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Hard Choices and Dirty Hands Dilemmas:
The Implications of the USA Patriot Act

Breena E. Coates, Ph.D.
School of Public Administration & Urban Studies
San Diego State University

I. Introduction

Many social dilemmas, such as abortion, euthanasia, gun control etc., are really fundamental questions of ethics. These quandaries of values involve the clash of ideals, between for example, individual and collective choice. In a pluralistic society, such as ours, such conflicts are inevitable and generally useful[1]. Yet the net result of this multiplicity of interests, makes administering public policies that much more difficult (Madsen and Shafritz, 1992). It is difficult because on the one hand we have the teleological politically based ideals of security and stability that are embedded into the legislation, which no reasonable person can dispute. On the other hand, we have the deontological, obligation-based concepts of liberty, equity, due process, freedom of speech, privacy, etc., are values that are often compromised in the process of administering and managing public policy.

Following the terrorist activities of September 11, 2001, we, the people, and our government face another such quandary-the issue of national safety and security on the one hand, and individual rights and liberties on the other. American citizens were devastated over the September 11, 2001 terrorist attack on the nation, not only for its human toll, which was painful enough, but also for the collateral demise of the sense of security and invulnerability within this nation. This sense of security had been given a massive blow with the 1993 bombing of the World Trade Center, and the latest attacks on the civilian population in the United States was its death knell.

In order to restore security and stability Congress passed the USA Patriot Act (USAPA) also known as the Anti-Terrorism Bill. President Bush signed this into law on October 26, 2001. The intent of this bill is stated as follows: 鄭n Act to deter and punish terrorist acts in the United States and around the world, to enhance investigatory tools, and for other purposes. This bill has laudatory political ideals behind it. Its very name-the USA Patriot Act-makes a plea for patriotism, and also secondarily, makes it difficult to criticize such a bill for fear that one might not be considered patriotic. Yet in a free and open democracy such as ours, other worldviews inevitably and simultaneously prevail regarding liberty costs. While deterrence as the objective of this new law is supported by all, many believe that the passage of this anti-terrorism law has deeper implications for the political curtailment of individual rights in this country. Critics of this bill assert that legislation was rushed through Congress without adequate study and expert testimony on the vast majority of sections included therein. The bill, consisting of Titles I-IX, is 343 pages long. It makes changes to over 15 statutory laws in small and large ways. The act substantially increases the police power of domestic and international U.S. law enforcement and intelligence agencies. Because it has eliminated many of the checks and balances[2] that allowed the judiciary to ensure that state police power is not abused, this bill has come under strong fire from civil libertarians. The Center for Democracy and Technology (CDT) notes, 典here is potential for serious collateral damage to our constitution.

A similar sentiment was earlier expressed in Brown v. Glines, (1980)[3] when Justice William Brennan observed, The concept of military necessity is seductively broad and has a dangerous plasticity. Because they invariably have the visage of overriding importance, there is always a temptation to invoke security 創ecessities to justify an encroachment upon civil liberties. For that reason, the military-security argument must be approached with a healthy skepticism.

However, those who support the legislation say that in this instance-i.e., a time of great trauma to the nation--there were an array of choices that the government faced none of which could have been considered optimum. In choosing between alternatives, they chose the one that does the least harm. This is the 斗esser-of-evils principle (Madsen and Shafritz, 1992) that is often used as a satisficing (Simon, 1991) approach to alleviation of complex, ill-structured problems[4] (Mitroff and Sagasti, 1973) in public policymaking. They too may see this legislation as a slippery slope and one that would benefit from debates, dialectics, and other means, in order to determine how to prevent the slope becoming steeper and slipperier[5]. Both sides of the debate face the quandary of values in public policymaking that involves choosing between values-i.e., between the social good of security and stability vs. the individual good of liberty--each of which on its own would be considered desirable.

