The Patriot Act According to Patriots
Remarks by Christopher H. Pyle
to the Madison Institute, Madison, Wisconsin
October 11, 2003
I bring you greetings from Massachusetts, where John Ashcroft appeared last month to promote the Patriot Act. He managed to rent Faneuil Hall, but had to remove rows of empty seats because so few invited guests attended. Meanwhile, 1,200 excluded citizens protested outside.
The idea of John Ashcroft praising the Patriot Act in the very cradle of American liberty was so bizarre to me that I thought I should consult some real patriots, to see what they thought of it. Unfortunately, most of our certified patriots are dead, so what follows is an exercise of imagination – what I think real patriots would say about the so-called Patriot Act, were they able to speak to us today.
If that strikes you as bizarre, I can only say that it is no stranger than John Ashcroft defending the Patriot Act in Faneuil Hall. And, as Tom Paine would say, it is always wise, in “times that try men’s souls,” to revert to founding principles. Later this morning we will explore particular provisions of the Act, with the help of three distinguished commentators. But to start off, I would like to report on what I learned by communing with our honored dead.
I began my inquiries in Boston, at the Old Granary Burial Ground, just up the street from Faneuil Hall. Much to my surprise, the first patriot I met was a former Bostonian, late of Philadelphia, in town to visit his parents.
Benjamin Franklin minced no words. “Those who would give up essential liberty to purchase a little temporary safety,” he said, “deserve neither liberty nor safety.”
James Otis agreed. There isn’t a farthing’s worth of difference between Ashcroft’s subpoenas and the king’s infamous writs of assistance that led the colonists to revolt, he said. Your attorney general probably doesn’t remember Magna Carta, which guaranteed that “No freeman shall be taken or imprisoned . . . save by the lawful judgment of his peers or by the law of the land.” You give Magna Carta an honored place in the National Archives, right next to the Declaration of Independence, Otis said, but your officials have forgotten why.
Paul Revere wanted to know what Americans teach their children today. You march them up and down the Freedom Trail past my house, he said, but do you ever tell them what we stood for?
John Hancock asked why the Committees of Correspondence hadn’t come by with a petition he could sign, while Sam Adams muttered something about the Sons of Liberty getting more war-paint.
Down in Braintree, John Adams wanted to know why more Americans weren’t protesting. Don’t they remember what happened here in the 1760s, he asked, when the bluecoated Customs officers ransacked our homes without real judicial warrants and Otis argued so eloquently against those infamous writs of assistance? It was “there and then,” Adams said, that “the child Independence was born.”
Don’t they see, the old man continued, that your Mr. Ashcroft is no different than the Crown attorneys who defended those searches? Those hated writs weren’t probable cause warrants, like the common law requires. They were mere credentials, like Ashcroft’s national security letters and the administrative subpoenas he is proposing in that so-called Victory Act. That’s why I wrote warrants into the Massachusetts Constitution, and that’s why Madison added them to the federal Bill of Rights. Executive searches are the very essence of tyranny, especially when there is no notice of the entry, no inventories of things taken, and no return of the warrant and inventory to a supervising judge.
You moderns must be a rather docile bunch to tolerate the “sneak and peek” searches authorized by the Patriot Act. They are much worse than the searches that drove us to revolt against Great Britain. Those writs of assistance didn’t authorize the Bluecoats to break into our homes secretly in the night and steal our possessions. These “sneak and peek” searches are nothing less than burglaries, and this so-called Patriot Act makes them available for all criminal investigations, not just counter-terrorism operations.
Remember the 1970s, Adams added, when Americans got upset over a couple of third-rate burglaries by Nixon’s “plumbers,” and a few hundred “black bag jobs” by Hoover’s FBI? Well, that was nothing compared to what this Patriot Act will generate. I understand that the Philadelphia police just found several FBI bugs in the mayor’s office. I wonder if they were installed in one of these “sneak and peek” burglaries.
When General Gage occupied Boston, he never detained thousands of innocent people for months without trial, simply for purposes of interrogation. The British were obnoxious and high-handed, but they never went as far as your Mr. Ashcroft.
Adams paused for a moment and then said: You know where this is headed, don’t you? Soon your officials will be transporting people across seas, to be tried on military bases in courts without juries, like they did to us in Halifax. Then they will break down the wall that separates civilian government from military rule, as General Gage did.
They say that the people must give up their liberty in order to win the war against terrorism, but Lord Pitt knew better. “Necessity,” he told the House of Lords, “is the argument of tyrants; it is the creed of slaves.” Otis was right, too. “[T]hose who barter away other men’s rights will soon care little for their own.” You had better see Mr. Jefferson. He will know what to do.
