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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