Wednesday, May 04, 2005

The Patriot Act – Article 55

The opponents of Article 55 have made a number of arguments against it. Among these I don’t include the view that the article is not a proper subject for town meeting because this view is held by some people on both sides of the Patriot Act debate. And the fact remains that nothing in the Town charter or bylaws prohibits such a discussion and vote by the Town Meeting.

Opponents claim that there is nothing unconstitutional about the Patriot Act and that no court has found otherwise. They also maintain that even if certain protections under the Bill of Rights are being eroded, such a result is justified by the ongoing, imminent danger of terrorist attack we face. They point to the absence of any additional 9/11 type incidents as proof of the Patriot Act’s value. Finally, they implicitly tell us that we should trust our government to use the relaxed safeguards of our liberties to exclusively fight the terrorist menace and nothing more. We “ordinary” citizens have nothing to fear from our own government.

The constitutionality of the act will be decided by the courts on a section by section basis. A US District Court has found a provision of the act unconstitutional. But let’s remember that a law’s constitutionality is hardly the only basis on which citizens can object to a law. Especially when it comes to our basic freedoms, we have the right to petition our representatives to change laws we find threatening whether they have been found unconstitutional or not.

Has the Patriot Act prevented terrorist attacks since 9/11? I don’t think we know the answer to that. The Justice department has claimed the act useful to a small number of specifically identified actions. But I’ve been unable to find any instance in which the provisions of Section 215 – the section which has created the greatest concern because of its much lowered standard of judicial oversight, elimination of the requirement of probable cause, and secret gag orders – have been declared necessary to a successful effort of law enforcement officials.

But the opponent argument that concerns me the most says that we can trust our government to not abuse the lowered standards of constitutional protection, or that we need not worry that some provisions of the act are not limited to terrorism investigations, even though the threat of terrorism is the justification for lowering the standards.

The very existence of the Bill of Rights in our constitution is the ultimate refutation of the “trust the government” argument. The constitution drafted in Philadelphia in the summer of 1787 did not contain a Bill of Rights. Two of the staunchest supporters of individual liberties, John Adams and Thomas Jefferson, were on diplomatic assignments in London and Paris. Perhaps if they had been present in Philadelphia a Bill of Rights would have been included. As it is the Constitution was forwarded to the States for debate and vote. Many people voiced concerns about the lack of an explicit list of individual rights. Alexander Hamilton responded in one of the Federalist Papers. He argued that since the constitution did not give the government explicit powers to limit the freedoms in question, people shouldn’t be concerned. Fortunately Adams in London read a proposed draft of the constitution and wrote to Jefferson in Paris. “What think you of a Declaration of Rights?” Should not such a thing have preceded the model?” Jefferson wrote James Madison and persuaded him to accept a Bill of Rights as a condition for ratifying the constitution.

Adams’ commitment to individual rights was on display almost ten years earlier when he wrote the Constitution for the Commonwealth of Massachusetts. He gave “A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts” prominent place after the preamble and before he discussed the framework of the government. The right to which Adams gives the most attention is the protection against unreasonable searches and seizures. This argument became the core of the 4th amendment, the very one threatened by the Patriot Act.

And yet later as President John Adams was reluctantly persuaded to sign the Alien and Sedition Acts. Ostensibly passed to prevent a popular uprising similar to the bloody revolution in France, the law was used to silence opponents of Adams’ Federalist party. Freedom of speech and the press were curtailed, and prominent journalists who supported Jefferson’s party were actually tried and convicted of sedition.

So when people tell me to trust the government in matters of personal liberties, I tell them that if I can’t trust John Adams to resist the inevitable temptations governments develop to violate rights, I certainly won’t place that trust in today’s occupants of that office or the people who run the department of Justice, the FBI and the CIA.


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