Patriot Act and FISA without end?

How the Obama administration continues use of Bush-era powers to suppress legitimate debate about the needs of US national security. By Jeff Howard.

In 2004, Nicholas Merrill received a letter from the FBI. The owner of a small internet service provider, Merrill was shocked by its content. The letter demanded that Merrill hand over all the information he had on one of his clients, indicating that Merrill would be liable for criminal prosecution if he told anyone the government had approached him. Refusing to comply, Merrill contacted the American Civil Liberties Union and claimed that the letter – one of many “national security letters” authorised under the post-9/11 USA Patriot Act – violated his free speech rights under the first amendment to the US constitution.

The Facts

The idea that the Patriot Act – or, to use its official name, the “United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act” – undermines the first amendment has been a civil libertarian battle cry for a while now. Hundreds of pages in length, the law was enacted in early October 2001, as the New York Times reported, “with little debate in an atmosphere of edgy alarm, as federal law enforcement officials warned that another attack could be imminent”. While there have been numerous constitutional controversies surrounding the Act, which significantly increased the government’s powers of surveillance and criminal investigation, those concerning free speech have been among the most debated.

In the 2010 US supreme court case Holder v Humanitarian Law Project, the US supreme court assessed the constitutionality of Section 805 of the Act, which criminalises the provision of any “material support” to groups designated as terrorist organisations. The issue was that the Humanitarian Law Project, an American non-profit, wanted to provide legal guidance for Turkey’s Kurdistan Worker’s Party and the Tamil Tigers – both designated terrorist organisations. According to the Act, such “expert advice or assistance” indeed counts as “material support” – even though the Law Project’s only aim was to give advice on how the groups could better employ the peaceful channels of international human rights law to achieve their aims. The supreme court upheld Section 805 on this matter, affirming that the Humanitarian Law Project would be classified as assisting terrorists, and thus criminally liable, were it to communicate such information to them.

Many have viewed the supreme court’s affirmation of Section 805 as a great affront to the first amendment when applied in so sweeping and broad a manner. The same goes for other free speech-imperilling portions of the Act, like Section 802, which allows overly broad definitions of “terrorist group.” But at least one good thing can be said for Sections 802 and 805: they conduct business in broad daylight. Other sections of the Act – notably those under Title II, which served as modifications to the Foreign Intelligence Surveillance Act of 1978 (FISA) – are, by their nature, much less transparent. Take Section 215 which allows the FBI to seize materials that it judges would assist a terrorist investigation. The most discussed implication of this part of the Patriot Act has concerned libraries and the fact that it authorises FBI agents to demand librarians to tell them what books readers borrow and then keep quiet about it; as the New York Civil Liberties Association put it, this provision makes it a crime librarians “to safeguard your privacy or to tell you that you are under investigation”.

But librarians are only the tip of the iceberg. Section 215 permits such“national security letters” to be distributed to businesses, organisations, and individuals of all stripes – as in the case of Nicholas Merrill. Between 2003 and 2006, the FBI issued more than 192,500 letters – often issued to American citizens. Most troubling is the inclusion of a “gag order” that prohibits any recipients of the letters from telling anyone very much about their situation. It was only due to a lawsuit-avoiding settlement that Merrill was able to reveal the broad outlines of his story – and, as reported by the Washington Post, he remains subject to a threat of imprisonment if he reveals a peep of the information redacted from thousands of pages of court documents.

Importantly, this provision was not a relic of the Bush era. The Obama administration has sought to make it even easier for the FBI to distribute these letters – often without the approval of a judge. Indeed, the Obama administration appears to be as enthused about increased executive power as its predecessor. On March 5, US Attorney General Eric Holder argued that it was in certain cases perfectly permissible for the executive branch to kill US citizens without judicial oversight – a postmortem defence of the assassination of Anwar al-Awlaki – on the basis much-criticised legal reasoning. And Holder continues to support the FISA Amendments Act of 2008 which, as the Washington Post reports, enables the National Security Agency to “intercept and store 1.7 billion e-mails, phone calls and other types of communication” between the US and a foreign location every day.

