The Patriot Act and Crisis Legislation: The Unintended Consequences of Disaster Lawmaking

THE PATRIOT ACT AND CRISIS LEGISLATION: THE UNINTENDED CONSEQUENCES OF DISASTER LAWMAKING KYLE WELCH * I. I NTRODUCTION Over the course of American history, the people have endured many crises that have tested their character and resolve. These trials and tribulations have also prodded the Constitution, trying its durability and the capability of the government it created. Since its inception, the United States Government has proven its ability to respond to these crises to protect its citizens while adequately preserving the Constitution they hold so dear. Nevertheless, U.S. lawmakers have never been reluctant to exploit these crises for political gain. Again and again, Congress has exploited emergencies to pass legislation that would not otherwise have been tenable to either the American public or the political opposition. When faced with trying, often frightening times, the nation’s democratically elected representatives have used disaster as fuel to propel previously unacceptable, even unconstitutional 1 laws through Congress. 2 Often, these emergency acts are marginally related or altogether unrelated to the crisis they purport to relieve. 3 The fear inspired by disaster and tragedy has frequently produced overreactions at watershed moments in American history. This Article argues that these recurring spasms of fearful congressional overreaction should be properly labeled as “crisis legislation.” Most instances of crisis legislation pass unheeded, and any allusions to the phenomenon in discourse Copyright © 2015, Kyle Welch. * J.D. 2014, California Western School of Law, B.S. Mechanical Engineering 2011, The Ohio State University. He would like to thank the editors of Capital University Law Review for assisting in this endeavor and making publication of this monstrosity possible. 1 See, e.g. , Sedition Act of 1798, ch. 74, 1 Stat. 596, 596–97 (expired in 1801) (one of the Alien and Sedition Acts, passed during the Quasi-War with France, which forbade conspiring against the government and libeling the government and its officials). “Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 276 (1964) (footnote omitted). 2 See, e.g. , Sedition Act of 1918, Pub. L. No. 65-150, 40 Stat. 553 (passed during World War I, forbidding the use of “disloyal, profane, scurrilous, or abusive language” about the United States government). 3 See discussion infra Parts III–IV.B. 482 CAPITAL UNIVERSITY LAW REVIEW [43:481 lack a universal term. 4 In The Shock Doctrine: The Rise of Disaster Capitalism , Naomi Klein argued that modern governments have frequently exploited periods of great shock, disaster, or crisis to promulgate free market ideals. 5 She described the phenomenon: “[O]nly a crisis—actual or perceived—produces real change. When that crisis occurs, the actions that are taken depend on the ideas that are lying around .” 6 Following major disasters that provoke fear, sadness, or anger, citizens demand action from their legislators and, in their haste, “are too focused on the emergency . . . to protect their interests.” 7 Though Klein’s Shock Doctrine focused on the economic aspects of our emergency responses, crisis legislation shares many of the same attributes. 8 Crisis legislation is the legislative equivalent of what 4 See, e.g. , Robert O’Harrow Jr., Six Weeks in Autumn , WASH. POST, Oct. 27, 2002, (Magazine), at 6, 8–9, 10 (describing the “classic dynamic” of crisis legislation largely as this Article does throughout, but without any widely-accepted term to express the dynamic in the context of legislation). The only other instance of the term found by the author, rather coincidentally, was in a 1940 Columbia Law Review article discussing crisis legislation in Britain. Cecil T. Carr, Crisis Legislation in Britain , 40 COLUM. L. REV. 1309 (1940). Apparently the term did not catch on with legal scholars, though; and obviously there are significant differences between United States and British law. See id. at 1309. 5 See NAOMI KLEIN, THE SHOCK DOCTRINE: THE RISE OF DISASTER CAPITALISM 3–11 (2007). 6 KLEIN, supra note 5, at 6 (quoting MILTON FRIEDMAN, CAPITALISM AND FREEDOM xiv (3d ed. 2002)) (emphasis added). See also, THE SHOCK DOCTRINE, at 8:00 (Renegade Pictures & Revolution Films 2009) [hereinafter SHOCK DOCTRINE film] (Naomi Klein, reading from FRIEDMAN, supra , during a lecture at the University of Chicago in October, 2008), available at http://www.youtube.com/watch?v=SrpA46YS7P0 (emphasis added). 7 SHOCK DOCTRINE film, supra note 6, at 68:00 (quoting Naomi Klein at a lecture at Loyola University, Chicago, 2009). 