The USA PATRIOT Act: A New Way of Thinking, an Old Way of Reacting, Higher Education Responds

June 16, 2012

On October 26, 2001, only six weeks after the unfathomable horror of September 11, President Bush signed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (“PATRIOT Act”).2 The bill was more than 340 pages long, had significant changes in its final days, and affects more than fifteen already existing statutes.3 In response to the crisis of September 11, the legislation passed 98 to 1 in the Senate and 357 to 66 in the House of Representatives without hearings and with little debate or discussion. Yet, the debate is increasingly being heard above the din of crisis, with members of the higher education community deeply involved;4 even members of Congress have questioned their own actions voting for the Act.5 Essential to this growing debate is the frank realization that the PATRIOT Act was implemented in response to a national security crisis, rather than an unfolding legislative action. Similar responses to actual or perceived security crises resulted in The Alien and Sedition Acts of 1798, President Lincoln’s suspension of habeas corpus during the Civil War, the Espionage Act of 1917, the internment of Japanese-Americans after Pearl Harbor, and the Smith and McCarren Acts, during the McCarthy years.6 Historical perspective, however, reveals these to have been reactions, rather than responses, and none of these reactions is defensible today; most must be viewed as reprehensible and unjustified reactions to perceptions of the need for expediency in the face of perceived threats to national security.
This article first recognizes the tension between individual freedom versus the community good in surveillance activities, the unjustified reactions taken in times of security crises, and Title II of the PATRIOT Act’s creation of a new way of thinking after September 11. The article then examines the means and methods of surveillance, and the significant changes made to existing surveillance laws by Title II. The article also examines how section 215 of Title II generated a debate between librarians and the Justice Department that revealed the need for and importance of that debate in determining whether the PATRIOT Act is a reaction or a response to a perceived security crisis. The article then examines provisions outside Title II, which have a significant effect on institutions of higher education. The article concludes by accepting higher education’s duty to advance the debate between individual freedom and the community good, and also higher education’s need to respond with practical solutions.