The Patriot Act debate is on–sort of. Congress has until the end of the year to decide whether to reauthorize sixteen “sunsetted” provisions of the act that would otherwise expire on December 31. It is holding hearings, and even inviting civil liberties advocates to some of them. Six states and more than 370 cities and towns have adopted resolutions condemning the act’s civil liberties abuses. Courts have declared some of its provisions unconstitutional. An impressive coalition of conservative and liberal groups, featuring the likes of former Republican Congressman Bob Barr and the ACLU’s Anthony Romero, has vowed to restore checks and balances to a law passed in haste and fear just six weeks after 9/11. And one of the most powerful lobbies in the country is on the case–librarians.
But if Patriot Act opponents are expecting great things, they will be disappointed. Many of the worst provisions of the act are not even up for discussion. The disputes regarding the few provisions that are actually in play often concern only marginal details, while skirting more fundamental issues. And the whole debate is largely a diversion, because the worst civil liberties abuses since 9/11 have been achieved without reliance on the Patriot Act, as they are based on executive initiatives that Congress has no will to challenge.
To begin to understand just how limited the Patriot Act debate is, consider that the sixteen provisions at issue probably take up no more than twenty-five of the original act’s 342 pages. Most of those sixteen provisions are now considered “noncontroversial,” and are virtually certain to be reauthorized. The real battles are likely to focus on just two sections. One, popularly known as the “libraries provision,” allows the government secretly to obtain records of any person from any business, regardless of wrongdoing; and the other authorizes secret “sneak and peek” searches of homes without promptly informing the homeowner. These two measures undoubtedly raise real concerns, but they hardly warrant the kind of mass rallying that both sides have mustered since the Patriot Act was passed.
Among the most troubling provisions not sunsetted are those on immigration. They authorize the government to deny entry to foreigners because of speech rather than actions, to deport even permanent residents who innocently supported disfavored political groups and to lock up foreign nationals without charges.
Patriot Act proponents often insist that there have been no abuses of the act, but the law’s immigration provisions have clearly been abused. In one case, the government ordered an Indian man deported for having set up a tent for religious prayer and food, simply because unnamed members of a “terrorist organization” were allegedly among those who came to services at the tent. In a case I am handling for the Center for Constitutional Rights, the government is seeking to deport two longtime permanent residents for having distributed PLO magazines in Los Angeles in the 1980s, and for having organized two Palestinian community dinners at which they raised money for humanitarian causes [see Cole, “9/11 and the LA 8,” October 27, 2003]. The government considers it irrelevant that distributing magazines and raising humanitarian aid was entirely lawful, even constitutionally protected, at the time.