Late Night Thoughts on the Patriot Act: Size Matters

With George W. Bush paying his last tribute to European allies, and the potential for a strategic inflection point with the choice for a new American president, here are some thoughts for more benign supporters of the current administration (i.e. myself) on what I consider the President’s most enduring legacy of his mandate, namely The Patriot Act of 2001. It’s just my musings on intentions.

My aim here is to demonstrate how a single action can be perceived (and proven to be) both a success and a failure. First, I will outline the a priori argument, which shows the Patriot Act as an example of successful Congressional oversight. Second, I will look at the problem from an a posteriori approach, and try to show how and why the Patriot Act can also be perceived as a failure of Congressional intelligence oversight.

An a priori approach emphasizes the honorable intentions that prompted an action in the first place. An a priori argument is the notion that bad things are sometimes the right thing to do, not because the end is good, but because the motive is good. This argument falls in the domain of ontological ethics developed by the philosopher Emanuel Kant. In analyzing ulterior motives, Kant points out that something could look good, and really be bad, and vice versa. He argues that only if an action springs from a desire to do good with no expectation of reward or benefit, is the action truly good, and goes on to discuss under what conditions will people do good without ulterior motives and/or expectations. The answer is “duty”. Leo Strauss has summarized Kant’s doctrine succinctly: “The moral worth of an action proceeds from the goodness of the will by which that action is animated, which in turn means the purity of that will – the goodness of the will in its abstraction from every empirical end. Purity of will implies purification of the will of all substantive intention, the animation of the will only by its self-respect, its respect for the formal principle of will in general, in other words respect for law as such. Duty itself means the necessity of performing an action out of respect for law.”

When the Patriot Act was signed into law in 2001, it met with almost unanimous support from all directions of the political spectrum. It was seen as “the right thing to do”, as the nation’s “duty” to protect the ultimate raison d’etre of a democratic state – the rule of law (or in Kantian terms, Rechtstaat). Congress approved the Patriot Act in order to try to better deal with the new challenges emerging in the geopolitical arena: the rise of non-state, transnational and asymmetric threats, most notably exemplified by the 9/11 terrorist attacks. While terrorism is not a new phenomenon, 21st century transnational terrorism poses an unprecedented challenge. It challenges the institutional and legal foundation of intelligence by combining features of both internal and external threats because it operates both inside and outside boundaries. The Patriot Act was successful in identifying this new challenge and saw to it that former strict divisions between external and internal intelligence, i.e. between the CIA and the FBI, erected in the aftermath of Watergate in the 1970s, were less strictly enforced. It allowed for freer and better information exchange and collaboration between the different intelligence agencies, including the FBI. Further, it allowed non-citizen terrorist suspects to be detained for up to 7 days without a hearing, and in some cases where an individual was certified to be a threat, it allowed that the individual could be held indefinitely. Moreover, non-citizens, who were found to have raised funds for terrorist activities could be deported. The FBI was granted greater freedom in accessing electronic communications. The Treasury was authorized to order banks to reveal sources of suspicious accounts and sanction uncooperative institutions.

Having looked at the Patriot Act from an a priori point of view, which shows that Congressional oversight was, for all intents and purposes – doing one’s duty in the name of national security – good in its inceptions, I would like now to turn to an a posteriori approach and show the results, and to a large extent unintended consequences, of the passing of the Patriot Act. It could be argued that the Patriot Act has, in a number of ways, infringed upon the notion of good governance as understood in a democratic society.

An a posteriori argument is a classic example of Aristotelean teleological ethics, according to which the end justifies the means. In other words, sometimes bad things need to happen because the consequences are good. Timing plays a major role in teleological ethics, with a focus on short-term consequences sometimes taking precedence over long-term. If we want to speak of the Patriot Act as a failure of Congressional intelligence oversight, it is precisely the failure of focusing on the short-term rather than the long-term consequences. Thus, while the Patriot Act enabled greater access to information and inter-agency cooperablity, it did so at the expense of departing from constitutional norms and civil rights and liberties which characterize democracy, with dire consequences for the U.S.’ public image both on the national level and abroad.

