The people's healthy suspicion of government

With the notable exception of the Boston Marathon bombing in 2013 – more than a decade after 9/11 – there have been no major successful terrorist attacks on U.S. soil. My gut tells me that the extraordinary efforts of our military and intelligence agencies – aided by key provisions of the U.S. Patriot Act – are largely responsible for this success. Given the ongoing turmoil in the Middle East, it certainly is clear that the lack of major attacks here in the U.S. has little do with the desires and plans of the terrorists themselves.

There is a legitimate question as to whether provisions of the Patriot Act, which were to expire at the end of May, remain necessary to ward off threats to U.S. national security. The fact that the provisions themselves were written with sunset clauses suggests that the original writers viewed them as extraordinary powers and intended to grant them on a limited basis to fight off an extraordinary threat. They were apparently sensitive to concerns about constitutional rights and civil liberties that would have made such measures as collecting personal information of millions of non-suspect Americans unpalatable during "ordinary" times.

Like most extraordinary powers once provisionally granted, the government tends to take a personal interest in preserving them indefinitely. They are generally never voluntarily rescinded. Whether we are talking about aspects of the Voting Rights Act, which for over 50 years compelled some states to submit changes to local voting rules for federal administrative review and preapproval, or war powers more generally, we Americans have always operated under the suspicion that given the option, government will usurp powers bestowed upon it for the common good and apply them toward corrupt and tyrannical ends.

This is not a suspicion generally born of the American experience. No, our suspicion of government predates the founding of this country and was a major reason why the Founding Fathers believed in a limited government. In other words, having escaped and thrown off usurious monarchies in Europe, the Founding Fathers built a suspicion of government into the very structure of the nation. Whether in the form of "co-equal" branches, the principles of federalism, individual rights, equal protection or due process, our forefathers built in checks and balances to try and prevent concentrations (and therefore abuses) of power.

Individual rights are derived under the Constitution from the natural rights of man – life, liberty and pursuit of happiness. The Constitution then carefully delineates which powers the people grant to the government that permit the government to abridge some of these natural rights in order to preserve the overall social good. One's freedoms of movement or assembly, for example, can be restricted by the property rights of another. Provisions of the Patriot Act obviously invoke the Fourth Amendment prohibition against unreasonable search and seizure. Basically, the government has no right to search any individual (or his property) without probable cause (or reasonable suspicion of illegal behavior). Federal court decisions over the years have gradually evolved standards for what constitutes probable cause, and the debate continues. Some would argue that the judicial standard has eroded, while others would say that the government does not have enough authority to protect society from violent crime.

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The secret and warrantless collection of the personal records of millions of Americans without probable cause raises the question of whether we can exist as a society without giving up a significant portion of our rights to privacy and freedom. The government argues that it must have these sophisticated surveillance tools to track the movements of money, people and resources that are critical to planning terrorist attacks on U.S. soil. But the American people are completely justified in their suspicion that such tools can and will be abused if left unchecked. The FISA courts, initially established to review government data requests and other kinds of secretly obtained evidence, have been widely criticized as a rubber stamp for practices that are overbroad and possibly unconstitutional. Furthermore, the fact that the FISA proceedings themselves are so shrouded in secrecy and immune to citizen oversight begs the citizens to place blind trust in the government's ability to do the right thing. This "blind trust" argument just does not sit well with the American people – nor should it.

More alarming than the surveillance practices themselves, however, is the fact that this issue has become so politicized as to be almost impervious to rational debate. Grandstanding by politicians on the left and the right – most of whom voted to establish the Patriot Act in the first place – has thus far shed more heat than light on the debate. The alarmist prevarications on the left lack context in that at the time of the law's passage there was widespread fear of another major attack on U.S. soil – like the one that killed over 2,000 Americans on 9/11. The public demanded that the government use any and all measures to prevent another tragedy, and through their elected representatives in Congress enabled the passage of the Patriot Act. There has been a fair amount of grandstanding on the right as well. Accusing political opponents who question the practice of secretly collecting and analyzing private citizens' information of intentionally putting the American people in harm's way is cheap political theatre.

There is a way through this that will both protect Americans against terrorist attacks and preserve our individual rights under the Constitution. The first thing is to remember that the U.S. Constitution is essentially a community of rights and that some rights have to be circumscribed to assure other rights, within the context of a society that preserves life, liberty and the pursuit of happiness. The second step is to create a transparent legal framework that carefully enumerates what information can be collected, by whom, under what circumstances and for what purposes. The third is to create a real counterbalancing oversight responsibility within the U.S. judiciary – the FISA courts in their current form may not be sufficiently constructed to do this. But the last thing any American should expect to hear from his or her government is "just trust us."