Homeland Security and the Patriot Act
COMPUTING AT CHAOS MANOR
Jerry Pournelle
Thursday, May 29, 2003
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Introduction: From the Alien and Sedition Acts to Al Qaeda
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Introduction: From the Alien Sedition Acts to Present
One of the major differences between Conservatives and Libertarians is their view of national security laws. With the exception of some Libertarians who have become indistinguishable from anarchists, both sides agree that government ought to be limited. Conservatives see government as a positive good rather than necessary evil, but "like fire it is a dangerous servant and a fearful master." Libertarians tend to Jefferson's dictum that the government that governs best governs least (and some go on to add Thoreau's postulate that it follows that the best government is one that governs not at all). Nearly everyone, liberals, libertarians, and conservatives recognize that rights are not self-enforcing,; that if the state doesn't survive you won't have any liberties at all; and that the state does need means to protect itself.
The US Supreme Court once remarked that The Bill of Rights is not a suicide pact. Exactly so.
One early example of this tension between power and liberty was the Alien and Sedition Acts of 1798. The Columbia Encyclopedia summary of this matter is for the most part fair, but does underplay the threat to the United States from French revolutionary agents and agitators. In hindsight the United States was in no danger of revolution on the French model, but it is not entirely clear that all of the New England Federalists who promoted the Acts as a means of undermining support for Thomas Jefferson and his new Republicans (which became the Democratic Party some years later) were mere cynics pretending fear of anarchy. It had been little more than a decade since Shay's Rebellion (a key event in the decision to scrap the Articles of Confederation and draft a new Constitution).
A few years later, President George Washington donned his old uniform as a Continental Army general to order 13,000 troops out to put down the Whiskey Rebellion. Aaron Burr, who in 1800 would have become President were it not for the Electoral College, was deep in conspiracies. There were threats enough to the new Constitution.
In any event, the Federalists adopted the Alien and Sedition Acts which took effect when John Adams was president; and certainly some of those voting for the Acts held hopes of destroying Jefferson's political party as well as his chances of election.
The Alien and Sedition Acts spawned the Virginia and Kentucky Resolutions, which solemnly declared that the States had the right to intervene when the Federal Government transgressed against the Constitution itself. Thomas Jefferson himself drafted the Kentucky Resolution.
This tension between individual liberty and the necessities of national security remained through most of our history. There were the various Civil War actions and suspensions of habeas corpus. Later came the Red Scare and the Palmer Raids, agitation against the US involvement in World War I, Nazi, Communist, and Anarchist conspiracies including terror threats, World War II, and the Cold War. Many of the views of Americans on his subject have been formed through misleading and downright deceptive accounts of Senator McCarthy's investigations of Communist infiltration and influence; for what I consider a fair account of the McCarthy era, I can recommend Wm. F. Buckley's The Red Hunter.
The Patriot Act was passed by a vote of 357--66 in the House and 98--1 in the Senate, so it cannot be called unpopular.
Ramesh Ponnuru in the June 2, 2003 edition of National Review defends the Patriot Act, pointing out that at least some of the opposition to the Act is brought about by misunderstanding or in some cases deliberately misleading accounts of what the Act does. As examples he points out that roving wiretaps have been authorized since 1986 (they require search warrants from a judge); gives the same powers and restrictions over Internet surveillance as the federal authorities have over telephone and mail surveillance (actually the government has more power over mail than over telephone conversations); and gives the government no powers over library and bookstore records than it has always had through subpoena.
The Electronic Freedom Foundation opposes the Patriot Act, and authors organizations including the Science Fiction Writers of America have come out against some of its provisions.
It is time for a calm and rational debate on this subject, and this may be the proper forum: this is a well informed readership with considerably greater technical understanding that most members of Congress and their staffers.
The questions then are: should all or part of the Patriot Act be repealed, and if so, why?
If not repealed, amended, and if so, how?
Should the Acts make distinction between aliens and citizens, recognizing that the Framers certainly thought the Congress had much more authority over aliens than citizens?
What if any legislation is needed in this new era of increased US overseas commitments, and new opposition, yea hatred, of the United States through parts of the world?
The threat of terrorist attacks is real and demonstrated. How should this nation -- Republic or new world order empire -- deal with them in our domestic law?