An a priori approach is one essentially based on retribution, eye for an eye, and is incompatible with the rule of law. It postulates that people who lie, deceive, or otherwise treat other people as a means to an end, deserve to be treated in exactly the same way. Since the war on terrorism is not a traditional military one, but rather politico-ideological and psychological, the aim of terrorist groups to destroy Western values, namely, to erode and destroy democratic institutions and governance, the Patriot Act has done little to reinforce democratic values. Instead, it has focused on revenge and the application of tactics which may have sufficed to deal with Cold War threats, but have clearly come short in addressing 21st century challenges and threats. Blurring the division between external and internal intelligence, while honorable in intent, has produced a number of unintended bad consequences for civil rights: uninformed surveillance of individuals, not always justified infringements on the “rights” of immigrants, asylum seekers an ethnic and religious groups, limiting or altogether eroding the rule of law that everyone should be treated equally before the law.

In conclusion, since it is mainly the internal intelligence activities that have come under attack in light of the civil rights infringement debate, Congress would do well to focus on those provisions of the Patriot Act which deal with foreign intelligence, allowing greater freedom of action, while enforcing stricter control, supervision and oversight internally. It should be careful to avoid extreme positions which leave little room for flexibility and adaptability. The rigidity of categorical imperatives are simply ill-suited to deal with the threat of transnational terrorism. Whatever approach Congress decides to adopt in the future, it should leave enough space for manoeuvring as the external and internal environments change. It should also develop the capability to respond as close to real-time as possible as an inability to do so will undermine even the most successful policy or approach. I came across a blog entry recently, entitled “Is your watchdog a lapdog or an attack dog?” Humor aside, let us not fool ourselves: neither a Bolognese nor a Rottweiler make for good watchdogs; size matters, but so does personality. Personally, I would feel safer with a German Shepherd.

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13 Responses

  1. Hi from across the room.:-)

    I’m going to dip my toe in this really quickly and jump out. I’m not up on the philosophical terms, as you know (.-)), so this may not even apply to what you’ve written.

    The main problem with the Patriot Act was that, as you stated, it was unconstitutional. Because the Act was formulated in this fashion, “supposedly” under a system of checks and balances, to me means that congressional oversight failed.

    If an a priori approach means without outside influence or previous experience, then, perhaps, this approach was not the best approach for forming the Act. The Constitution is a framework in which our laws “should” fit. That framework, by default, is the influence, which makes an a priori approach not work in the formulation of a law.

    And I have no idea if what I’ve written makes any sense.:-)

  2. I did not say it was unconstitutional. In fact, the first a priori argument deals precisely with this: intentions.

    But I do agree that basing laws on a priori arguments is not optimal. The problem I have with the posteriori argument, however, is that it is just too limiting in its rationality. Not everything is quantifiable and follows rational linear logic, patriotism least of all:-)

  3. But, you said that the Patriot Act operated outside of constitutional norms. If an act or a person operates outside of constitutional norms, I believe that means it’s unconstitutional.

    If a law is formed on intention, that’s a slippery slope because the interpretation of an intention is relative. But, I think we’re saying the same thing on that.:-)

    The posteriori argument *is* based on limits. The Constitution ensures freedoms, *but* it also sets limits. That’s part of its purpose. Therefore, I believe the posteriori approach is probably the best when placing it in the context of the US Constitution.

  4. I hear you. Still, desperate times call for desperate measures. The limits inherent in law setting are all good when we’re dealing with a straightforward and more or less certain environment. However, and let me reference Taleb’s Mediocristan – Extremistan opposition (because I know you like Taleb), the current environment requires going beyond limit setting. Civil rights and liberties as noble as they are a concept are less sacred to me than human lives! Miyamoto Musashi in the Book of Five Rings says you need a different sword for different occasions and surroundings. So do we.

  5. “…let me reference Taleb’s Mediocristan – Extremistan opposition (because I know you like Taleb), the current environment requires going beyond limit setting. Civil rights and liberties as noble as they are a concept are less sacred to me than human lives!”

    OUUUUCH! You got me! That’s not fair because you know I’d shine that man’s head with a soft cloth.:-)

    I need to go back to my corner and think of a comeback.

  6. […] (extremely) beautiful co-worker, Linda, and I have a running back-and-forth going on at her blog New Risks on a priori/a posteriori approaches, the US Constitution and the Patriot […]

  7. This reads like something that came out of a posterior.

    Civil rights and civil liberties have evolved over the past 1,000 years with the purpose of protecting citizens from the excesses of rulers and governments.

    Abolishing these “limits” in the interests of “national security” doesn’t advance the security of the individual or that of the state. Rather, it undermines both, resulting in the tyranny of the few and the dubious legitimacy of the “state”.

    The French Revolution, the Russian Revolution, the Soviet occupation of Eastern Europe, the continued Chinese occupation of TIbet, the rise of the ayatollah’s in Iran – I could go on but I think these examples suffice as evidence of how governments’ “good intentions” result in violence, intimidation and fear.

