Copyright 2006 by Tad Beckman, Harvey Mudd College, Claremont, CA 91711
Amitai Etzioni's How Patriotic is the Patriot Act? takes a "centrist" point of view in the debate over liberty and security. In selecting this book, I felt that this was the best course of action. Etzioni gets the issues out on the table; the reader can decide where to go from there.
It might be a good idea, first, to ask about the word 'patriot'. As a noun, the word usually stands for a person, "a patriot"; used as an adjective, it modifies something by suggesting that this thing has the character of a patriot. A patriot is "a person who loves his or her country, esp. one who is ready to support its freedoms and rights and to defend it against enemies or detractors." [Oxford English Dictionary] Thus, the name "Patriot Act" suggests that this legislation has the character of supporting rights and freedoms and defending the nation against our enemies. The adjective 'patriotic' functions much the same and suggests the character of the patriot; hence, Etzioni's title asks about the truth or falsehood lying in the name Patriot Act. In particular, does this legislation really support our rights and freedoms as it attempts to defend us from our enemies?
Etzioni begins his book with an unfortunate comparison between the rise of Nazism out of the Weimar Republic and the potential for loss of democratic institutions in the stress of the September 11th terrorist attacks. The rise of Nazism is a natural choice since "civil libertarians" often point to this example of the apparently easy slide from democratic institutions into totalitarianism. They use it to show how dangerous it is to limit civil rights in defensive moves.
Etzioni's comparison, on the other hand, intentionally demonstrates the opposite. The lesson he takes from it is that "democracy is endangered not when strong measures are taken to enhance safety, to protect and reassure the public, but when these measures are not taken." This, he believes, is backed up by his account of the Weimar Republic's collapse which he believes to be due to inaction. He makes this point in comparison to the evident recovery of confidence in the US after the 9/11 attacks when the US government took strong actions. The argument is a good case of "comparing apples and oranges." The fall of the Weimar Republic came out of very substantial, long-term internal tensions and breakdowns and is probably better understood in terms of Plato's analysis of how democracies decline. In contrast, since September 11th, the United States has felt deeply threatened by external forces and there were few long-term general issues regarding civil rights prior to those events. The situations are really quite different --- internal political breakdown leading to a Fascist state versus re-adjustment of civil rights under pressure from external threats. It is not at all clear that strong government action on various social issues would have saved Germany from the rise of Nazism in the last few years. The US, on the other hand, was not under significant internal stress and was simply terrorized by the threat of attacks from outside. While some of the public's recovery from fear was probably due to actions taken by government agencies, Etzioni fails to take into account the fact that some of the "recovery" was undoubtedly due to the fact that no further attacks occurred and people had a need to get back to "business as usual." This is borne out well by the behavior of airline travel in the years following. Etzioni's conclusion simply begs the whole question all over again! Most people will grant that vigorous defensive action will, indeed, reduce hysteria and calm fears. But what price are we willing to pay for this when it comes to reducing civil liberties? Worse yet, since the present administration makes every effort to keep fear of terrorism in front of the American people, one should become suspicious that fear is being used in a wide variety of ways to change government institutions as well as civil liberties --- the rapid growth in the unchecked powers of the executive, for instance.
Etzioni suggests that various government actions surrounding the Patriot Act can be divided into three groups. These are "overdue measures," "reasonable [new] measures," and "troubling measures." A fourth measure that has not yet been advanced is some kind of national identification system. Each of these is discussed thoroughly within two frameworks --- privacy and public health.
While Chapter 2 is just an overview, we can begin the discussion here. The general criterion behind what Etzioni calls "overdue measures" is the lag between changes in communication technology and the ability of intelligence and law enforcement agencies to track criminal, or potentially criminal, activity. Outside of face-to-face conversations, people have always been able to communicate via mail and telephone or telegraph. There has been a long-standing ability of law enforcement agencies to listen in on telephone conversations by installing a wire tap, but this has been regulated by requiring a court order in which justifiable suspicion must be provided to the court as a requisite. Wire taps have been issued based on specific locations and for specific purposes. They have traditionally even involved "safe guards" in which the agencies were not allowed to listen to all conversations but only to those relating to the specific purposes of the wire tap. Technological change has, of course, tremendously increased the number of ways in which people can communicate --- electronic mail, interactive Web-based sites, cellular and satellite phones, etc. While it is obvious (probably) that something must be done to enable legitimate law enforcement scrutiny into these media, it is clear that their highly un-localized character does not allow an extension of authority merely by analogy with traditional wire taps. In particular, there is no specific place where an "internet tap" can be installed. It is often difficult to scrutinize one person's e-mails without becoming entangled in e-mails belonging to other people. It is obvious that changes here, whether overdue or not, are extremely liable to invasion of privacy and limitation of civil rights.
