NEWS ANALYSIS: Patriot Act expansion raises questions


A woman, yearning to be with her boyfriend, plants threatening notes on a cruise ship. Her goal is not to harm. She poses no physical threat to the passengers on the ship. She is attempting to bring a quick end to a family cruise so she can return to the boyfriend. Because of her actions she is prosecuted, and, under the provisions of the Patriot Act, is sentenced to two years in prison. Is this the kind of “terrorist activity” that the Patriot Act was meant to address?

Recent reports suggest that law enforcement has begun using the Patriot Act to prosecute crimes that by any definition do not fall under the category of terrorism. Yet John Ashcroft has been making speeches around the country, trying to gather support for the Patriot Act as a necessary tool for fighting terrorism, with scant mention of other crimes. Department of Justice officials speak glowingly of the Patriot Act’s help in fighting terrorists, but fail to mention its usefulness in prosecuting non-terrorism cases. Perhaps this is a good thing, perhaps it is not, but it is a debate that has yet to reach mainstream America.

In July, the American Civil Liberties Union issued a report criticizing the Department of Justice for the way in which it represented the provisions of the Patriot Act. The report, “Seeking Truth From Justice – PATRIOT Propaganda: The Justice Department’s Campaign to Mislead the Public About the USA PATRIOT Act” alleges misrepresentations by Department of Justice officials as to the Act’s scope and power. The ACLU and other groups have been criticizing the Patriot Act since before its inception as law that erodes civil liberties. Danny Glover spoke here at Harvard Law School just weeks ago on the dangers of the Patriot Act. Lawsuits have been filed arguing that parts of the Patriot Act are unconstitutional and should be repealed.

Passed in response to the terrorist strikes on the World Trade Center and Pentagon, the Patriot Act contains provisions that, among other things, make wiretaps easier to obtain, searches to be done with fewer checks in place, and detention of aliens with little to no cause.

Although many provisions of the Patriot Act were enacted with “sunset” provisions in place to ensure they would last only a limited time, politicians have begun to try and remove these safeguards. President Bush, on the second anniversary of 9/11, called for an expansion of the law, asking Congress to pass expanded provisions that will “untie the hands of our law enforcement officials so they can fight and win the war against terror.”

Defenders of the law charge that the criticism is unfair, and that the law has proven itself effective. Ashcroft’s recent tour is meant to increase support for the law, and the Department of Justice has unveiled a website,, to highlight the effectiveness of the Patriot Act. Indeed, the strongest evidence supporters of the law cite is the absence of any terrorist strikes on American soil since 9/11.

Few would suggest that the events of 9/11 did not call for an examination and reconsideration of domestic law. But the struggle between civil liberties and security is not one that can be dismissed by effectiveness and lack of attacks alone. The ACLU and others have made valid points that the law is being promoted in certain ways that do not always reflect its application. Yet the Department of Justice and the Act’s supporters also make valid arguments that the new provisions have assisted in fighting crime and terrorists.

The unaddressed question is: how far will we go to be safe? Do we really want our library records being checked, our trips to the mosque or church being tracked, our phone calls monitored, all without our knowledge? Perhaps we do – but then should not the government be upfront that this is what the Act allows? And if we do – do we want such activities to be limited only to terrorism related cases, or to all criminal cases? The lack of uproar from the general public seems to indicate that, for the moment at least, Americans are fine with the extent of the Patriot Act’s implementation. But if the Act is being used in ways other than under which it was sold, then law enforcement officials need to be honest about that – and Americans need to ask themselves whether this is a road on which they are willing to travel.

Danny Glover said while here at HLS that Americans “have an opportunity, here, now,” to be part of the discourse on terrorism. As the Patriot Act begins to expand its reach beyond terrorism cases, it remains to be seen whether they will take part in that discourse.

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