II. Collateral Damage to Intellectual Liberty

Intellectual freedom of expression is one of the liberties that are likely to take a hit from the USAPA. This includes the freedom of universities, and individuals and groups within them. A number of issues are worrisome in this regard. These are divided into general concerns and specific concerns:

2.1. General Concerns:

2.1.1. Generating a Suspect Class: It must be acknowledged that the government has done an excellent job in reaching out to communities via television and other advertisements, asking the general population to refrain from unfairly targeting minority citizens who are either Middle Eastern, or look Middle-Eastern. This followed in response to several incidents around the country where people were randomly selected for targeted for retaliation based entirely on visual characteristics-color, physiognomy, and dress[6].[7] Schools, colleges and universities are some of the common venues where Middle-Eastern, and other races, in addition to those who might simply look Middle-Eastern generally cluster. Thus, universities, colleges and schools were closed after the bombings because of death threats, bomb threats and fears for safety. Yet, now by targeting what amounts to as a suspect class, without proper legal safeguards provided statutorily and constitutionally, the government may well be doing what the Taliban has done-i.e., to make anyone a target, regardless of who they really are. Examples of the Japanese in America in World War II or internationally, and Chinese-Indians during the Indo-Sino border conflict during the 1960s, come to mind.

2.1.2. Redefinition of Terminology: Amnesty International argues that some of the definitions of 鍍errorism or 鍍errorist used in the legislation are so broad they could be used to criminalize anyone out of favor with those in power. The First Amendment right of freedom of association and expression might well is compromised-especially in intellectual circles (ibid, 11/29/01). The new definition of terrorism and three expressions of the term have been expanded. In Sec. 802 the definition of domestic terrorism raises concerns for intellectuals engaged in legitimate protect activity, which would result in terrorism charges, especially if there is violence that has occurred. The Patriot Act expands other definitions of terrorism for terrorism transcending national borders, and federal terrorism, which will expose more intellectual activity to surveillance and liability for 塗arboring and 杜aterial support.

2.1.3. Destruction of Presumption of Innocence: One cannot help but agree with Attorney General Ashcroft痴 claims that individuals who commit terrorist acts must be apprehended and brought to justice swiftly. Yet the Patriot Act sweeps in with a very broad brush even 都uspects into this class of people-i.e., those who have not yet been proven guilty. This circumvents the guarantees under the Sixth Amendment[8] of the Bill of Rights that accrue to any individual in a civilian or military court. However, the Patriot Act sweeps in suspects with too broad a brush-thus circumventing the presumption of innocence. In this case can a professor or graduate student-particularly one of a suspect class, be hustled away to a military tribunal without the proper constitutional guarantees and simply locked up summarily? When there are civilian courts functioning, why must trials be held in military courts?

2.2.2. Specific Concerns:

2.1.1. Increased Surveillance: The legislation extends surveillance powers from written records to electronic sites. This in itself is not out of order. Government must keep up with current technology use, and unlike prior anti-terrorist statutes, today much of the work of higher education is conducted electronically. How will the field hands measure intellectual curiosity, which is the backbone of research? The government now may tell a judge that someone is a suspect merely because they have peeked at him or her browsing the web and that the information being sought is 途elevant for criminal investigation. Furthermore the government is not obligated to tell the individual that is doing a sneak peek. For example, might a professor teaching about terrorism, have a module of her curriculum picked up at random, without regard for the entire content, and she herself become a target for surveillance? Any number of courses in the areas of political science, sociology, and other related disciplines can and do carry such material. In doing her professional duties and carrying out her research, were she to attend some political rally would she be under more scrutiny? Herein lies the worry over interpretation of the data. What about medicine or biology, where a student or professor doing legitimate research on a suspected pathogen? Already these people are subjected to various kinds of research controls. Can the federal government now step in and search and seize laboratory research? It is easy to see how the problem could escalate. Under this legislation, Internet Service Providers (ISPs), network administrators, and organizational elites can authorize surveillance of 田omputer trespassers with judicial order. The FBI and the CIA can also go from one phone to another, and one computer to another without showing of relevance of criminal investigation.