    Alas, your argument smacks of the very obfuscation the Bush administration has used to assault the two things philosophers should hold most sacred – truth and the dignity of man.

    Your a priori / a posteriori thesis holds little moral or philosophical water. In fact, it’s laughably absurd. The environments we live in are always uncertain. My next door neighbor may be a mass murdering serial killer intent on my demise. Of course, I don’t know that for sure but I’d improve my sense of security 100% by killing him first, right? Such arguments would make dictators and terrorists of us all.

    The fact that you consider the Patriot Act Bush’s most “enduring legacy” shows you know as much about politics and political accomplishment as you do about law.

    If human life is so sacred to you, you should learn to defend the laws and norms that make it so, and not abandon them to flawed rhetoric.

    Alas, if the past eight years have taught us anything it’s that there are few things more dispiriting than seeing intelligent people defend ideas that are so incredibly dumb.

  8. May you be right!

    Just try to keep in mind, while on your high academic horses, that there are actually people fighting to defend your ability to pronounce your self-righteous judgments about civil rights!

    I claim no “expert” knowledge of law and god save me from claiming “expert” knowledge in politics, but I sure know where my loyalty lies and why. Do you? The historical events you reference, I’m afraid show your clear bias in historical interpretation – which is all but understandable – after all, nothing is more biased than history. Ask Putin! And thank your lucky stars – no, thank the administration you so despise – that you were not born at those times when you would have been executed for treason! People are sacrificing their lives so that the likes of you can lax lyrical about democracy and Rights. These are not rights. They are Privileges! i.e. you’ve got to earn them!

    Judging by the political bias of your comment, you should be all too familiar with Marxist dialectics, so if I say to you that you are the seed of destruction of your own system of beliefs and values, it should make sense to you at least theoretically, no?

    p.s. There were no noble intentions in either the French Revolution or the Soviet occupation of Eastern Europe. I suggest you widen your reading list!

  9. The Patriot Act was not unconstitutional. It was proclaimed unconstitutional (and called all sorts of names) by the Hate-America-First mob. Those enemies within (vide Cicero) who enjoy the protections provided by the Act (and, ultimately, by the Constitution), do not–and cannot, in their debilitated state of mind–comprehend that their heads would be the first to roll if the forces of terror and the religion of peace seized power in the US (don’t say it can’t happen: the Bolsheviks demonstrated how it can happen).

  10. Your response was as muddled as your original post – only it fails to address my points and includes more tired cliches and pseudo-intellectual onanism. Marxist dialectics? I tend stutter that out whenever I’m in a bind too.

    I’m afraid your knowledge of history is as poor as the other disciplines you play with so casually. No noble intentions in the French Revolution? Try “liberty, equality, fraternity”. These three words continue to guide the constitution of the French state and have since informed almost every revolution against the “tyranny” you profess to despise (but would happily have us live under – so long as it’s painted in your political colors).

    Your nod to the vagaries of historical determinism is equally banal. I guess I wasn’t born under a bad star or government. But that doesn’t mean I should acknowledge my “good fortune” and keep my mouth shut when those in power corrupt the law to their own ends. Or should I, so long as they pretend to know as much as you do and claim to be acting in my best interests? I suppose that’s a “privilege” you all enjoy for being so well tutored.

    I’m afraid loyalty to tin pot tyrannies does not allow for the freedom of expression you profess to believe. As to my reading list, I assure you it’s not made up of right wing polemicists and other assorted ignoramuses (none of whom have ever had to fight for the “privileges” they enjoy either).

    Frankly, if I am the “seed” of my own destruction, your are the repeating loop of your own befuddlement. Do please respond as you’ll only prove my point.

  11. “The kind of man who wants the government to adopt and enforce his ideas is always the kind of man whose ideas are idiotic.”

    H.L.Mencken

    Your comment merits no further response.

  12. No. But yours does. The surest sign of an intellectual lightweight: toss out a useless quote and move to close the discussion. The Bush administration has been pretty good at doing that too (evidence of predictability in unpredictable environments; I’ll let Taleb know).

    Appropriately your choice of Mencken proves my point and contradicts yours. Heaven forbid that my government agree with my ideas. Just as long as it agrees with yours. Right?

    Given that the Bush administration has adopted and enforced your theories on justice and security I’m at a loss to see who is more idiotic, you (and your ilk) or the moron we call a president.

    It’s been fun. Best I leave you all in your play pen. Mind you don’t drool on each other.

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