Bob Barr

Patriot Act Games
It Can Happen Here

August 19, 2003
The American Spectator

Winston Smythe approached the checkpoint, beads of sweat forming on the back of his neck. Had he removed everything from his briefcase that might reveal to roving hands and prying eyes that he was a member of the Opposition or of the National Shooting Sports Association? His latest copy of Guns and Ammo? His little plastic-pistol keychain?

Nervous was not the state of mind you wanted to be in as you approached the Transportation Security Police. Not particularly bright, they had absolute power to deny Winston the right to board an airplane. His careful planning--removing every scrap of metal from his pockets, down to the last penny--seemed to pay off. But as he passed quietly through the metal detectors, a guard pulled him aside--regulations, he told Winston, required that at least one search be underway at every checkpoint at all times; the public needed to be reminded that the TSP were serious about their work.

As he was frisked, Winston's thoughts drifted to his ride to the airport–it had been a bad day all around. While he was caught in traffic, one of the dozens of surveillance cameras that routinely photographed cars and their contents had found his. No doubt it caught the gun catalogs strewn on his passenger seat, including the one featuring several mean-looking hunting rifles similar to those Congress had recently outlawed.

Even that was just a prelude to the check-in counter, where his name popped up on some data-mining program deep within the bowels of the Transportation or Defense Department---no way of knowing which, because they all had their own pro?ling systems these days. Of course no one would tell him what the problem was--possibly there was a suspected terrorist somewhere named Win To Smen or something. It was just one of those days.

Then again, for Winston--who had always considered himself an "average" citizen, though perhaps more conservative than many--you didn't even need to buy an air ticket to have a bad day. The fact was, he didn't want to travel today--he had a court date in Baltimore, thanks to the "sneak and peek" provisions of the USA Patriot Act, passed in frantic weeks after the September 11 attacks on the Pentagon and World Trade Center. As a result, federal authorities no longer needed to provide a homeowner notice that they were executing a search warrant--for any criminal case, not just terrorism. In Winston's case, the search should have been quashed even before it began--it wasn't even his house! Now, though, not even knowing what the FBI investigators had taken--they were no longer required to leave an inventory of seized items either--he was a full-?edged defendant, though after weeks in detention without access to a lawyer and then long months on bail, he still had no idea why or for what. Indeed, probable cause for the search had not even been shown to a judge--as his lawyer explained, the evidence had been gathered for 'foreign intelligence' purposes. That Patriot Act again.

Oh well, Winston thought, such is life in the twenty-first-century America. At least we're told we're safer.

• • •

Two years have passed since the spring of 2002, when Winston's missed flight led to a missed court appearance and a cascade of even worse legal problems. But bygones should be bygones--after all, the attorney general himself had repeatedly told the American people that, thanks to vigilance and laws like the Patriot Act, the country was safer. Of course, there was no way to know whether that was true, but Winston had been willing to give the government the benefit of the doubt. Willing, that is, until the previous month, when he had been convicted of assisting a terrorist organization in a secret proceeding and had his American citizenship revoked. As he mulled over this strange turn of events from his deportation cell in Miami, his thoughts turned, as they often did now, to how things were and how things used to be.

One of the charitable organizations that Winston helped support from his comfortable but decidedly unpretentious salary was the International Shooting, Hunting, and Archery Society. Like its older and better-known cousin, the National Rifle Association, ISHAS supported not only the right to keep and bear arms, but also environmentally responsible hunting. He knew nothing of the organization's overseas activities, much less that it was peripherally involved in a nationalistic political movement on the Indian subcontinent--a movement at odds with a government that, while hardly democratic, currently enjoyed strong official U.S. government support.

Being rather naïve about such things--though he now knew that in this day and age, naïveté was a luxury that could get you in serious trouble--Winston had paid his ISHAS dues by regular check. He had regularly received its e-mail notices on his Blackberry and spoke with fellow members about upcoming meetings. What he did not know was that all this constituted "assisting a terrorist organization." Investigators had never obtained a warrant to listen in on his cell phone, or read his Blackberry messages, or for that matter shown his involvement in any way, shape, or form with the ISHAS activities abroad. They had not even publicly identified ISHAS as a terrorist organization. No matter--under what Washington wags had wryly dubbed the new Son of Patriot Act, they didn't have to. And thus he was in deep kimchee.