2.2.2. Invasions of Privacy: An intellectual being interrogated is no longer entitled to attorney-client privilege, where discussions between the two are held in confidence. Furthermore, university lifestyle is conducive to mixed racial marriages. Will the federal government now be permitted into the bedrooms of a faculty member who is married to a person from a suspected class to ensure safety and stability of the nation?

2.2.3. DNA Samples: In Sec. 503 the executive branch can add collection of DNA from known terrorists. This is a legitimate activity. However, the section also allows for collection of DNA from any person suspected of 殿ny crime of violence. Might this not be construed as unwarranted search and seizure, forbidden under the Fourth Amendment of the Constitution?

2.2.4. Military Tribunals: Concern over military tribunals is expressed especially when civilian courts are functioning appropriately. The restrictions of a military tribunal will further impact judgments on so-called 都uspect individuals.

III. Power, Security and Liberty

3.1. Assumption of Extra Powers by the Executive Branch? There are those who see the USPA as an exercise in assumption of prerogative powers for the Presidency. This theory of executive privilege was espoused by John Locke in his Second Treatise of Government, 1690 where he noted: many things there are which the law can by no means provide for; and those that must necessarily be left to the discretion of him that has executive power in his hands. President Abraham Lincoln used this theory of executive power in supporting assumption of dictatorial power during the civil war. Here Lincoln saw it fitting for the executive not only to exceed the constitution but also perhaps to even go beyond constitutional bounds.[9] Since then when other presidents have sought similar arguments to go beyond the constitution the Supreme Court has checked these assumptions of executive privilege.[10] As noted by Shafritz & Russell, 套the theory of executive power is quietly reserved to support the efforts of a leader who sees the nation through a time of crisis; or alternatively, it lurks in the hands of an unprincipled opportunist or demagogue to stifle republican institutions (ibid, 48, 2000) ...Many view this as being counter to the provisions of the 10th Amendment of the US Constitution, which states: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Peter A. French has noted that even though public officials such as presidents must engage in acts that for the rest of humanity are morally wrong, they could be exonerated and not be condemned, for they do these acts in the name of all citizens and with our implicit consent. Their wrongs as Walzer has noted is unique, unlike the wrongs of ordinary citizens. However, the act in itself is never right and still to be considered as wrong. If the wrongs amount too greatly, such individuals need to punish themselves by resigning from office. Since public policies like the USAPA are, in fact, social experiments, time will tell how much wrong will occur. In this case, either the provisions will be sunsetted, or there may be so much hue and cry that officials must resign in response to democratic demands.

3.2. Enlarged Role for the Federal Government: When Health and Human Services Secretary Tommy Thompson was Governor of Wisconsin, he was one of those who called loudly for states rights, noting that the federal government was growing too powerful and that states had to go to Washington on bended knee 鍍o kiss the ring (Shafritz, Russell, 174, 2000). Today, he and other Republicans in the administration uphold the competing doctrine of federalism to the letter, with even greater powers to the federal government as shown in the USAPA. On the other side, civil libertarians claim that this bill circumvents the First, Fourth, Fifth and Sixth Amendments to the Constitution, and lays the framework for a police state. It gives the federal government large powers to target anybody who is deemed a threat to its authority. They argue that the statute goes well beyond the scope of fighting terrorism.[11] Local governments are protesting the law. In Portland, Oregon for example, use the 鄭nti-McCarthyism doctrine when they assert that the 賭uestions (i.e., police questioning of students and other individuals who are not associated with any crime) 堵o too far. Oregon痴 Attorney General has declared that police departments should not have to do this. Police Chief Mark Kroeber agrees. Similar local government fears of the USAPA have been expressed in Eugene, Oregon, Washington State, San Francisco and San Jose (Leherer News Hour, 12/17/2001).