The arguments

Since the Obama administration appears not so keen to take the lead on putting the first amendment first, the time has come to answer Nicholas Merrill’s plea for a public conversation on Section 215. But before that conversation is to be had, one important point must be hammered home. The question at stake is not whether the government should be able to censor private citizens when so doing would keep the nation safe. That question is much too straightforward (though the proponents of censorship often suggest that this is the question). So stated, that question concerns a clear trade-off between some free speech interest and many people’s security in a given case – say, the relatively limited free speech interest someone has in blogging about how to manufacture nerve gas in one’s kitchen, weighed against the interest in safety of others who might be harmed by a nefarious blog reader. While such a question is a worthwhile academic one, it is not at all what we are really debating. What we are debating is whether the government should be granted the power to decide secretly whether a given case counts as posing a threat to national security – and then, having secretly made such a judgement, rightly or wrongly, proceed to censor speech or written communication on its basis. We are discussing a matter of what decision-making procedure is justified, not whether it would be justified to censor free speech in some one-off, hypothetical case in which all the facts are clear. In other words: given that we, necessarily, won’t know whether the government will act sensibly or insensibly in its decisions to censor, ought we to trust it?

There are two kinds of familiar arguments that answer a resounding “no!” to this question. The first argument is that government is liable to abuse the power it is granted, making decisions that end up harming the very citizens in whose interest such powers were initially granted to protect. This certainly seems to be what Nicholas Merrill suspects: “I did not believe [in 2004], nor do I believe now, that the FBI’s gag order was motivated by legitimate national security concerns. It was motivated by a desire to insulate the FBI from public criticism and oversight.” But a second argument goes: even if government were to use its covert powers intelligently, people have a right to know about and participate in decision-making that affects them – for no other reason than they would otherwise not be respected properly as citizens and human beings whose voices matter.

It may seem that these are the two available arguments against granting government the kind of powers granted to it by Section 215 of the Patriot Act. But before we begin the debate on these terms, it is worth considering that there might be a third argument for why affording government these covert powers would be objectionable – an argument that avoids some of the weaknesses of the first two. Unlike the first argument, this fresh argument does not assume the very strong claim that government would necessarily have a malicious tendency to abuse its powers, in the normal sense of that word (taking action that it knows it does not actually have the authority, moral or legal, to take). But unlike the second argument, it does not presume that secretive government action, no matter how intelligent, would constitute a violation of people’s rights to know and to participate for the sake of knowing and participating (for surely I would happily sacrifice a bit of knowing and participating if I could be sure it would make the difference between life and death!).

On my third argument, what is wrong with Section 215’s restrictions on free speech is their cumulative effect. Without an enduringly open public discussion of the pros and cons of different counterterrorism strategies, with reference to actual cases and experiences, we are unlikely to identify accurately the best criteria for deciding what is a good national security policy and what is not. By “best criteria” I mean to include both moral considerations – an evaluation of what trade-offs are acceptable and what trade-offs aren’t, something that is best determined through democratic deliberation – and pragmatic considerations about the effectiveness of different strategies, as evaluated from outside the echo chamber of the intelligence community. According to this argument, we need not assume that a government with secretive powers will maliciously abuse its power. But given that Section 215 establishes an enduring practice according to which a relatively small group of fallible humans judge secretly what counts as a weighty national security risk and what does not, we have reason to worry that their criteria for judging may well be imperfect, and increasingly so over time. That a few select members of congress are permitted to overview the distribution of national security letters hardly suffices to establish confidence in democratic accountability.

So let’s answer Nicholas Merrill’s plea. The time to debate is now.

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Comments (1)

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  1. It is a slippery slope when the government starts using National Security laws to surveil its own people and then acting as judge and jury hands down sentences without the accused ever seeing the light of a court of law and having due process. I am concerned that overtime the lines will blur and pretty soon we will find ourselves living in an Orwellian state with Thomas Jefferson rolling over in his grave as the constitution is slowly dismantled. As Lord Acton so wisely stated, “Power corrupts and absolute power corrupts absolutely.”

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Free Speech Debate is a research project of the Dahrendorf Programme for the Study of Freedom at St Antony's College in the University of Oxford.

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