The Patriot Act After Two Decades, Two Conservative Verdicts Compared

Ninety-eight to one. That was the vote in the United States Senate on October 25, 2001, to pass a bill whose full name is a feat of engineering in its own right: the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act. The House had passed it the day before, 357 to 66. President Bush signed it on October 26. The Capitol was under an anthrax scare, the Pentagon was still being repaired, and a country that had watched the towers fall wanted something done. Someone had to find an acronym that spelled PATRIOT, and Congress found one.

Twenty-five years on, the argument over that law is one of the most useful arguments inside the conservative movement, because both sides invoke the same text, the Fourth Amendment, and both have a case. This post is a comparison. I will lay out the security view and the liberty view at full strength, put the disputed provisions in a table, walk through the history from 2001 to the lapse of Section 215 in 2020, and then say where I come down. A movement that cannot state its own disagreement fairly cannot resolve it.

The text that both sides rely on

Start where the Founders started. The Fourth Amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It has two clauses, and the two sides of this debate each lean on one. The first clause forbids unreasonable searches. The second says that warrants need probable cause and particularity. The security view says that the first clause leaves room for reasonable, narrowly tailored measures against a foreign enemy. The liberty view says that the second clause was written precisely to stop the government from collecting broad categories of papers without naming a target.

The history behind the words matters. In 1761 the Boston lawyer James Otis argued against the writs of assistance, general warrants that let customs officers search any house for smuggled goods. In England in 1765 the case of Entick v. Carrington held that a Secretary of State could not ransack a man's papers on his own authority. The American Founders carried both lessons into the Bill of Rights. They were not naive about threats; they had just fought a war. They simply believed that the surest way to destroy a free people is to give the government a general power to look through their papers on its own say-so.

Madison offered the other half of the lesson in Federalist No. 51: "If men were angels, no government would be necessary." The sentence continues: "In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself." The security view is about the first half. The liberty view is about the second. A wise conservative holds both halves.

What the law did

The Patriot Act was a large bill that touched many statutes. Most of it was uncontroversial, and some of it, such as stiffer penalties for terrorism offenses and tools to track terrorist financing, drew little objection from either wing of the right. The fights concentrated on a handful of provisions.

Section 215 amended the Foreign Intelligence Surveillance Act of 1978 so that the FBI could ask the secret Foreign Intelligence Surveillance Court for an order requiring the production of "any tangible thing," such as business records, in a terrorism or foreign intelligence investigation. Before the Act, the reach was narrower. After the 2006 reauthorization, the standard was that the items had to be "relevant" to an authorized investigation.

Roving wiretaps (Section 206) allowed surveillance to follow a target across different phones and devices, rather than being tied to a single line, when the target was likely to change them to evade detection.

National security letters (Section 505, building on earlier statutes) let the FBI demand certain records, such as telephone and financial records, from companies without going to a judge first, and often with a gag order on the recipient.

Information sharing (Sections 203 and 218) let intelligence and law-enforcement officials share what they knew and replaced the requirement that foreign intelligence be "the" purpose of a FISA order with the requirement that it be "a significant purpose." That change helped tear down the wall that the 9/11 Commission later described. See The 9/11 Commission Found a Failure of Imagination, Read Its Real Lessons for that story.

Many provisions were set to expire, or "sunset," at the end of 2005, which is a sign that the drafters themselves thought these were emergency powers to be revisited.

The comparison, in a table

The security view at its strongest

The best version of the security argument has four parts, and I will state them without caricature.

One, the enemy is real and patient. The attacks of 2001 were planned over years, by an organization that said openly it wanted to kill Americans. The Commission found that the government had failed to connect information it already held. A free country that cannot connect its own dots will lose people it could have saved.

Two, many of the tools have analogues in ordinary criminal law. Grand-jury subpoenas for business records have existed for generations. Roving wiretaps for organized crime were authorized in 1986. If a drug ring can be investigated this way, a terror cell ought not to enjoy greater protection.

Three, the Supreme Court's own doctrine gave the government room. In Smith v. Maryland (1979), the Court held that a person has no reasonable expectation of privacy in the numbers he dials, because he voluntarily gives them to the phone company. On that reasoning, call records are not "his" papers in the constitutional sense. The government's lawyers leaned on that reasoning for years.

Four, the checks were not absent. The orders required judicial approval, the Act required reporting to Congress, and the whole thing came with sunset clauses. The system was imperfect, but it was not lawless.

The liberty view at its strongest

The liberty argument is just as serious, and it comes from some of the most dependable constitutional conservatives in the country.

One, the text matters. The Fourth Amendment's warrant clause was written to forbid general searches. A process in which a secret court approves demands for "any tangible thing" on a showing of relevance looks too much like what the Founders opposed. The more the government can obtain without naming a particular person and a particular suspicion, the more the amendment has been hollowed out.

Two, power accumulates and is rarely surrendered. A tool created for terrorists will be used on others, since the same bureaucracy runs the whole of law enforcement. National security letters, for example, were used in thousands of cases, and the Justice Department's own inspector general later criticized the FBI's handling of them. When the government is trusted with a tool, the burden should be on the government to show the tool is needed and used properly.

Three, secrecy corrodes self-government. For years the public did not know how the government interpreted Section 215. The interpretation was classified. A citizen could not argue against a law whose meaning he was not allowed to know. That is a problem for a republic, because the people are supposed to be the sovereign.

Four, the same technology that makes collection easy makes its abuse easy. A record of every call a person makes, aggregated over years, can reveal a person's associations, habits and beliefs in a way that a single wiretap never could. The Court said something like this in Carpenter v. United States (2018), when it held that the government generally needs a warrant to obtain a person's historical cell-site location records, a narrow ruling that nonetheless signaled that old doctrines had limits in the digital age.