IV. The Dirty Hands Dilemma

Quandaries of ethics such as those inherent in the USPA 2001 are teleological and utilitarian based on costs and benefits. In this case as in others, someone benefits more, even if at a minuscule level, than someone else. The one that loses, and in this case may lose grievously if civil liberties were denied as shown above. Yet what is government to do? As noted by the Communist leader in Dirty Hands, 的 have dirty hands right up to the elbows. I致e plunged them in filth and blood. Do you think you can govern innocently? (Sartre 1955). The question is that if the politicians have dirty hands, it is by our consent that they are there and by our consent that public policies are promulgated.

The dirty hands dilemma is a perennial problem in implementation of the law of the land. Public officials 電irty their hands when they implement the law in a wrong way to promote the greater social good. The issue surrounds the dilemma involved in administrative commitment of a wrong to further good political ideals. What a public agency or agent must do to further a political ideal might directly clash with moral values. This is particularly evident in the administration and implementation of the USPA. Here the Machiavellian principle of utility 努hen the act accuses, the result excuses, (The Prince,) comes into play. However as Madsen and Shafritz point out (1992) two additional, bipolar, issues must be taken into account in discussing the problem of dirty hands. Firstly, since public officials act with our consent and on our behalf, how can they be accountable for something that is simply a requirement of the role? This is the well-known functionary argument used by Adolf Eichmann[12]. Secondly, and in contradiction to this view, is the notion that moral obligation is still applicable to the public officer doing the wrong (Madsen and Shafritz, 210, 1992).

Finally there is the issue, taken up in the next section on executive privilege as to whether it is permissible to do wrong when the country is in crisis in order to make the situation right again? This argument stems from the famous Platonic noble lie. These are difficult issues. Let us see if we can tease out some reasoning in the case of the USAPA for the dirty hands dilemma.

V. Conclusion

The tension between strong government that can provide security, versus the liberty interest of individuals is a concept as old as the foundations of the country itself. The Founding Fathers worried about how they could make security and stability compatible with democracy (Diamond,), which they saw as having dangerous propensities to folly, feebleness, ignorance, not to mention tyranny of majorities. On the other hand they also feared that the strong and stable administrative structure needed to carry out public policy might well hinder its original democratically derived intent. Indeed, despite these concerns the framers did make, as Tocqueville noted, democracy safe for the world (as safe as it could be) with a system of checks and balances, and levels of government in the federal system. Yet, throughout our history, as a nation, we have worried about powerful government vesting itself with more powers, versus individual freedoms and liberties guaranteed by our constitution. Such is the issue seen in the Patriot Act. No one can argue that the country needs security from terrorist attacks, but how do we secure this without endangering some liberty interests? Those whose liberty is denied in these circumstances could well ask whether the majority, who has consented, via the national principles of sovereignty and republicanism, are in fact respecting liberty of others. It is a thorny issue.

Are we as a nation too nave that we give consent to our leaders to promulgate policies, yet shudder from the full ramifications them? We want a clean house, but abhor the dirty tasks involved in cleaning it. Yes, it is not a perfect world and we compromise and satisfice because as yet we have no formula for optimization. Yet the issue does not rest here. It is appropriate to be vigilant and to monitor to what extent we must dirty our hands on individual liberty issues to achieve collective good, for we do have correlative responsibility to be cautious about strong government, lest it get out of hand. Thus when we, through our various watchdog agencies note: governments must not use the 層ar on terrorism to introduce draconian measures that limit civil rights and allow violations of human rights. Such measures are likely to stifle dissent and curtail basic freedoms. For this reason they must be resisted. (Amnesty International, 11/29/01) we are not being unpatriotic, merely watchful. In similar vein, when Katz notes, we must not sacrifice our most fundamental principles or we run the risk of losing our freedom even at the same time that we prevail over those who hate us for our very system of freedom (Jurist, 11/29/01), he is being appropriately cautious as well.


Bibliography

Amnesty International, 11/29/2001

Brown v. Glines 444 US 348, 1980

Diamond, M., The Founding of the Democratic Republic, 1981, F.E. Peacock Publishers, Ill.

