The USA PATRIOT Act in Historical Context

Dr. Tony Palmeri
Department of Communication
University of Wisconsin Oshkosh

Presented as part of the League of Women Voters panel on "Personal Rights and the PATRIOT Act," November 18, 2003 (Coughlin Building; 625 E. County Road Y, Oshkosh)

I would like to dedicate my remarks to the late UW Oshkosh Professor Emeritus of History Barbara Sniffen who passed away recently. Barbara was a great civil libertarian, a thoughtful historian, and a powerful advocate of many causes supported by the LWV.

USA PATRIOT stands for Uniting and Strengthening America by providing appropriate tools required to intercept and obstruct terrorism.

The PATRIOT Act was passed by the United States Congress just 45 days after the tragic September 11 attacks, with virtually no debate. The Act is over 340 pages and probably was not read by most of the members of congress who voted for it.

Some of the more disturbing parts of the act, like those that give the FBI the power without a warrant to access our most private medical records, our library records, and student records; along with the power to prevent anyone from telling us that we were snooped on-these are powers that the justice department had been seeking for many years under administrations of both major parties. The climate of fear created by Sept. 11 allowed these requests to finally become law.

Other speakers tonight will talk more specifically about the powers the PATRIOT Act gives the government and how those powers have already threatened our rights and liberties.

My goal tonight is to place the PATRIOT Act in historical context. As we are heading into an election season, we will be hearing regularly from politicians in both major parties about how the PATRIOT Act is the worst assault on our liberties in the history of the republic. We will be hearing this even from members of the congress who voted for it!!

As bad as the PATRIOT Act is, it is but the latest in a long series of government assaults on liberties. Benjamin Franklin said "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." Perhaps we are not listening to Franklin today, but did we listen to him yesterday?

If we don't know and are not honest about our past, can we really protect our present and future?

Let me start with something we can all agree on--and that is that the United States Constitution did not even apply to all American citizens in a real sense until the passage of the Civil Rights Act of 1964. Black people, for example, were systematically prevented from enjoying constitutionally protected liberties due to the existence of 3/5 compromises, Jim Crow laws, and other state and federally sanctioned legalisms that make today's Patriot Act almost seem benign by comparison.

Yes, government restrictions on our liberties go back a long time. In 1798, less than a decade after the passage of the First Amendment, Congress passed the "Alien and Sedition Acts" during the John Adams Administration to quell dissent linked to the French Revolution and Irish rebellions. The act clearly abridged the freedom of speech, something the First
Amendment says that Congress may not do. Yet the Supreme Court found the Act constitutional on the grounds that freedom of speech in America, like British seditious libel, only meant that government cannot prevent an individual from speaking. Once he speaks, however, punishment might follow. To this very day the courts interpret the First Amendment only as meaning
"no prior restraint" of speech, an interpretation most Americans find to be shocking when they first hear it.

Vermont Congressman Matthew Lyon was jailed under the Sedition Act for criticizing President John Adams. Thomas Jefferson was appalled by this and called the Sedition Act "an experiment on the American mind, to see how far it will bear an avowed violation of the constitution." Matthew Lyon was reelected while in his jail cell.

What is the writof habeas corpus? According to legal expert Todd Maybrown, "The writ of habeas corpus is the procedure by which a federal court inquires into illegal detention and, potentially, issues an order directing state authorities to release the petitioner." Did you know that President Abraham Lincoln suspended the writ of habeas corpus during the Civil War, rounding up newspaper editors and other dissenters against his war policy? The Great Emancipator ignored a Supreme Court opinion arguing that his actions were unconstitutional, allegedly saying that "the Constitution is not a suicide pact."

In 1917 President Woodrow Wilson announced that the United States would enter World War I and make the world safe for democracy. Many dissenters were prosecuted under the "Espionage" Act, legislation that identified "willful attempts" to "cause insubordination" in the military or "willfully obstruct" military recruiting efforts as subject to as much as twenty years
in jail.

Probably the most famous dissenter to be tried, convicted, and sent to prison for violating the Espionage Act was the Socialist Eugene Debs. While housed in Atlanta's federal penitentiary in 1920, Debs received almost one million votes as the Socialist party candidate in that year's presidential election.

But perhaps the worst assaults on our liberty occurred after World War II. The anti-Communist hysteria of the Cold War featured numerous government abuses of civil and human rights in America. These abuses are usually mislabeled "McCarthyism," making it sound as if Wisconsin Senator Joe McCarthy was alone responsible for the abuses. The fact is that anti-Communist hysteria pervaded the entire federal government during the late 1940s and 1950s.

