A Constitutional Disaster

Nation: Patriot Act Debate Wages On In Background

(The Nation)  Although the secrecy and gag orders in the law make it difficult to know the full extent of abuses, the Patriot Act has been notoriously used against innocent people like Portland attorney Brandon Mayfield (wrongly accused of involvement in the Madrid bombings); Muslim student Sami al-Hussayen (wrongly accused of material support for terrorism by exercising First Amendment rights to post publicly available material on his website); and foreign professors and intellectuals (including moderate Muslim professor Tariq Ramadan, who could have helped build bridges to the Muslim world but was excluded from accepting a professorship at Notre Dame through the Patriot Act).

The government has initiated deportation proceedings against even lawful permanent residents for engaging in constitutionally protected speech reflecting viewpoints with which the government disagrees, while major Muslim charities have had their assets frozen based on unchallengeable secret evidence. In one reported court case, an unnamed Internet service provider was even served with a national security letter that was later declared unconstitutional by a federal court on the grounds that it invaded Fourth Amendment privacy, by forcing disclosure of e-mail and websurfing records, and infringed First Amendment free speech by prohibiting the ISP from telling anyone about the letter.

And while the Administration maintains that no librarian has been served an order to disclose patron records, a recent federal court decision confirms the American Library Association survey and the private reports that many of us had received: Hundreds of librarians have been approached for records. The law has been formally invoked at times, but need not be: Librarians know it exists and that they can be jailed for noncompliance. In a recent federal court decision, the gag order preventing the librarian from disclosing such an order under the Patriot Act was held unconstitutional. The government is appealing the decision.

The Value of Truth

From its founding, the United States has put a premium on "self evident" truths, including the liberties in the Bill of Rights. The Bush Administration's disregard for truth when defending its invasions of our fundamental liberties (and its other invasions, for that matter) is especially ironic when one considers the immense practical value of the truth-seeking that underlies so many of these liberties.

The First Amendment protects vigorous debate in the marketplace of ideas and critical dissent; freedom of assembly, press, petition, conscience and opinion; and tolerance for different forms of political and religious truth. The Fourth Amendment protects the privacy needed to gather information and form independent beliefs and opinions contested in clashes over truth. The Fifth Amendment's due process of law and the Sixth Amendment's right to counsel and to confront witnesses protect adversarial systems aimed at allowing the truth to emerge, thereby punishing solely the guilty and sparing the innocent. The Eighth Amendment's prohibition on cruel and unusual punishment recognizes that coercion can taint truth. The Fourteenth Amendment's guarantee of equal protection again supports effective law enforcement based on true facts instead of false stereotypes.

Truth and Power

Harvard professor Laurence Tribe recently delayed the latest volume of his seminal constitutional law treatise. His reason? Constitutional law is in such flux that "profound fault lines have become evident in the very foundations of the enterprise, going to issues as fundamental as whose truths are to count and, sadly, whose truths must be denied."

Idaho Republican Representative Butch Otter similarly lamented the declining fidelity to truth during the House Patriot Act debate. Saying he was "embarrassed to be on this side of the aisle," he emotionally referenced John Stuart Mill and criticized the distortions and lack of full and fair debate in terms that captured the essential bond between liberty and truth: "The very thing that the Patriot Act is supposed to give to this country, that the proponents of it say gives to this country, is being denied on this floor today, and it is being denied because I think people are afraid to be exposed to the truth."

Sadly, the Patriot Act's renewal is about raw power — and maintaining power even at the cost of American values and what are, after all, deeply conservative but widely shared principles. How else can one explain the distortions and deceptions described above and the massive betrayal of the core conservative tenets of respect for the Constitution and Bill of Rights, limited government, individual liberty, federalism and the rule of law? How else can one explain the most democratic arm of government, the House of Representatives, ignoring the broad nonpartisan concern expressed about the Patriot Act in the resolutions independently passed by Bill of Rights Defense Committees in nearly 400 communities (and seven states) nationally, not to mention the 18,000 cities covered by the National League of Cities resolution, and similar resolutions and concerns raised by myriad other organizations? Legislators representing the 400 districts that specifically passed resolutions were more inclined to be critical, but those from other districts were overwhelmingly passive on the issues or complicit in undermining liberty.

Thomas Jefferson believed that "an informed democracy will behave in a responsible fashion." But the converse is also true: Systematic deception blocks responsible democracy. We would do well to recall the oft-repeated words relating truth and liberty: "Know the truth, the truth shall set you free."