All of this takes on an even more dangerous face when we understand (p. 33) that law enforcement in this country "has shifted focus and procedure from prosecution to prevention, from collecting information after a crime has been committed to preventing terrorist attacks from taking place." But note the lack of symmetry in this sentence! While "crime" is generalized in the first part, "preventing terrorist attacks" is used as the limited justification. In other words, the whole culture of law enforcement is being reversed on the limited justification of preventing terrorism. There is, of course, a very serious fundamental issue of liberty involved here. One thought oneself free to behave as he/she wished so long as one did not commit a crime. If a crime were committed, of course, we could all understand the need for authorities to pursue the criminal. In a situation where the authorities take crime prevention to be their mission, however, every person is a potential criminal so the authorities have a right to scrutinize everyone's activities. One must now limit his/her behavior not merely to avoid criminal acts but, much more broadly, to avoid creating any cause for suspicion. This is no longer a free society; it has become a strongly conformist society. That is, the obvious way to avoid suspicion is to "fit in" as completely as possible.
Etzioni's so-called "centrism" seems consistently more like an "apologist" position that assumes we must lose freedom in order to purchase security. While he brings up several issues that are clearly problematic, he merely refers to these as "troubling" in contrast to his other categories which are "overdue" and "reasonable." [Ah, rhetoric usually does tell us where the truth lies!] Not only are these troubling issues, but Etzioni gives us the impression that they have already been largely placed under control for the good of civil liberties. Issues relating to military tribunals and "enemy combatants" are still active even though courts have been able to challenge them in specific situations, leaving Etzioni to comment that "military tribunals should be used as sparingly as possible" --- not exactly the strong result that would protect liberties. Again, while Operation TIPS was successfully challenged where domestic spying intruded into private spaces, it remains active in "public spaces," leaving a huge issue over what is public and what is private.
Chapter 3 considers issues of privacy and security. The concept of privacy is crucial in a free society. Freedom is based on an individual's authority over his/her own actions and means that the individual is not called into account to any other authority for the actions taken. As we saw in Locke's arguments, while no one can expect to be entirely free in this sense, a society based on standing laws can grant authority for all other actions to individuals. The core of the concept of privacy lies in this fact that we do not have to account to anyone else for those actions in which we have authority. So long as we act within the law, then, whatever we do inside of our homes does not have to be explained or justified. This element of privacy is protected under Amendment IV which prohibits "unreasonable searches and seizures" of "persons, houses, papers, and effects." But privacy is also implicit in the First Amendment which provides for "the right of people peaceably to assemble;" that is, government does not have the right to scrutinize such assemblies or to demand an explanation for them. The Second Amendment prohibits quartering military in private homes and the Ninth Amendment makes it clear that an individual's authority in action is not limited by the mere failure to enumerate particulars in the Bill of Rights.
As essential to our freedom as these concessions are, the execution of law against a person's privacy and personal authority is specifically restricted to reasonable interventions by government and "reasonableness" is maintained by holding government accountable for such intrusions. Hence, notice, in the Fourth Amendment that searches and seizures must be justified by "probable cause" and must be strictly limited to specified places, persons, or things. "Probable cause" means that evidence can be provided to the court, making it probable that a crime, or crimes, is/are being committed within someone's private space.
This is where new environments of electronic communication enter the arena. There are long-standing legal means for government agencies to scrutinize suspected felons. If probable cause can be demonstrated, agencies can obtain a court order to tap a telephone line and listen in on certain conversations. During the Second World War, mail was routinely opened and sensored in order to prevent spreading critical military information. As Etzioni points out, all of this has changed now that the internet can carry information across national boundaries through interactive Web sites or e-mail and now that cellular telephones can be used virtually anywhere, without land lines, and discarded like kleenex. To make matters worse, encryption technology can render communications impossible to understand even if they can be trapped. When tracking sophisticated criminals or international terrorists, wire taps are now useless because communication no longer depends on land lines. But don't we want these new media of communication to protect our privacy? How can government agencies be granted "reasonable" access while privacy is maintained?
