Terrorists Can’t Ruin Our Civil Liberties

Terrorists Can’t Ruin Our Civil Liberties

Alexis ChapmanTuesday,8 December 2015

In President Obama’s speech on Sunday responding to the San Bernardino shooting he said, “We will destroy ISIL and any other organization that tries to harm us. Our success won’t depend on tough talk, or abandoning our values, or giving into fear. That’s what groups like ISIL are hoping for.” This is a reasonable goal and a commendable sentiment except that we’ve already kind of abandoned one of our founding values.

We talk a lot about the First and Second Amendments but the other ones don’t usually get as much airtime. Which is a shame, the Fourth Amendment in particular is a pretty handy little amendment. It says that the government can’t look through or take your stuff unless it has a very good reason, and that it has to explain that reason and describe the exact stuff it wants to look at and/or take in a warrant. This is how the constitution protected our right to privacy and our freedom from unlawful searches and seizures by the government. I’ve used past tense there because those rights were severely curtailed in October 2001 when our Government responded to the 9/11 terrorist attacks by passing the Patriot Act.

In case you haven’t freaked out about the Patriot Act lately let me bring you up to speed real quick. Among other things, it allowed the National Security Agency (NSA) to monitor and collect bulk electronic data, including phone and email records, on millions of Americans without a warrant and then share that data with the FBI, which also didn’t need a warrant to look at it. The fact that our phone calls and emails count as our stuff is pretty obvious to basically everyone except apparently the NSA. (Insert joke about the NSA being an “intelligence” agency here.) So when this all came to light thanks to Edward Snowden in 2013, the program was immediately shut down and our right to privacy was unconditionally restored. Just kidding. After years of public outcry, Section 215 of the Patriot Act allowing bulk data collection and storage was ended on November 29 of this year. And then the NSA stopped spying on all of us and things went back to normal. Haha, got you again! Congress replaced that section of the Patriot Act with the Freedom Act, which still mandates that phone companies store our phone meta data for two years so that the government can access it, but they do need a warrant now.

So in response to terrorism in 2001 the Federal Government basically exempted itself from the Fourth Amendment for over a decade. The sad part is it seems like we didn’t get much in return for giving up our Fourth Amendment rights. In his speech Obama also mentioned that, “Intelligence and law enforcement agencies have disrupted countless plots here and overseas, and worked around the clock to keep us safe.” I’m sure that’s true but according to the FBI any big successes were not as a result of the bulk data collection allowed under the Patriot Act. In spite of all of this, and in spite of the fact that politicians generally claim to want to defend the Constitution, we have some prominent political voices wanting to respond to the shooting in San Bernardino in basically the exact same way we responded to 9/11 — by reinstating the expired parts of the Patriot Act and continuing to disregard American’s right to privacy.

On Fox “News” on Monday, December 7, Jeb Bush said of the NSA bulk data collection program, “Civil liberties are not being violated, and to have the NSA have this information is part of an essential tool for us to be kept safe.” I’ve already called bullshit on both parts of that sentence in general terms above but let’s look at how the change from the Patriot Act to the Freedom Act applied to this particular act of terrorism in San Bernardino.

Four days before the San Bernardino shooting, the federal government lost the ability to search through five years of data without a warrant, and instead they could only search through two years of data with a warrant. So to imply that that made a difference in this case means that there was something that the perpetrators did electronically between two and five years ago that the FBI would have only noticed in the four days prior to the shooting which would have led them to take action against the suspects and stop this tragedy. That’s theoretically possible but it seems extremely unlikely, in the same way that Deez Nuts becoming President is theoretically possible but extremely unlikely.

The Patriot Act and NSA spying failed to prevent the San Bernardino shooting and the President is right; we’re not going to stop tragedies like this by being scared into abandoning or re-abandoning our values. It makes no sense to reinstate section 215 of the Patriot Act and go back to pretending that the Fourth Amendment doesn’t exist. Groups like Daesh are hoping we compromise our democracy and our values; I’m hoping that our political leaders will listen to Jim Sensenbrenner, who recently said, “The cautionary tale is that democracy depends upon a respect for civil liberties.” He introduced legislation in 2013 to roll back the Patriot Act and more recently cautioned France against that type of legislation. And he should know whether or not the Patriot Act was a good idea. He’s one of the people who wrote it.

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Image Credit: Elvert Barnes on Flickr

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