Freedom from the PATRIOT Act

06/01/2015 10:09 am ET | Updated Jun 01, 2016

Many Americans have been heard to mimic the media's disdain for partisan gridlock in Washington, but because Congress and the president often do the wrong thing, it's often better when nothing is done. For example, after the Congress's inaction recently allowed sections of the PATRIOT Act to lapse, I was so ecstatic about my newfound freedom that I, like victims of Soviet oppression when the USSR collapsed, didn't know what to do with myself. However, my decision on how to take advantage of my freshly won freedom vis-à-vis government surveillance had to be made fast, because that freedom was likely to be short-lived. Congress was likely to soon reform the PATRIOT Act with the "USA Freedom Act."

I didn't really know any jihadists to call, and even if I did, I would have just told them that they would be better off getting another more benevolent and productive occupation. But at least I was free of the government's clearly unconstitutional collection of Americans' phone metadata (call origin, call receiver, duration of conversation, and location information) for awhile.

Although the politicians in all three branches of government for a time told us that such a provision was constitutional and appropriate, they began to read public opinion polls that expressed concern about the government of a free republic spying on its citizens en masse. Suddenly the tide shifted and an unusual left-right coalition formed for reforming the always-excessive PATRIOT Act, which was passed in the post-9/11 hysteria of late 2001. Since then, like many other products marketed in America (mouthwash, dandruff shampoo, car tires, etc.), the politicians and the media profited from using fear to convince Americans that the government needed extensive surveillance powers. Never mind that the average American's chance of ever getting killed by a terrorist is remote -- a lower probability than getting struck by lightning. So that is to not to say that no threat exists, but that the public, by being bombarded with all of this external "perception management," was understandably experiencing what experts call "probability neglect" about the actual severity of the threat.

However, public opinion began to shift when Edward Snowden, an NSA contractor, exposed the government's secretive and unconstitutional collection of Americans' phone records. That policy seemed to go against the very foundations of what the American republic stood for--and its violation of the Fourth Amendment to the Constitution, which requires government specificity in search warrants to guard against the use of general warrants for surveillance fishing expeditions (the British did such things in colonial times), supports that conclusion. In addition, despite the fact that the government can get as much information from mapping calls using phone records as it can snooping into the actual conversations, it thwarted no act of terrorism by using the phone records program. (I wonder what would happen if the public ever realized that the main cause anti-U.S. Islamist terrorism is jihadist objection to non-Muslim -- that is, American -- military or covert interventions on Muslim soil, and that since World War II the United States has profligately meddled in the affairs of Islamic countries around the world. However, Americans are not usually big on history, and that fact allows politicians and the media to peddle American nationalism and overseas jingoism as patriotism and love of country. Being patriotic would be better defined as defending the freedom of the republic.)

Most of the left regards Snowden as a hero, and most of the right regards him as a traitor. The reality is somewhere in the middle. Although he should not have revealed some U.S. overseas spying programs -- for example, the bugging of German Chancellor Angela Merkel's cell phone -- secret domestic spying on Americans by its own intelligence agencies is so un-American that Snowden's actions, despite his other transgressions, probably should garner him a net positive assessment in the history books. Also, it is hard to label someone a traitor when the Congress has been forced to reform the unconstitutional program on which he blew the whistle. Thus, the Obama administration, for reasons of both justice and pragmatism (to find out where all of Snowden's information went), should allow Snowden to plea bargain a guilty plea to mishandling classified government information and then pardon him.

This author did some congressional oversight of the NSA prior to 9/11. Back then, the U.S. intelligence community was still smarting over the congressional discovery in the mid-1970s of its domestic spying during the Vietnam War. At the time of my oversight, NSA and other intelligence agencies seemingly knew that they would lose the support of the American people for their vital function of spying on foreign threats if they again violated the Constitution by warrantless spying on Americans. After 9/11, however, they allowed the Bush, and now the Obama, administration to take them again down this ill-advised path; once again, it has blown up in their faces. Intelligence agencies are secretive, but in a republic, they still need public support for their legal and necessary activities and the funding for them.

Public opinion on surveillance has changed so much as a result of Snowden's actions that even if the Congress reinstates some phone data snooping -- the USA Freedom Act requires phone companies, instead of the government, to store phone data records and the government to get a specific warrant to access them when tracking a particular suspected terrorist -- freedom will have achieved a smaller, but significant, victory in an era when many of America's cherished freedoms have been eroded.

So what did I choose to do with my brief period of freedom? I called and ordered a pizza free from any fear that I would be on government surveillance records in the extremely unlikely event that the pizza delivery shop was ever exposed in the future as a front for foreign jihadist terrorists.