Most of the moves to scrutinize electronic media fall into Etzioni's category of "overdue measures" and probably for good reason. Technological change alone should not be a ground for tying the hands of legitimate law enforcement. The problem, as Etzioni well describes, however, is that the complexity of new media makes it extremely difficult to allow access and still retain legitimate privacy and accountability. The global character of new communication media along with the extreme fear of international terrorism has blurred the long-standing distinction between domestic law enforcement and foreign intelligence. Thus, while domestic law enforcement had been modernized as early as 1986 with the Electronic Communications Privacy Act and in 1999 with the Intelligence Authorization Act, the Patriot Act greatly broadened the Federal Intelligence Surveillance Act of 1978 and, in particular, blurred the division between foreign and domestic. Thus, a certain amount of domestic surveillance is permitted so long as it can be rationalized as related to foreign intelligence. But the importance of this situation to civil rights is the fact that foreign intelligence has a long-standing history of lying within executive authority only and with little balance of powers. Domestic scrutiny that can now occur under the Patriot Act and FISA can be entirely secret, is subject to notification only if collected information will be used in court against a person, and even then, in violation of Sixth Amendment rights, a person may be unable to actually see what evidence is being held against him/her on the grounds that "national security" would be compromised. Also involved are broad new powers to trap and scrutinize e-mail, including the allowance that the judge giving permission no longer has to have jurisdiction over the physical locations where the mail is actually secured. This opens up huge possibilities for abuse by law enforcement since, if they wish, they can simply find a sypathetic judge and then use his/her office for all of their orders. Equally abusive is the blurred line between "terrorism" and "criminality." If the executive authority labels someone a terrorist, there is an almost spontaneous stripping of the person's civil rights even if the person is a US citizen. The system of checks-and-balances which is responsible for maintaining freedom is breaking down under globalization.
It is well to remember that the Anti-Federalists consistently argued that the executive authority was one of the gravest dangers to liberty and they saw executive power as largely unchecked. In the post-9/11 era executive power has spiraled out of control in at least two ways. First, declaring a "war on terrorism" became a rhetorical device for giving the president war powers even though a "war on terrorism" is unlike anything that the Constitution would have recognized as meeting the definition of 'war'. Second, since the executive branch possesses almost exclusive and unchecked responsibilities for foreign relations, the threat of terrorism has been used to blurr foreign and domestic issues. The president's secret allowance of NSA scrutiny of communications within domestic boundaries is a good example. While we always hope that the Supreme Court will defend our liberty, it is worrisome that only the executive authority nominates justices and, hence, has the power of stacking the Court with justices sympathetic to its own positions.
Chapter 4 considers issues of public health and security. While Etzioni's focus is on bioterrorism, the issue of public health has been made extremely sensitive by the global transformation of world political economies. We don't really need terrorism, as such, to be terrorized by global health issues. The present concern over "bird flu" has nothing to do with terrorism. Over just the last five years, our shrinking globe has brought us SARS, West Nile Disease, and now Avian Flu. This is not going to end until all possible bio-hazards have been universalized, and it is not clear how long that will take or how many lives will be lost. [Consider the fact that the leading cause of death among Native Americans in the early period of contact with Europeans was imported diseases. Native population in California dropped from 300,000 to 30,000 in one century of contact.]
Etzioni's argument is that the government must have the power to secure public health whether the danger comes from natural or terrorist causes. Unlike localized terrorist invasions --- 9/11, suicide bombings, etc. --- bioterrorism has the potential of spreading out of control and affecting public health throughout the country, or at least in very large parts of the country. Thus, government must have considerable power to deal with such a situation, and it is obvious that civil liberties might need to be suspended. Etzioni offers four criteria that could be applied in determining the circumstances under which the government would be empowered to ignore civil liberities. It is an interesting argument since the liberties of individuals lie on one side and the common good on the other. Traditionally, we think of both being protected by our government.
