After the September 11 attacks, Congress, which theretofore had been feuding, came together in stunning unity and swiftly approved a sweeping law, called the USA PATRIOT Act, to give law enforcement and intelligence-gathering services unprecedented authority to collect data and wiretap subjects. It took the House a day to approve the final bill, sponsored by Rep. Jim Sensenbrenner, Republican of Wisconsin. The Senate followed the next day, and President George W. Bush signed it into law immediately. In an era when Americans were given a daily color-code of how high the terrorism threat was (green, blue, yellow, orange or red), and Congress itself had the added anxiety of the anthrax attacks that followed the World Trade Center and Pentagon assaults, there wasn’t much of an examination of the privacy loss Americans might suffer under the new law. To appear reluctant to empower law enforcement was considered political self-destruction. Few wanted to face charges that they were keeping authorities from preventing another 9/11.
READ: [Senate Passes Freedom Act, Ending Patriot Act Provision Lapse]
As the reauthorization deadline for the PATRIOT Act neared, Congress — and the country — were both in a dramatically different place. With no major terrorist attack on U.S. soil since 9/11, both lawmakers and their constituents wondered if they had moved too quickly in a post- September 11 panic to give law enforcement their wish-list of surveillance authority. Some provisions of the PATRIOT Act — such as the “sneak and peek” provision that had allowed the FBI to come to people’s homes, without their knowledge, and conduct searches — had been invalidated by the courts. And when Edward Snowden, a former government contractor, released piles of classified documents showing that the federal government was collecting “metadata” on U.S. citizens’ phone records, the floodgates opened — this time, in the other direction. After years of worrying about the threat of another terrorist attack, members of Congress and privacy advocates were contemplating whether the democracy the USA PATRIOT Act was meant to protect was, in fact, being undermined by that very law.
“What’s happened is that the government abused its authority, plain and simple, and I think people are shocked by the kind of lengths that our security agencies went to gather information, very private information. Privacy is important to the American people, as it should be,” says Rep. Jim McGovern, a Massachusetts Democrat who was among just 66 House members who voted against the 2001 act. “I understood the impulse [in 2001] — let’s do everything we can to protect ourselves. This is a way to stop the bad guys,” McGovern adds. “I also understand the impulse for those who over-reach. They don’t want to be blamed for anything, so they say, ‘give me everything, and then some.’ But having said all that … I think it kind of violates American values.”
Adds Neil Richards, law professor at the Washington University in St. Louis, “climates of fear produce irrational choices. When people are scared, they panic, and they do short-sighted things that in the long run are really damaging.” Since 9-11, “people have become tired of being afraid,” and are starting to look more closely at the privacy they gave up for security, adds Richards, an expert in privacy law.
Others worry that the public has over-reacted to the Snowden disclosures and will deny authorities the tools they need. “I think there is some degree of complacency, or perhaps, simply the passage of time. We are a generation past 9/11,” says professor Carrie Cordero, director of national security studies at Georgetown Law School. “I am concerned the pendulum is shifting and we risk scaling back the authorities that have kept the country safe since 9/11. The politicization of, and insertion of presidential politics into, the [PATRIOT Act] debate, was disappointing.”
Polling shows a re-think has been developing among the public at large, as well. Americans still prize national security over privacy, according to surveys done by Pew Research. In 2010, for example 47 percent said they were more concerned that government policies “have not gone far enough to adequately protect the country,” while 32 percent said they were more concerned that “they have gone too far in restricting the average person’s civil liberties.” Still, in 2011, just before the tenth anniversary of the 9/11 attacks, Pew found that 40 percent of Americans believe that “in order to curb terrorism in this country it will be necessary for the average person to give up some civil liberties,” while 54 percent said it would not. A decade earlier, in the aftermath of the attacks and before the passage of the PATRIOT Act, opinion was nearly the reverse, with 55 percent saying it was necessary, and 35 percent saying it was not necessary to sacrifice civil liberties.
ALSO: [Here’s How Long Cellphone Companies Store Your Call Records]
What changed this year, too, was the nature of the political skepticism to parts of the PATRIOT Act. While the 2001 opponents were nearly all Democrats (and only one senator, Wisconsin Democrat Russ Feingold, voted no in that chamber), some Republicans, most notably libertarian-minded Sen. Rand Paul of Kentucky, joined liberal Democrats in demanding tweaks to the law.
The battle became intensely combative and a little personal on the Senate floor, with Paul — who was arguing for a sunset of provisions that allow the U.S. government to collect “metadata” of Americans’ phone records — saying that his opponents on the issue “secretly, want there to be an attack on the United States so they can blame it on me.” That drew rebukes from several of his GOP colleagues, including his senior partner from Kentucky and the Senate majority leader, Mitch McConnell. Siding with Paul, McConnell said, would provide not only “a resounding victory for Edward Snowden,” but “a resounding victory for those who plotted against our homeland.”
Sen. Dan Coats, Republican of Indiana, joined several of his colleagues in accusing Paul of putting the country at risk by refusing to allow the Senate to amend the law and reconcile differences with the House before the act expired June 1 (in the end, the House version of the bill passed the Senate a day after the expiration of certain parts of the act). Paul, Coats said, “has misrepresented this program to the American people, [and is] so determined to stay with his narrative that he would not even allow” the Senate to work with the House.
As in 2001, the Senate was rushed — not by the perceived threat of another attack, but by the expiration of parts of the law itself — and ended up simply approving a bill McConnell did not want, the House version. That version disallows the federal government from collecting metadata of Americans’ phone records, but allows authorities to subpoena the phone companies’ records of calls.
That was an embarrassment for McConnell in his first year as majority leader, and a minor win for civil liberties advocates. But still, says John Mueller, a political science professor at Ohio State University and an expert in security studies, Congress and the public are still uncomfortable doing the same calculations they naturally do when getting into a car or eating a few pieces of bacon: what is the real risk, and what costs are we willing to pay to ease that risk? The chances of dying in a terror attack, even considering 9/11, are just one in four million, Mueller notes (it’s one in 110 million if 9/11 is taken out of the equation). “The issue is ‘acceptable risk,’ and nobody wants to use that term,” Mueller says. For when it comes to terrorism, any risk may be too much for Congress and their constituents to take on.
More from U.S. News
Senate Passes Freedom Act, Ending Patriot Act Provision Lapse
NSA Phone Dragnet Remains Dead As Surveillance Court Makes Rare Move
NSA Can’t Purge Call Records, Regardless of Congress’ Next Move
Privacy or Terrorism? A Question of Risk originally appeared on usnews.com