The story from 2001 to 2020, in order

October 2001. The act passes with large bipartisan majorities, with sunsets.

2005 to 2006. Congress reauthorizes the expiring provisions in March 2006, and later extensions follow.

June 2013. Newspapers published a secret FISA court order, dated April 2013, directing a telephone company to turn over, daily, the call-detail records of its customers. The government explained that it was collecting call records in bulk under Section 215. The disclosures came from Edward Snowden, a government contractor who took classified material and fled the country, which is a separate legal and moral question from the one the documents raised. Many Americans, including many who had supported the Act in 2001, learned only then that the word "relevant" had been read to cover essentially everyone's call records.

May 2015. The Second Circuit Court of Appeals held in ACLU v. Clapper that Section 215 did not authorize the bulk collection program, reading the statute's word "relevant" as not stretching that far.

June 2, 2015. Congress passed the USA FREEDOM Act, which President Obama signed. It ended the bulk collection of call records under Section 215 and replaced it with a system in which the government asks the phone companies, using a specific selection term, for the records connected to particular targets, and it made other changes, including to the national security letter gag-order process. The law passed after the authorities briefly lapsed in a Senate fight over renewal.

March 15, 2020. Section 215, the roving wiretap authority and the "lone wolf" provision all expired when Congress did not agree on renewal. The House had passed a reauthorization bill with new protections, the Senate passed a different version, and the effort stalled amid the pandemic and a dispute over additional limits. The authorities lapsed. FISA's other major authority, Section 702, which covers foreign targets abroad, is a separate statute with its own debate.

It is worth pausing on the lapse, because it tells you something about the right. It was not a simple partisan standoff. Limited-government conservatives joined civil libertarians on the left in deciding that the powers should not be renewed without more protections, and the security wing replied that the country had never gone without these authorities since 2001 and should not do so lightly. Both arguments were heard inside the Republican conference.

Where the two conservative camps actually disagree

Many conservatives who supported the 2001 act and many who opposed its renewal agree on more than they think. They agree that the government's first duty is to protect Americans. They agree that the Fourth Amendment binds. They agree that the executive branch should answer to Congress. What they disagree about is a question of fact and a question of design.

The fact question: did the bulk and secret tools actually prevent attacks that ordinary tools could not? The government's own Privacy and Civil Liberties Oversight Board reported in January 2014 that it had not identified a single instance in which the bulk call-records program made a concrete difference in the outcome of a counterterrorism investigation. The security camp replies that deterrence and speed are hard to measure and that counting foiled plots is a poor yardstick of value.

The design question: when power is necessary, how do you keep it from drifting? The liberty camp says: sunsets, adversarial procedures, public reporting, and specific warrants. The security camp says: operational secrecy, speed, and trust in professionals subject to oversight.

I will tell you where I come down, in the spirit of the document: the Founders' answer was to trust neither side's good intentions and to build a structure in which the powers cannot grow unseen. That points toward the liberty camp's procedures and the security camp's goals. Keep the tool where it is narrow, named and checked. Distrust it where it is broad, secret and unreviewed.

The best objection, answered

The strongest objection to the liberty view is this: the world has not become safer, and a country that gave up useful tools in a fit of privacy worries may regret it. It is a fair point, and it deserves a straight answer.

First, nothing in the liberty position requires giving up the tools that work. It asks that they be narrow, particular and reviewable. A warrant for a named suspect's records is still available, and so are roving wiretaps on named targets, and the USA FREEDOM Act kept targeted collection. Second, a tool that cannot survive public explanation and judicial review is a tool whose usefulness the government has not yet proved. Third, a republic can afford the risk of an occasional missed lead far better than it can afford the permanent habit of a government that reads everyone's papers. The Founders made that trade deliberately, in the Bill of Rights, after living under the alternative.

What this teaches about emergency law

There is one further lesson, and it is the oldest. Laws passed in a crisis tend to outlive the crisis. The sunset clauses in the 2001 act were a good instinct, and the debate that they forced every few years is the debate the Founders wanted: a periodic, public accounting of what the government is doing in our name. A sunset is a way of making Congress do its job. For a broader look at how Congress used the power of the purse to restrain a war it had once allowed, see How Congress Ended a War with the Purse, the Case-Church Story of 1973. For the executive's side of the ledger, see Commander in Chief Means Less Than Presidents Claim and More Than Critics Say and Youngstown Sheet and Tube Is the Case That Tells a President No in Wartime.

The same principle applies to open-ended military authorization, which is the subject of Sixty Words Passed in 2001 Still Carry America's Wars, and That Is a Problem. Both the Patriot Act and the 2001 authorization for the use of military force were products of the same autumn, and both outlived the mood that created them.

The case in brief

1. The Patriot Act passed the Senate 98 to 1 and the House 357 to 66 in October 2001, with sunset clauses, because Americans wanted the government to connect the dots it had missed.
2. Both conservative camps rely on the Fourth Amendment: one on its word "unreasonable," the other on its demand for particular warrants, and both can cite history.
3. The disputed provisions, Section 215, roving wiretaps, national security letters and information sharing, each have a fair security defense and a fair liberty objection, as the comparison table shows.
4. The 2013 revelations about bulk call records, the 2015 USA FREEDOM Act ending that bulk program and the March 15, 2020 lapse of Section 215 show a republic arguing its way toward narrower tools.
5. The Founders' answer is a structure: keep powers narrow, named, reviewed and periodically renewed, because Madison's second duty is to oblige the government to control itself.

What you can do: read the Fourth Amendment, then look up on Congress.gov how your House member and senators voted on the USA FREEDOM Act of 2015 and ask them to explain it.