The end of the Patriot Act: The pendulum swings

Friday 12/06/2015
The National Security Agency (NSA) headquarters building in Fort Meade, Maryland.

Washington - Forty-five days after the September 11, 2001, at­tacks, patriotism and fear dominated the Unit­ed States. The US Con­gress reflected this mood when it passed, and President George W. Bush signed, legislation to tighten security and enhance surveillance in the United States — euphemisti­cally called the USA Patriot Act.

Security regimes of the Middle East and elsewhere felt smugly vindicated that the same United States that was criticising them for their surveillance, spying and infringing on the rights of their citizens was joining the club. They told their people — and especially their democratic opposition — that America, the paragon of democ­racy, was no different from others when faced with reality.

It was not a good time to be a democrat in the Middle East but those who truly knew the United States argued that the American system was strong enough to self-correct. If the pendulum swung very far to the right, propelled by the horror of the attacks, it eventu­ally would swing back to the cen­tre, they said.

On June 2nd, that pendulum moved towards the centre, towards a balance between security and freedoms. Congress, after a very contentious debate, voted to push the pendulum back in reaction to the revelations by former National Security Agency (NSA) contractor Edward Snowden that the US gov­ernment conducted a secret sur­veillance programme involving the collection of bulk phone records of millions of Americans.

After letting the Patriot Act ex­pire, the Senate voted 67 to 32 in favour of the USA Freedom Act, a bill that eliminates the NSA’s pro­gramme of phone record bulk col­lection and replaced it with a more restrictive measure that keeps the records in the hands of the phone companies. US President Barack Obama signed the act into law on June 3rd. Under the new law, the US government must obtain a warrant to collect phone metadata from tel­ecommunication companies.

The new law was hailed as histor­ic by some but others did thought it did not go far enough in protecting liberties. Obama formed an unu­sual alliance with House Speaker John Boehner, R-Ohio, to ensure the bill’s passage. On signing the bill, Obama declared that it would “strengthen civil liberty safeguards and provide greater public confi­dence in these programmes”.

But Senate Majority Leader Mitch McConnell, R-Ky., who tried to extend the Patriot Act or make amendments to the new bill, said he considered the new law a “step in the wrong direction”. He warned of its potential negative effects on US security, saying that it “under­mines American security by taking one more tool from our war fight­ers at exactly the wrong time”.

McConnell and other Republi­cans who opposed the new meas­ure pointed to recent arrests of people accused of trying to join the Islamic State (ISIS) and to the danger of “lone wolf” attacks in the United States. They argued that this is the time to increase security measures, not loosen them.

Civil liberty advocates argued that US security agencies had gone too far under the Patriot Act and by undermining the essence of what America is about and represents to the world threatened the United States’ future more than any po­tential terrorists.

The American Civil Liberties Un­ion (ACLU) considered the passage of the USA Freedom Act as a “mile­stone”. Jameel Jaffer, director of the ACLU’s Center for Democracy, said, “This is the most important surveillance reform bill since 1978, and its passage is an indication that Americans are no longer willing to give intelligence agencies a blank cheque.”

But he warned that “no one should mistake this bill for com­prehensive reform” because “it leaves many of the government’s most intrusive and overboard sur­veillance powers untouched”. He challenged lawmakers to address “the larger project of bringing the government’s surveillance prac­tices back in line with democratic values”.

Senator Rand Paul, R-Ky., a pres­idential candidate for 2016, single-handedly blocked the re-authorisa­tion of the Patriot Act, causing it to expire. Paul emerged as a leading voice for protecting the privacy of Americans. He opposed the new bill because, he says, it did not go far enough to limit government in­trusions. Speaking on the Senate floor, Paul said. “I believe that no section of the Patriot Act should be passed unless our targets are ter­rorists and not Americans.”

The person who started this de­bate, Snowden, is living outside the United States to avoid prosecution for his disclosures. He called the new law “a historic victory” and wrote in a New York Times op-ed that “the balance of power is begin­ning to shift. We are witnessing the emergence of a post-terror genera­tion, one that rejects a worldview defined by a singular tragedy.”

Does this all mean that Septem­ber 11th and its consequences are behind America? That is hardly the case but the new law represents the beginning of an attempt to strike a balance between security and freedom.