8 The chief attribute of crisis legislation acts is that they exploit a crisis (real or perceived) to pass a previously politically impossible bill. See infra Parts IV–V. Additionally, acts of crisis legislation usually—but not always—pass too quickly for a full and proper debate on the matter; prey on the fears of American voters; are largely unrelated to their claimed purpose; have drastic unintended consequences that become entrenched in the American legal system; have catchy and voter-friendly names; have few critics that are often vocal and perceptive; and require more the appearance of action than the efficacy through action. See id. Beside the content of the policy, a major difference between crisis legislation and Naomi Klein’s disaster capitalism is that crisis legislation is borne not out of design, but rather out of the best of intentions. See KLEIN, supra note 5, at 6 (“I call these orchestrated raids on the public sphere in the wake of catastrophic events, combined with the treatment of disasters as exciting market opportunities, ‘disaster capitalism.’”) (emphasis added); id. at 7 (“For more than three decades, Friedman and his powerful followers had been perfecting this very 2015] THE PATRIOT ACT AND CRISIS LEGISLATION 483 Klein brands “disaster capitalism” 9 and is a tradition as old as the republic itself. 10 This type of “disaster lawmaking” is responsible for helping shape the legal framework of the United States. Perhaps no single act of Congress better exhibits the well-rehearsed choreography of crisis legislation than the USA Patriot Act of 2001 (Patriot Act). 11 Passed in the frantic weeks following the terrorist attacks of September 11th, 2001, the Patriot Act ostensibly empowered the government to prevent future terrorist attacks. 12 In reality, the Patriot Act was a monstrous, sweeping piece of legislation that reshaped the landscape of government-ordered surveillance, possibly irrevocably. 13 Many of the Patriot Act’s provisions that were criticized 14 were only incidentally related to the terrorism that the Patriot Act purported to stop—both in practice and by design. 15 When faced with the task of fixing the leaks in the U.S. intelligence boat, Congress decided instead to buy a bigger boat. Nearly twelve years since its enactment, the Patriot Act’s legacy is complex and its history is turbulent. Despite the questionable behavior surrounding the U.S. government during and in the wake of its passage, 16 the Patriot Act still enjoys a great amount of bipartisan support in the face strategy.”). One could take a more cynical view on the unintended consequences of crisis legislation, but there is a dearth of evidence to support that view. 9 KLEIN, supra note 5, at 6. 10 See Sedition Act of 1798, ch. 74, 1 Stat. 596, 596–97 (expired in 1801). See also Natsu Taylor Saito, Whose Liberty? Whose Security? The USA Patriot Act in the Context of Cointelpro and the Unlawful Repression of Political Dissent , 81 OR. L. REV. 1051, 1066–67 (2002) (“The Federalists who enacted the 1798 Alien and Sedition Acts claimed the acts were necessary because of the increase in U.S.-French hostility . . . . As it turned out, only Republicans were prosecuted under the Sedition Act, and they were clearly prosecuted for political––not security––reasons.”) (footnotes omitted); David B. Kopel & Joseph Olson, Preventing a Reign of Terror: Civil Liberties Implications of Terrorism Legislation , 21 OKLA. CITY U. L. REV. 247, 252 (1996) (“In the United States, there is a long, sad history of interest groups or government officials taking a few isolated incidents and inflating them into some kind of vast threat, requiring an immediate, repressive response.”). 11 USA PATRIOT Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (codified as amended in scattered U.S.C. titles 8, 12, 15, 18, 20, 31, 42, 47, 49, and 50) [hereinafter USA Patriot Act]. 12 See infra Part III.A. 13 See infra Part V. 14 See Saito, supra note 10, at 1114–15. 15 See infra Part III.A. 16 See infra Part VI.C. 484 CAPITAL UNIVERSITY LAW REVIEW [43:481 of its impassioned detractors. 17 The prevailing ambivalence toward the Patriot Act over a decade after its passage is a fitting tribute to the confusion and uncertainty that are characteristic of the War on Terror and other instances of crisis legislation. The Patriot Act is quick to provoke vigorous debate by those eager to demonize or defend it on its merits; 18 but this Article is interested in the Patriot Act only as an illustrative example of crisis legislation and its inherent concerns. First, one must reimagine the moments of September 11th, 2001 (9/11) to recreate the tense political climate in the United States and the fragile, frightened psyche of the American people that precipitated it. 19 The failures that culminated in 9/11 should have inspired strategies to craft a true “antiterrorism” bill. 20 Instead, what transpired will show how the Patriot Act was force-fed through the legislative process—even when its provisions were not adjustments to the letdowns causing 9/11, but items that had long been on a “wish list” for prosecutors. 21 Other examples of crisis legislation will smear broad brushstrokes alongside the Patriot Act that paint a picture of how crisis...