On Oct. 26, 2001, Congress passed the U.S. PATRIOT Act. As a member of the U.S. Senate at the time, I cast the lone vote against it.
Twenty years of hindsight confirm that expanded government surveillance comes at a steep price for civil rights, our democratic legitimacy and marginalized populations. Congress has a unique opportunity to begin the deconstruction of the surveillance state. It should seize it.
The PATRIOT Act accelerated the nation’s move toward a surveillance state like adding fuel to fire. It was passed by Congress within weeks of the 9/11 attacks without adequate time to fully comprehend its sweeping ramifications.
The act authorized widespread wiretapping and expanded the scope of search warrants and subpoenas. Suddenly, the government had ample access to our private communication and information.
As I feared, the power granted by the PATRIOT Act has not been used exclusively, or even primarily, for counterterrorism. Instead, the act’s provisions have been employed in the so-called war on drugs and against political activists. And, as history foreshadowed, communities of color have been disproportionately targeted by government surveillance.
The PATRIOT Act also represented a seismic shift in our democracy’s checks and balances, to the benefit of the executive branch. I have written before about how Congress ceded its national security responsibilities after 9/11. Just as alarming is how the PATRIOT Act hamstrung our judicial branch.
For example, Section 215 of the PATRIOT Act expanded the government’s ability to access personal records held by third parties, including doctors, librarians and internet service providers. And while a judge must certify that the government has met the statute’s broad criteria, the government does not have to show any evidence to back up its claim. Instead, the judiciary must trust the government at its word.
As a result, courts have too often been bystanders to the use of the PATRIOT Act and its replacement, the USA Freedom Act — rather than being meaningful participants actively involved in determining its scope and constitutionality.
A key step to dismantling the surveillance state and to restoring civil liberties in this country is reinstating judicial oversight. Our judicial system exists in no small part to protect civil rights and liberties and to check the power of the other two branches of government. We must restore our courts’ ability to restrain the surveillance state.
Only a few years ago, the Supreme Court took an important step to reign in surveillance when, in an opinion by Chief Justice Roberts that Justices Ginsburg, Breyer, Sotomayor and Kagan joined, the court held in Carpenter v. United States that the government violated the Fourth Amendment when it seized cell phone records without a warrant.
Although unrelated to the PATRIOT Act or the USA Freedom Act, Carpenter was a landmark privacy decision. But its future, and that of other important privacy protection precedents, is now in the hands of a Supreme Court packed with conservative judicial ideologues.
The Supreme Court’s super-conservative majority is already delivering wins for the right by upholding voter suppression laws, diluting the separation of church and state, and stripping pregnant people in Texas of access to safe and legal abortion. The court’s blatant disregard for precedent in recent cases makes it difficult to assess whether Carpenter’s privacy protections will last.
This underscores the need for Congress to act. The House’s and Senate’s inability to reach agreement last year on key portions of the USA Freedom Act presents an opportunity to rein in the surveillance state — an opportunity that could be pursued in tandem with Supreme Court reform.
Twenty years after the passage of the PATRIOT Act, Congress cannot begin the necessary process of dismantling the surveillance state fast enough.
Russ Feingold, a member of the U.S. Senate from 1993 to 2011, is president of the American Constitution Society, a progressive legal organization.