In 1986, the British satire Yes, Prime Minister invented the politician’s syllogism: something must be done, this is something, therefore we must do this. In the aftermath of 9/11, termed the worst intelligence failure in modern American history, there was a decision that something had to be done, and that something ended up being one of the most far-reaching—and least debated—laws in American history. The USA Patriot (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) Act was signed into law by President George W. Bush on Oct. 26, 2001. The bill had been introduced in the House of Representatives on Oct. 23, it passed the House on Oct. 24 in a 357 to 66 vote, and then passed the Senate on Oct. 25 98 to 1.
Among the many Democrats (and almost all Republicans) who voted in favor was then-Sen. Joe Biden, who was the chairman of the Senate Foreign Relations Committee at the time. Biden not only voted for it, he ardently supported it to the point where he pointedly took credit for many of the ideas behind the bill several times in 2001 and 2002. What they ended up with was, in the words of the American Civil Liberties Union, a bill that “turns regular citizens into suspects.” Almost 20 years later, the United States stands on the precipice of making the same mistake again: sacrificing liberty in search of protection.
The Patriot Act had a number of especially controversial parts; among them were Sections 206 and 215. Section 206 authorized roving wiretaps, which meant that after getting a subpoena for a phone, that same wiretap authorization could be used for a computer. Section 215 allowed the government to ask businesses for assistance, and it was made famous when Edward Snowden leaked that this was the provision under which all Americans had their phone records collected.
Privacy violations by law enforcement can have a necessary, if debatable, purpose. But the trouble with the Patriot Act’s provisions is that they didn’t actually help tackle most terrorism. In 2015, Michael Horowitz, the inspector general of the Department of Justice, released a report where he addressed claims that the 215 authority had helped solve cases. He went so far as to say that the “agents we interviewed did not identify any major case developments that resulted from the records obtained in response to Section 215 orders.”
Since the passage of the act in 2001, parts of it have stayed, parts have changed, and parts of it have sunsetted. For instance, Section 215 was restricted in 2015’s USA Freedom Act before it expired on March 15, 2020, after Congress and the president couldn’t agree on how to extend it.
After the horrific Trump-inspired insurrection on Capitol Hill that left five dead on Jan. 6, many in the government were clear as to what they need to do next. Democratic Rep. Elissa Slotkin spoke about the need for new domestic terrorism laws—something backed by the party as a whole. President-elect Biden has also spoken about a desire to pass a new domestic terrorism law. Many of the supporters adopted the 9/11 language—that this was primarily a failure of intelligence and more intelligence laws could address it.
But this is not a problem that can be solved with more laws, because it is not a problem created by laws. In passing laws to target domestic terrorists, there is a real risk that these powers will be turned on normal civilians, as happened with the Patriot Act. Despite Bush visiting a mosque on Sept. 17, 2001, and despite the Patriot Act ostensibly being race-neutral, it has had a very clear negative impact on the lives of Arab Americans. Several Arabs and Muslims have been placed under surveillance, prosecuted, detained, and been denied admission to the United States, and community and civil rights organizations have also suffered under these laws.
The same problem exists with the no-fly list. The one the United States has today was created as part of the Terrorist Screening Center after the 9/11 attacks, and the center maintains a single unified list. However, it is based on vague criteria and has especially low thresholds for risk. There’s no way for someone to know they are on it ahead of time, and it is impossible to dispute the initial placement and difficult to get off the list. This has led to thousands of people, including infants who happen to have the same name as terrorism suspects, being wrongfully placed on the list or blocked from flying, such as the conservative journalist Stephen Hayes. The list has also been used to coerce Muslims into spying for the government—a case that the Supreme Court heard last year.
More surveillance laws is the wrong way to address the crisis America faces. It is unclear how surveillance would have changed the events of Jan. 6. Planning was done on Facebook, Twitter, Parler, and other social networks to the point where normal people on the internet knew something bad was coming, even if the Capitol Police didn’t. Beyond this, the president went so far as to invite everyone into Washington on Jan. 6 on Twitter—how would surveillance help people who refuse to read what is in front of them? It’s not as if the government is handicapped in this arena. The United States already has laws on the books to deal with domestic terrorism, which were also expanded under Section 802 of the 2001 Patriot Act.
Where is the proof new laws will keep Americans safer and keep threats at bay? Unfortunately, there isn’t much, but the zeal of the government to apply the politician’s syllogism means this is ultimately irrelevant. These people are telling you that it doesn’t matter that all of these surveillance laws of 2001, 2015, and more failed in stopping Jan. 6 but that the next set of rampant civil liberty violations will do the trick for sure. The insurrectionists of Jan. 6, who sought to strip away Americans’ rights to democracy itself, must be crushed. But the government already has the tools to do so without putting more rights at risk.