It is probably an issue with which must of us will have sympathy with the government, perhaps because the personal threat seems greater than most possibilities of terrorism. At the same time, there are more well-defined signals for when a threat is present and, most important, when it has passed. Liberties that are lost within a relatively narrow time span can be restored when the threat is no longer present. Liberties that are lost to greater powers of law enforcement and intelligence authorities are, on the other hand, for less likely to be restored. [While the 9/11 catastrophy was pinned on a single terrorist, whom we have never successfully found, it remains clear that there are thousands of others of like minds and that, with contemporary means of communication and transportation, the problem of terrorism is not going to go away for decades. Liberties lost today will not be restored before cultural changes wipe out even the memory of what those liberties were.]
Chapter 5 considers the issue of national identity cards. This is an issue that has not yet been enacted and that will be extremely controversial if it comes up. Etzioni himself suggests that he does not support national identity cards as such, but the measures that he does support seem to come very close. In effect, a national identity card would be like a passport that every citizen would have to possess. What makes it controversial, in particular, is the issue of how it would be used and when it would have to be presented. At the present time, a passport is required only when traveling across our national boundaries and is not required for presentation anywhere within the country.
The issue of proving one's identity has many more dimensions than just those involving homeland security. Identity theft is becoming increasingly common and can cause considerable personal damage. Illegal entry into the country is also problematic, even when homeland security is not at risk. As Etzioni documents, there are major problems with the use of driver's licenses as our principal means of identifying people. Subordinate to licenses, there are even greater problems with birth certificates, etc. Etzioni's arguments are convincing that some order and authenticity could be brought to the entire system by standardizing license formats and criteria for awarding licenses or state IDs. Standardizing systems of record keeping for births and deaths would also go a long way in guaranteeing that only appropriate people can receive social security numbers. This, on the other hand, begins to more somewhat closer to national identification cards and one wonders how a large database of this kind might ultimately be used.
Etzioni has considerable faith that much of the data necessary for identification will move into digital storage and he is probably correct about this. Unfortunately, this opens up two new problems --- making data secure and auditing data to assure its accuracy. One of the advantages of digital identification would be the ability to prove one's identity on-line. In the end, Etzioni clearly sees the future in "biometric" data that seems to uniquely identify individuals. So far as concerns accuracy of identification, this seems non-controversial. The issue that seems problematic, however, is how and when such data will be read and what happens to the collateral data associated with any particular reading. Suppose, for example, that your biometric data is read from an ID card when you check out books at a library. The associated data is the particular library site, the time of day, and perhaps the books withdrawn. If the identity confirmation is destroyed immediately after it is obtained, there is no problem; but it is likely, the ways things go, that all of this information would go into some data bank where it might be used in inappropriate ways. Violations of personal privacy seem more than possible.
Chapter 6 deals with "nation building." This is highly relevant since, as the Bush rationalization of our invasion of Iraq migrated from discovering weapons of mass destruction to unseating an intolerable dictator to founding a democratic state in the center of the Middle East, it was nation building that became our supreme cause in Iraq. This, as Etzioni points out, is a plan that faces formidable odds of failure. First of all, historical examples of nation building have resulted in failure --- sometimes terrible failures --- all too many times. We need only think of the attempt to unify ethinic groups into the nation of Yugoslavia. Second, Iraq itself is divided into at least three sizable and largely unfriendly ethnic groups. One can speculate that these groups were effectively held together in the nation-state, Iraq, only because of the dictatorial powers wielded by Saddam. And third, it is naive to think that economic and political systems can be transplanted into a cultural context that is not already prepared for them. Traditional systems are attached to long-term cultural roots, as Dewey argued. Merely setting up the formal appearance of a democratic state, with elections and a constitution, is far removed from actually realizing a national identity and love of freedom.
The nation building issue brings us close to another way of looking at homeland security, however. While rampant "patriotism" at the time of 9/11 and afterward, prevented people from exploring the issue seriously, it is perhaps time that we can examine the role that Americans play abroad in provoking the kinds of hostility that led to 9/11 and continue to lead to security threats. Certainly, there are elements of the Patriot Act and the creation of an office of Homeland Security that are necessary for the protection of our country; however, it would seem to be foolish in the extreme to believe that self-defense is the only option available to us. We might attempt to understand other countries better and to avoid provoking their hostility. In the meantime, we might consider reinforcing the United Nations and working within the UN with other nations instead of trying to go it alone in the world. A strong defense is one thing, but being a peaceful, understanding, and helpful neighbor is also a good way to enhance your security.
Updated on March 22, 2006; click here to return to My HomePage or here to return to Course Index Page.