Mr. Jefferson was most cordial. I have taken the liberty, he said, to prepare something for you to share with those good people of Madison. His declaration, which referred to “the boy king George,” had a familiar ring to it.
“Let these facts be submitted to a candid world:
The history of this president is one of arbitrary usurpations of power and deprivations of liberty, the effect of which is to establish tyranny in the name of a false security.
This president has erected a multitude of new offices and is employing swarms of petty officers to conduct dragnet surveillance and arrests in an indiscriminate and counter-productive effort to combat terrorism.
With the complicity of a frightened Congress, he has invested these petty officers with sweeping new powers to burglarize our homes, tap our telephones, and invade our computerized papers and effects without probable cause to believe that a crime has been committed, or that evidence of the crime will be found in the place to be searched.
He has transported hundreds of captives beyond seas, deliberately jailing them where the legality of their detention cannot be tested by an independent judiciary, and has held them under harsh conditions which violate the spirit, if not the letter, of the Geneva Conventions, causing such despair as to drive nearly two dozen of them to attempt suicide.
Within this country he has detained thousands of harmless immigrants for months without trial, under harsh conditions, ostensibly to enforce immigration laws, but actually to keep them behind bars until his agents, reversing the presumption of innocence, conclude they pose no threat.
He has obstructed the administration of justice by instructing his jailers not to disclose the identity of these immigrants, their numbers or whereabouts, or any offenses, real or imagined, that could justify clapping them in chains as if they were the most dangerous of criminals.
He has sought to render immigration judges dependent on his will alone. He has ordered them to conduct deportation proceedings in secret and, in reprisal for their protests, sought to reduce their powers and numbers.
He has rendered the military superior to the civil power by falsely labeling civilians to be enemy combatants, so that he might steal them from the jurisdiction of civilian courts, lock them away in military prisons without access to attorneys, family, and friends, and threaten them with trial before ad hoc military tribunals expressly directed by him to disregard the constitutional rights of the accused.
He has sought to justify these usurpations of power and deprivations of liberty with unprecedented assertions of authority no where to be found in the Constitution, while claiming that our courts, whom he would pack if he could with deferential judges, may not question these assertions because we are in a “war” without end.
He claims that sporadic attacks have transformed our the whole nation from a civil society to a “war zone,” so that he, rather than Congress, as the Constitution provides, can suspend the privilege of the writ of habeas corpus and set up his special military courts anywhere he wishes. He further alleges that our civilian courts may not legitimately question the legality of his assertions of unchecked executive power.
He has endeavored to shroud these usurpations of power and deprivations of liberty in thick cloaks of secrecy, evincing contempt for the duties of Congress, the courts, and the press, as well as for the decent opinion of mankind.”
Jefferson’s new declaration concluded with these words:
“We, therefore, resolve to resist these usurpations by all lawful means at our disposal and, to this end, demand that our state and local authorities deny assistance to federal agencies engaged in unlawful domestic spying and detentions. We insist that the powers of our government continue to be shared as the Constitution directs, by all three branches of government, and not concentrated in one alone. And we call upon Congress, the courts, and the press to reassert their constitutional functions vigorously, as they did in the time called Watergate.
To these ends, we mutually pledge our lives, our fortunes, and our sacred honor.”
Well, that is what Mr. Jefferson wanted me to share with you.
From Monticello, I went west to find David Davis, the Supreme Court justice who had confronted arbitrary detentions during the Civil War. I told him what the Bush administration has been doing and how it had proclaimed the whole nation a “war zone” in which detentions without trial are now necessary. Davis, too, was disturbed, and repeated what he has said in the Milligan case:
“[The] good and wise men [who wrote our Constitution] foresaw that troublous times would arise, when rulers and people would become restive under restraint, . . . and that the principles of constitutional liberty would be in peril, . . . [That is why] the Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with [its] shield all classes of men, at all times, and under all circumstances. . . .”
Then he added, almost vehemently:
“No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of [the Constitution’s] provisions can be suspended during any of the great exigencies of government.”
I thanked the justice and headed back to Boston where I found Justice Brandeis rereading Madison’s speeches. Here is something prophetic, Brandeis said, quoting from Madison’s address to the Virginia ratifying convention. “[I] is a universal truth that the loss of liberty at home is to be charged to provisions against dangers real or pretended from abroad.”
To think, Brandeis mused, that Madison said that before the Federalists passed the Alien Act of 1798, which provided for the summary deportation of French-loving Irishmen. Fortunately, the Adams administration never used the power, but the Wilson administration did, in a gross overreaction to the terrorism of anarchists and Bolsheviks.