Dunn, W.N., An Introduction to Public Policy Analysis, 1981, Prentice-Hall, N.J.

French, P.A., 泥irty Hands, in Ethics in Government, 1983, Prentice-Hall, N.J.

Katz, J. The Jurist, 11/29/01.

Leherer News Hour, 12/17/2001.

Locke, J., The Second Treatise on Government, edited with an introduction by T.P. Peardon, 1952, Liberal Arts Press, N.Y.

Madsen, P.A. and J.M. Shafritz, Essentials of Government Ethics, 1992, Meridian Publishers, N.Y.

Mitroff, I.I., and F. Sagasti, 摘pistemology as General Systems Theory: An Approach to the Design of Complex Decision-Making Experiments, in Philosophy of the Social Sciences 3(1973) 117-34.

Plato, The Republic (c.370 B.C.)

Sartre, J.P., No Exit and Three Other Plays, 1955, Vintage Books, N.Y.

Simon, Herbert, Models of My Life, Basic Books, N.Y.

The Center for Democracy and Technology, 11/29/2001.

The Federalist 51

The United States of America Patriot Act, 2001.

Tocqueville, A. Democracy in America, Colonial Press, 1899, N.Y.

Youngstown Sheet and Tube Co. v. Sawyer, 1952.



[1]Here 砥seful is drawn from James Madison痴 theory of the utility of a multiplicity of interests, in which he claimed would have a moderating influence on special interests to the benefit of democracy. As Madison noted in his famous argument for democratic government: In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good. Federalist 51.

[2] Many of these checks and balances were put into place after previous abuses of surveillance powers of such agencies-particularly the issue of spying by the FBI and others on civil rights activists, including Dr. Martin Luther King-that came to light in 1974.

[3] Brown v. Glines, 444 US 348, 1980.

[4] 的ll-structured problems are those which typically involve many different decision makers whose utilities (values) are impossible to rank in consistent fashion...the main characteristic of ill-structured problems is conflict among competing goals. Ill-structured problems have preference rankings that are intransitive. (Dunn, 1981, p. 104-106)

[5] One method, they claim, to halt the slippery slope is to sunset the provisions of this act in 2005-yet there are those who wonder whether the provisions will be actually sunsetted, or simply extended indefinitely.

[6] Amnesty International documented 250 incidents on Sikhs[6] (11/29/2001) and 540 incidents on Arab-Americans in the week following the hijackings

[7] Amnesty International documents incidents of mosques and Hindu temples that have been fire bombed. Incidents in the United States have included Yemeni-Americans, Sudanese, and Christian Middle-Easterners (11/29/01)

[8] Amendment VI: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and be informed of the nature and cause of the accusation; to be confronted with the witness against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of Counsel for his defense.

[9] Lincoln noted: was it possible to lose the nation and yet preserve the Constitution? By general law, life and limb must be protected, yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures otherwise unconstitutional might become lawful by becoming indispensable to the preservation of the Constitution through the preservation of the nation.

[10] In Youngstown Sheet and Tube Co v. Sawyer, 1952, the Court held that that President Truman had exceeded his powers. Later when President Nixon in 1974 claimed that the Constitution provided him with absolute and unreviewable executive privilege-i.e., the right not to respond to a subpoena in a judicial trial for his tape recordings in the Oval Office, the Court, however, forced the President to turn over the tapes, an event that led to the resignation of Richard Nixon from presidential office.

[11] Ramifications of this law are far-reaching in their influence. One of the countries that complain that their freedoms have been compromised is Egypt, where it is believed that under coercion by the American government, legitimate, non-terrorist organizations are being targeted and marginalized (Leherer News Hour, 11/30/02).

[12] The Nazi criminal Eichmann痴 defense for his atrocities perpetrated on Jewish people during WWII was I was only following orders.


Author Info: Breena E. Coates, Ph.D.

January 16, 2002

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