The liberal Democrat Harry Truman in 1947 issued Executive Order 9835, which launched a program to locate "infiltration of disloyal persons" in the US government. Howard Zinn in his classic A People's History of the United States quotes Douglas Miller and Marion Nowack from their book The Fifties:

"Though Truman would later complain of the 'great wave of hysteria' sweeping the nation, his commitment to victory over communism, to completely safeguarding the United States from external and internal threats, was in large measure responsible for creating that very hysteria. Between the launching of his security program in March 1947 and December 1952, some 6.6 million persons were investigated. Not a single case of espionage was uncovered, though about 500 persons were dismissed in dubious cases of 'questionable loyalty.' All of this was conducted with secret evidence, secret and often paid informers, and neither judge nor jury. Despite the failure to find subversion, the broad scope of the official Red hunt gave popular credence to the notion that that government was riddled with spies. A . . . fearful reaction coursed the country. Americans became convinced of the need for absolute security . . ."

In the 1950s President Eisenhower formed the Doolittle Committee (not to be confused with the Do Nothing Congress) to assess US efforts to defeat Communism.

The September 1954 Doolittle report said in part:

"It is now clear that we are facing an implacable enemy whose avowed objective is world domination by whatever means and at whatever cost. There are no rules in such a game. Hitherto acceptable norms of human conduct do not apply. If the United States is to survive, long-standing American concepts of "fair play" must be reconsidered. We must develop effective espionage and counterespionage services and must learn to subvert, sabotage and destroy our enemies by more clever, more sophisticated, and more effective methods than those used against us. It may become necessary that American people be made acquainted with, understand and support this fundamentally repugnant philosophy".

The hysteria continued though the 1960s and 1970s, most notably through the FBI's COINTELPRO (Counterintelligence Program) stings which from 1956-1971 were designed to "neutralize" civil rights and other activists using means condemned strongly in the mid-1970s by a US Senate Committee chaired by Senator Frank Church. The Church Committee's final
report said, "The American people need to be assured that never again will an agency of the government be permitted to conduct a secret war against those citizens it considers threats to the established order. Only a combination of legislative prohibition and Departmental control can guarantee that COINTELPRO will not happen again."

Please do not fall prey to the erroneous thinking that abuses of civil liberties are more likely to happen during Republican as opposed to Democratic administrations. We have already learned of Democrat Woodrow Wilson's and Democrat Harry Truman's failings in this area.

In addition, one of America's most widely respected civil libertarians, journalist and author Nat Hentoff, has suggested that the Democratic Clinton Administration was one of the worst for civil liberties that the nation has ever seen. The Clinton Justice Department's advocacy of roving wiretaps, reduced appeal privileges for death row inmates, enhanced restrictions on the
rights of immigrants, and the Communication Decency Act (the Internet censorship legislation that even the
conservative-leaning Supreme Court found unconstitutional) all add up to a disgraceful record on civil liberties that was every bit in keeping with what we are seeing now under Bush and Ashcroft.

I will acknowledge, and I suspect Nat Hentoff agrees, that in the Patriot Act and the proposed Patriot II we are heading into territory that has the possibility to become worse than anything we have seen before. Section 501 of Patriot II strips citizenship from those whom the Justice Department has determined to have provided "material support" to an organization the
Department defines as "terrorist." Section 201 explicitly allows for secret arrests along with allowing detainees to be held indefinitely without charges. Sections 301-306 would allow for the extraction of DNA samples from those identified as terrorists or merely "associated" with a terrorist organization. These are harsh police state tactics that A.Mitchell Palmer (Woodrow Wilson's Attorney General) and J. Edgar Hoover would have salivated over.

The silver lining in this troubling history is that it has always been average, everyday people whose names we will never know that stepped in and said NO to government encroachment of liberties. It has never been and probably will never be the intellectuals, or the pundits, and certainly not the politicians who will protect our liberties. Only average people acting together in their communities can force the government to respect the rights of free people.

And that's why I want to end this talk with a note of thanks and appreciation for those members of the League of Women Voters who brought tonight's event into existence. The great founder of your organization Carrie Chapman Catt once said, "To the wrongs that need resistance, To the right that needs assistance, To the future in the distance, Give yourselves." I think the PATRIOT Act is a wrong that needs resistance, the US Constitution is right that needs assistance, and I am thrilled to be here tonight with a group that's clearly willing to give themselves to the future in the distance."