It was ten years ago that President Bush signed the Patriot legislation into law. If you wanted to find a textbook example of how not to make law, review the history of this law. First, toss dozens of legal proposals together into a giant “package” and resist any effort to unpack it and hold separate votes. Second, unveil the package at the last minute so members of Congress will not have an opportunity to study it. Third, call it the “Patriot Act” so that any person voting against it will have to consider television ads declaring his/her opposition to the Patriot law. Fourth, have the Attorney General declare over and over that if the law is not enacted right away, the terrorists may well launch more 9-11 attacks. When members of Congress proposed attaching sunset provisions so that the law could go into effect, but would need reauthorization a few years later, the Bush administration fought the idea.
In the years afterward, the laws defenders like to pose the question, “Where are the abuses under this law?” Some provisions, like those pertaining to National Security Letters, made it a crime for those served with them to tell anyone else about them. That made it almost impossible to see what the FBI was doing. In today’s Washington Post, Nicholas Merrill, explains what it was like to be on the receiving end of a National Security Letter:
In 2004, it wasn’t at all clear whether the FBI would charge me with a crime for telling the ACLU about the letter, or for telling the court clerk about it when I filed my lawsuit as “John Doe.” I was unable to tell my family, friends, colleagues or my company’s clients, and I had to lie about where I was going when I visited my attorneys. During that time my father was battling cancer and, in 2008, he succumbed to his illness. I was never able to tell him what I was going through.
For years, the government implausibly claimed that if I were able to identify myself as the plaintiff in the case, irreparable damage to national security would result. But I did not believe then, 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.
Tomorrow, Cato will be hosting a double book forum featuring ACLU President Susan Herman and bestselling author David Shipler. Patriot Act issues will come up.