The Life and Revival of the PATRIOT Act:

Innocent Until Suspected Guilty

To say that the controversial Title V provision of the PATRIOT Act began with the events that took place on September 11, 2001 would not only be factually incorrect, but it would fail to acknowledge the ancient war over sedition waged between governments and their citizens since law was first codified in ancient Mesopotamia.There are only two existential threats to the sovereignty of a state; conquest and revolution. In the latter, the government’s enemy is comprised of the subjects to which it serves.In Leviathan, Hobbes wrote

…uniting of strength by private men, is, if for evil intent, unjust; if for intent unknown, dangerous to the [public], and [thus] unjustly concealed…

and governments have sought to implement laws that would create exceptions to whatever civil liberties that are afforded to its citizens. On October 23, 2001, the U.S Congress received a resolution now known as the PATRIOT Act, which was passed the following day. Several provisions under the Act are widely scrutinised; and upon analysis, Title V of the PATRIOT Act appears to be an opportunistic violation of the civil liberties enumerated under the Fourth Amendment to the U.S. Constitution. The authors of Title V in the PATRIOT Act penned the legislation intending to curb sedition, while they sold it as a necessary provision that would allow law enforcement to proactively carry out counter-terrorism operations. It allows “National Security Letters” (NSLs)—an administrative subpoena acting in place of the conventional warrants required in criminal investigations — demanding that an entity or organisation surrender documents pertaining to a private individual without the need for probable cause or any judicial oversight. The most offensive aspect of Title V was that it contained a gag order, such that the recipient of the letter was legally forbidden from disclosing that the order was ever issued. From this, it is imminently clear that the civil liberties of a person under investigation were regarded with little consideration during the drafting of Title V. The fear of seditious activity that pervades any government at war often results in attempts to extend the powers of the government. Andrew Green, in his analysis of sedition in the United States writes in Silence in the Courtroom,

Censorship and the silencing of critics are antithetical to Democracy

referring to the necessity of all voices to be heard in a flourishing free marketplace of ideas. It is a paradox that a democratically-chosen government should seek to restrict civil liberties of those who chose the government, but it is nevertheless in the interests of a government to prevent revolution. It is important that the civil liberties of citizens are protected in codified law by more than just the government officials that have a vested interest in shrinking,

…The right of the people to be secure in their persons, houses,papers, and effects, against unreasonable searches and seizures…

as enumerated under the 4th Amendment. The American Civil Liberties Union (ACLU) is the entity that often shocks people with its demonstrated commitment to protecting civil liberties. In 2005 the ACLU took it upon itself to challenge the constitutional validity of both the NSL and the “gag order” in Title V of the PATRIOT Act. In the case of John Doe v. Alberto Gonzales, the ACLU argued on behalf of the “Connecticut Four” whom had been the recipients of a National Security Letter requesting all information associated with a library computer. As invasive as such a request already is, the “gag order” made it a felony for John Doe to communicate any of what had happened. The ACLU continuously challenges provisions of the PATRIOT Act. In the Doe v. Gonzales case, Justice Ginsberg ordered that,

…the Court should hesitate to interfere with an appeals court that was proceeding on an expedited schedule to review a ruling against a federal law, and that, in any event, the Court should be cautious when such a law had been nullified in a lower court…

This order effectively resulted in the ruling of the lower court that NSLs and the “gag order” provisions in fact were unconstitutional. In the case of ACLU v. Ashcroft, an NSL had been issued to an internet service provider (ISP) named Calyx Internet Access, but the courts struck down the validity of Title V. Ultimately, the Act was amended to allow limited judicial review of NSLs.Presently, various elements of the PATRIOT Act have expired. However, the core of its till lives on today in the form of the USA FREEDOM Act, and the battle between the ACLU and the efforts of the federal government to take any opportunity to violate the civil liberties of the citizens in the interest of ensuring stability continues.