Wilson’s “Red Scare” began much like your “war on terrorism,” Brandeis continued. A so-call anarchist blew himself up on the front steps of Attorney General Palmer’s house in November 1919. Another bomb exploded outside the Morgan Bank on Wall Street, and a suspicious mail clerk intercepted 34 letter bombs addressed to prominent people. The government was terrified. A vast conspiracy was alleged, only this time Poles and Russians, rather than Irishmen, were the prime suspects. A dragnet was ordered and thousands were arrested, most without warrants, simply because of their ethnicity or their opinions. Some were immediately deported to Russia – even though they had never been to Russia. I understand that your Mr. Ashcroft not only wants to deport foreigners, but Americans too, after his second Patriot Act strips them of their citizenship for contributing to foreign charities.
To this day, Brandeis said, we still don’t know how many aliens were detained or deported by Mr. Palmer. Like your attorney general, ours refused to give an accurate count. As best we can tell, about 3,000 aliens were detained back then, which is fewer than the number that your administration has already seized. Among those 3,000 Poles and Russians, only three operable handguns were found, hardly evidence of a vast conspiracy. None of was convicted of a terroristic crime, but some were beaten while in prison. A few died there. Fathers were deported and families broken up. And, like your Mr. Ashcroft, Attorney General Palmer made no apologies.
We thought we had accomplished something when we replaced Palmer with Harlan Fiske Stone in 1924. Stone told the FBI to get back to law enforcement and stop keeping files on people just because of their politics or ethnicity. But, like your Congress after Watergate, we didn’t put that into law. That was a big mistake.
Remember what I said in that wiretapping case? Brandeis added. “Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion by evil-minded rulers. The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well-meaning, but without understanding.”
My visit to Beacon Hill left me exhausted. Justice Brandeis had lived our future. But, at his recommendation, I went over to Cambridge to see Felix Frankfurter, Brandeis’s successor on the Supreme Court. I told him of my travels and he quickly saw an analogy. “It is true also of journeys in the law,” Frankfurter said,
“that the place you reach depends on the direction you are taking. [W]here one comes out depends on where one goes in. . . . [I]t makes all the difference in the world whether one recognizes the central fact about the Fourth Amendment, . . . that it was a safeguard against the recurrence of abuses so deeply felt by the colonies as to be one of the potent causes of the Revolution, or [whether] one thinks of it merely as a requirement for a piece of paper.”
The problem with your Mr. Ashcroft, Frankfurter continued, is that he thinks that the Constitution is a meaningless scrap of paper -- something he can wipe his boots on. He has no respect for the Bill of Rights or the system of checks and balances. He believes that the entire document can be suspended in times of crisis. Worse, he and his president are out to imitate that odious fellow Nixon, who also justified his lawlessness by claimed a crisis without end.
Frankfurter thought for a long time, and then added: I think my Court bears some responsibility for Ashcroft’s detentions and Bush’s tribunals. We didn’t do our job in those Japanese detention cases. Like your Fourth Circuit today, we didn’t ask what evidence the executive had against the detainees – which is what judicial review should be about. We talked about the importance of strict judicial scrutiny in the Korematsu case, but we didn’t apply it, and you know how unjust that turned out to be.
We did the same in those military tribunal cases, when we refused to question the fairness of the trials and limited ourselves to considering whether the president had authority to create the tribunals. But worst of all, we shrunk the writ of Habeas Corpus, which should be a broad guarantee against arbitrary detention. We reduced it to nothing more than a pro forma challenge to the tribunal’s jurisdiction.
Frankfurter sighed and then said, almost reluctantly, I think you had better talk to Frank Murphy. He got it right in the case of that Japanese general – the one who was convicted by a military tribunal of the war crimes of uncontrollable subordinates.
I found Justice Murphy in Michigan. He was surprised to learn of Frankfurter’s contrition. The wartime majority, Murphy said, had let its patriotism get the better of its judgment. Have you ever examined the history of military tribunals, he asked me, for example, against the Dakota Indians, the Lincoln conspirators, or General Yamashita? Those weren’t trials, he said. They were legal lynchings.
You know, it’s curious. When your president Bush ordered the creation of military tribunals, nobody questioned the constitutionality or wisdom of upholding them during World War II. But if you look at the text of the Constitution, it couldn’t be clearer that our majority was wrong. Both Articles I and III expressly state that Congress, not the president, is authorized to create tribunals or inferior courts. There is nothing in Article II, Murphy said, that gives the president the authority to create a court system, especially one that can ignore the Constitution, operate outside the system of precedent, and change the elements of a crime from case to case, simply by changing what evidence is admissible.
