not initiate this practice. The system of secret search and wiretap warrants, granted in a secret hearing by a group of federal judges, without notice to the target, was established twenty-five years ago by the Foreign Intelligence Surveillance Act. FISA was passed because before 1978, authorities could conduct searches to stop threats to national security without any judicial warrants at all. No court has ever found FISA to be unconstitutional, and just last year a special panel of federal appeals court judges reviewed the Patriot Act's central modification of FISA and unanimously found it constitutional.
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