Answers Lie In Constitution
by Chip Duncan

In the recent debate for Wisconsin's U.S. Senate seat, Republican challenger Tim Michels expressed his support for the USA PATRIOT Act. Yet when questioned further, Michels admitted he'd not read the nearly 250 page document. Well, Mr. Michels, join the club. What club you say? The United States Senate.

On October 26th, 2001 the Senate voted an overwhelming 98-1 in support of the USA PATRIOT Act. Criticism of those favoring the Act revealed that many in the senate had not read it before making their vote. And perhaps worse yet, there was no significant debate on legislation many believe has changed the fundamental liberties granted to American citizens in the Bill of Rights.

Due to the efforts of Democrat Senator Russ Feingold (the lone dissenter in the Senate) and House Republican Jim Sensenbrenner, the USA PATRIOT Act has a "sunset" clause. Even in the climate of fear that swept Washington and the country after the devastating attacks of 9-11, both Feingold and Sensenbrenner understood the consequences the USA PATRIOT Act might have on civil liberties. When the debate begins again in 2005, it's unlikely that any sitting member of Congress will cast a vote without reading the bill.

As a documentary filmmaker, I found the USA PATRIOT Act one of the most interesting responses the Bush administration made to the terrorist attacks of 9-11. It's complicated, it's controversial, and it's one of the few post 9-11 security measures directed squarely at the home front. While the Justice Department argues that it's intended for use against terrorists, civil libertarians contend that it can just as easily be used against any American citizen.

It's rare that "public affairs" issues make for good television, but my colleagues and I felt the PATRIOT Act was the exception. We opted to explore the issue further in a public television documentary that's now airing nationally. History became our window to the long national debate between security and civil liberties. It's a debate that goes as far back as the founding of the Republic.

So just what is the USA PATRIOT Act? First, it's an acronym. The USA PATRIOT Act stands for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism. The Bush administration argues that the Act empowers local and federal law enforcement, streamlines government powers, and facilitates the war on terrorism by expanding the use of domestic surveillance techniques and information sharing.

Critics of the Act surfaced quickly following its passage. Their battle cry - does the end justify the means - is that the PATRIOT Act undermines the Bill of Rights and infringes upon individual privacy. Specifically, organizations such as the American Civil Liberties Union, the Bill of Rights Defense Committee and the Center for Democracy and Technology contend that the Act undermines the First and Fourth Amendments to the Constitution.

Does the end justify the means? Is the USA PATRIOT Act the lesser of two evils? If history is our guide, the answer, for many, is no.

Within seven years of passing the Bill of Rights, a Federalist dominated Congress passed the Alien and Sedition Acts. The Alien Act gave President Adams the power to imprison or deport aliens suspected of subversion. The Sedition Act made it a crime to bring false, scandalous or malicious accusations against Congress or the President. In other words, First Amendment protections of speech and the press were challenged. Several pro-Jefferson, anti-Adams journalists were tried for sedition. The public responded with overwhelming support for Jefferson who, once elected President in 1800, let the acts sunset.

The Alien and Sedition Acts were just the first of many examples of the federal government compromising civil liberties based on the argument that it was insuring better security. The long list includes Lincoln's suspension of the writ of Habeas Corpus during the Civil War; Lincoln's use of military tribunals; the Red Scare and Palmer Raids during and following World War I; Roosevelt's use of executive orders during World War II including the internment of Japanese Americans in prison camps and the establishment of an "Office of Censorship"; McCarthyism and the House Un-American Activities Committee's role in outing (often wrongly) alleged communists and or political subversives; and the FBI COINTELPRO actions to expose and neutralize political dissidents in the civil rights and anti-Vietnam War movements.

In many of the cases mentioned above, the government later overturned its policy and, in some cases, it apologized to those whose rights had been compromised.

Many proponents of the USA PATRIOT Act contend that 9-11 changed everything and that old rules no longer apply. Yet crisis has been at the heart of the debate for more than 200 years. In a process that circumvents Congress, the president often uses "executive orders" during times of crisis and war. While the USA PATRIOT Act did pass Congress, there are many other measures, especially those related to the President's ability to declare an enemy combatant, to hold military tribunals, and to detain alleged terrorists at Guantanamo Bay without charges that also contribute to the debate between security and civil liberties.

During crisis, the majority of Americans and the Supreme Court have a history of supporting (for better or worse) their President on security issues. In fact, an ABC/Washington Post poll taken within days of 9-11 indicated that 66% of Americans were willing to give up some of their civil liberties to prevent further terrorist attacks. Clearly, it is in that spirit that Congress gave its overwhelming support to President Bush with the passage of the USA PATRIOT Act. With time, however, many questions have been raised about the constitutionality of the Act. A grassroots movement against the Act has resulted in more than 350 communities and 4 states passing resolutions against the USA PATRIOT Act. The lessons of history are often at the root of the arguments made against the Act.

While support for the USA PATRIOT Act has turned surprisingly partisan during the current campaign, opposition has not. Many Republicans and Libertarians, especially those who favor less government, privacy and states rights, have expressed strong opposition. Often, these same voices question how much power the executive branch of government should have in a debate that will not soon disappear.

Regardless of whether one opts to read the USA PATRIOT Act, which is, admittedly, no walk in the park, answers to the debate lie in a different and time-tested document - the Constitution.

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Chip Duncan is an EMMY award-winning documentary filmmaker who presently resides in Wisconsin. Most of the articles that appear on this site were originally printed in Sunday editions of the Milwaukee Journal Sentinel between 2001 and 2004. To contact Chip Duncan, please click here: Chip@DuncanEntertainment.com. Your comments are welcomed.

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