These two scenarios are neither wholly fictitious nor especially far-fetched. The protagonist may be borrowed from "Winston Smith," in George Orwell's 1984, but the story is based on reality--the USA Patriot Act of 2001 and the proposed Son of Patriot Act, now being debated in the Congress at the request of the Bush administration.

These are frightening laws. Left unchecked, they threaten the constitutional basis on which our society is premised: that citizens possess rights over their persons and property and that they retain those rights unless there is a sound, articulated, and specific reason for the government to take them away (i.e., probable cause of criminal activity). The Fourth Amendment's guarantee against unreasonable search and seizure will have been gutted.

Possibly the measures contained in the Patriot Act, its proposed new offspring, and numerous other official surveillance measures now in effect or being planned were, as we're told, essential responses to the terrorist attacks of September 11, 2001. Possibly they are specifically tailored to meet such threats in the future, and the best and most efficient way to minimize the likelihood of such attacks. Perhaps then one could accept some of the encroachments on civil liberties as necessary and perhaps even worthwhile. But they're not.

The terrorists who gained access to those four jetliners in the early morning of September 11, 2001, carried weapons that were already illegal on commercial aircraft. They were already in this country illegally, or had overstayed their lawful presence. Their pockets were stuffed with false identification. Their knowledge of the aircraft's performance and handling had been gathered in violation of federal law. Much of the information that could have alerted law enforcement officials to their horrendous plot was already within the possession of law enforcement and intelligence agencies. The government had sufficient lawful power to identify and stop the plotters. It failed to do so.

Yet what was the response to this tragedy? Did a single federal agency or official come before the American people and say: "We're sorry. We had the power to stop these terrorists. We had sufficient money to have done so. We simply made mistakes and errors in judgment, which will now be corrected." Not a chance.

Instead, what we saw--and I saw personally, as a member of both the House Judiciary Committee and the Government Reform Committee--was agency after agency, bureaucrat after bureaucrat come before us and say, "You [the Congress] didn't give us enough legal power or money to stop these attacks. We need more money. We need more power." But not wishing to appear soft on terrorism, the Congress--not surprisingly--gave them very nearly whatever they asked for.

And what they asked for definitely was not narrowly tailored, limited, or designed only to correct those specific provisions of existing laws that needed to be tweaked. What the bureaucrats sought--and largely got--were far-reaching powers that applied not just to antiterrorism needs but to virtually all federal criminal laws. Changes to wiretapping laws, to search and seizures, easier access to tangible evidence--the list is long and complex. In essence, the attacks of September 11 provided an excuse for the executive branch to pull off the shelf, dust off, and push into law a whole series of proposals it had sought unsuccessfully for years.

Moreover, the direction Washington is now turning--making it easier to gather evidence on everyone within our borders, in an effort to develop profiles of terrorists and identify them amid the masses of data--is not likely to be particularly successful at thwarting terrorist attacks. As the CIA itself noted in a unclassified study reportedly conducted in 2001, terrorists typically take great pains to avoid being profiled: they don't want to get caught, and in fact it is essentially impossible to profile terrorists.

The real way to catch terrorists is with better intelligence gathering, better coordination and analysis, better utilization of existing law enforcement tools, and quicker and more appropriate dissemination of that intelligence. The key word is better. With a few notable exceptions, the USA Patriot Act is a legislative grab bag that does little to encourage better law enforcement and intelligence work. Instead, we have an unprecedented expansion of federal law enforcement powers that significantly diminishes the civil liberties of American citizens, with only marginal increases in real security.

These fears are not, as some are saying, unfounded. And all I've done is scratch the surface of what is shaping up as a dramatic alteration to the very foundation of our society. The original Winston Smith was scared to death of the power of government--so we should be too. It was Benjamin Franklin, not George Orwell, who said, "They that give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." But, it could just as well have been.