Nor, I regret to say, was Chief Justice Stone right to hold that the power to create drumhead courts was given to our generals by the common law, or by some backhanded reference to tribunals in the Articles of War. If a new court system is to be created, Murphy said, Congress must do it with a full-fledged statute, like the Uniform Code of Military Justice, that respects the Bill of Rights. Before Bush’s kangaroo courts get going, maybe your bar associations and law schools should pass resolutions declaring it unethical for attorneys to appear before them. Or at least denounce those tribunals in resolutions, like the city council of Madison, Wisconsin, did, criticizing the so-called Patriot Act.
It’s funny, Murphy added, but your librarians seem to be more active in opposing
the Patriot Act than your lawyers. Why is that?
Justice Murphy’s analysis reminded me of Lincoln’s admonition, after the Dred Scott decision, that we should not let a few poorly decided cases settle our law for all time. But I had little time to dwell on that, because I was late for my appointments with two of my former bosses, Senator Sam J. Ervin, Jr., of North Carolina, and Senator Frank Church of Idaho. I had worked for both of them in the era called Watergate.
Reporters used to call Ervin “the last of the Founding Fathers,” and he was still carrying a copy of the Constitution in his pocket when I met up with him. This so-called Patriot Act, he said, is “as full of unconstitutional, unjust, and unwise provisions as a mangy hound dog is of fleas.” You should always “test the wisdom of a law not by what a good man can do with it, but by what a bad man can do with it,” and if you do that this law is extremely dangerous. But the dangers posed by computer technology are even worse.
Computers, you know, are based on the same principle as intelligence agencies: the GIGO principle. Garbage in, garbage out. Now that all these government and corporate and foreign computers are being linked together, Ervin explained, a rotten piece of garbage will go in one end, be sent to numerous computers in numerous secret agencies, and molder there for years. Then, when all those computers are asked to disgorge what they know about some poor soul, that one scrap of garbage will reappear as if it were many, but without any sourcing tag to remind us that it still stinks. In that way false or malicious accusations will be transformed, without human intervention, into God’s awful truth.
Worse, because this garbage has been collected by secret agencies, it can never be disinfected, like erroneous credit reports can. That is why Americans should never trust computers, especially carnivorous computers that the FBI can attach to your Internet service provider in order to search your e-mail for suspicious words and phrases. You know, Ervin said, computers give the impression of infallibility, but they are dumber than dogs, while lacking a dog’s natural compassion and forgiveness.
I found Senator Church deeply depressed, like a man who had just seen his life’s work destroyed before his eyes. We worked so hard, he said, to uncover the FBI’s dirty tricks, Hoover’s burglaries and illegal mail openings, and the domestic spying operations of the CIA, NSA, and military intelligence. We stopped the FBI’s twenty-year program of dirty tricks, and then pushed the military’s spies back onto their bases. We worked even harder to rebuild the wall of separation between law enforcement and intelligence operations. In that way, we tried to restore the Fourth Amendment’s shield against unreasonable, and judicially unsupervised, searches and seizures.
Of course, we did make one exception to the Constitution’s probable cause requirement, but that was limited to taps and bugs aimed at foreign intelligence agents, most of whom do their spying from foreign embassies. We did that because the government almost never prosecutes foreign agents; it just expels them. We never imagined that these pseudo-warrants, issued by the secret Foreign Intelligence Court, would be used in criminal investigations. We trusted the Justice Department to maintain the wall of separation by enforcing the Levi guidelines which returned the FBI to law enforcement duties, as Stone had done in 1924. We never imagined, after all our disclosures, that anyone would ever again direct secret intelligence agents to do criminal investigations. That would have constituted a total end-run around the kind of judicial supervision required by Fourth Amendment.
Unfortunately, the Patriot Act, the FISA Court of Review, and Ashcroft’s new guidelines have reduced our constitutional wall of separation to rubble. Now, the spies are in bed with the cops again, and the Fourth Amendment is in a coma. In the old days, the Fourth Amendment was effectively suspended during shooting wars, but we always knew that when the war was over liberty would be restored. But that’s not the case now. The president expects this war against terrorism to go on forever, which is why he is trying to get rid of the sunset provisions within the Patriot Act. Adams is right. You had better do something to stop this boy George, and do it fast.
* * *
Well, that’s what I learned discussing the Patriot Act with real patriots – not “summer soldiers or sunshine patriots,” but men who have served this nation well in comparable times of crisis. But there is something that Senator Ervin said in parting that I want to share with you. It comes from Justice Sutherland, but the Senator often quoted it.
“The saddest epitaph which can be carved in memory of a vanished
liberty is that it was lost because its possessors failed to stretch
forth a saving hand while yet there was time.”
Also by Christopher H. Pyle:
The Intelligence
Revolution: Remarks to the Association of Former Intelligence Officers
First They Came for the
Immigrants (with apologies to Martin Niemoller)