Syracuse University Syracuse University
SURFACE SURFACE
Syracuse University Honors Program Capstone
Projects
Syracuse University Honors Program Capstone
Projects
Spring 5-1-2005
The USA PATRIOT Act and the Alien and Sedition Acts A The USA PATRIOT Act and the Alien and Sedition Acts A
Comparative Analysis Comparative Analysis
David Wicclair
Follow this and additional works at: https://surface.syr.edu/honors_capstone
Part of the American Politics Commons, and the Other Political Science Commons
Recommended Citation Recommended Citation
Wicclair, David, "The USA PATRIOT Act and the Alien and Sedition Acts A Comparative Analysis" (2005).
Syracuse University Honors Program Capstone Projects
. 696.
https://surface.syr.edu/honors_capstone/696
This Honors Capstone Project is brought to you for free and open access by the Syracuse University Honors Program
Capstone Projects at SURFACE. It has been accepted for inclusion in Syracuse University Honors Program Capstone
Projects by an authorized administrator of SURFACE. For more information, please contact surface@syr.edu.
1
Chapter 1
The USA Patriot Act
Only forty-eight days removed from the horrific events that transpired
in New York City, Washington D.C., and Pennsylvania on September 11,
2001, the United States Congress quickly responded and passed an act known
as the USA PATRIOT Act (an acronym that stands for “Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism”).
1
The Act, which I shall refer to as the “Patriot Act,”
sought to tighten security measures in the United States by giving the
executive branch new power that would serve to prevent future terrorist
attacks on American soil. It was passed with little debate by a margin of 98-1
in the Senate and 357-66 in the House of Representatives.
2
Some of the more
liberal Congressmen who were uneasy about the possible consequences that
the Act would have on the civil liberties of Americans had to settle for the fact
that more than a dozen of the more controversial sections of the 1, 016-section
act would “sunset,” or expire at the end of 2005.
3
However, a large number of
sections of the Patriot Act have been permanently written into law.
At the time of passage, just weeks after Sept. 11, a wave of patriotism
swept the nation. Little emphasis was placed on discussing the possible
drawbacks of the national security legislation. Indeed, with the anthrax
1
USA PATRIOT Act ([cited April 16 2005]); available from http://thomas.loc.gov/cgi-
bin/query/z?c107:H.R.3162.ENR:. All references to the USA PATRIOT Act are to this
Library of Congress Web site.
2
Nancy Chang, Silencing Political Dissent (New York, 2002). 34.
3
"Infringing on Civil Liberties," St. Petersburg Times, October 31 2001.
2
incidents that coincided almost precisely with the Patriot’s Act passage,
American citizens had more than enough to be concerned with already. As the
President’s high approval ratings following 9/11 show, the overwhelming
majority of American people put their trust in President Bush’s ability to
protect them, no matter what the possible consequences to civil liberties. A
December 2001 Boston Globe article reported that recent polls showed
“support for the president, as well as for the use of military tribunals and a
willingness to give up personal freedoms for the sake of national security.”
4
Civil liberties groups such as the American Civil Liberties Union (ACLU)
immediately following the terrorist attacks tried to warn both Congressmen
and the American public of the dangers that could follow from national
security legislation, but it was useless “trying to persuade Americans to hold
fast to concerns about individual freedom and privacy, while the vast majority
of people were terrified.”
5
However, as the months after September 11 began to pass with no
additional terrorist attacks, Congressmen and the American people alike began
to wonder just what the Patriot Act was and how it was being used. As stated
in a February 25, 2004 USA Today article, “nearly 2 ½ years after Congress
passed the Patriot Act, Americans are confused and troubled by the law.”
6
While most Americans support the Patriot Act according to a USA
4
Susan Milligan, "Fighting Terror/National Concerns Keeping Quiet; So Far Politicians'
Dissent Left out of the War," The Boston Globe 2001.
5
Robert O'Harrow, Jr., "Six Years in Autumn; A Year Ago as a Nation Reeled from Attack, a
Battle was Joined for America's Future. Not in Afghanistan. In Washington," The Washington
Post, October 27 2002.
6
Toni Locy, "Special Report: Patriot Act Blurred in the Public Mind," USA Today, February
26 2004.
3
TODAY/CNN Gallup Poll conducted in February 2004, many Americans are
unclear just what the Act does.
7
Further evidence of this frightening ignorance
was provided by a USA Today survey of 501 adults that found that when the
sections of the Act were explained to survey subjects, “71% disapproved of a
section that allows agents to delay telling people that their homes have been
secretly searched.”
8
The Patriot Act is indeed an extremely complex document filled with
pages upon pages of legalese and difficult to comprehend material. As Jeffrey
Rosen correctly asserted in an Atlantic Monthly article, “The act is so
technical and legally complicated that only policy junkies and law professors
have the time to master it.”
9
Nonetheless, the American public’s failure to
understand this significant piece of American legislation is disheartening –
though not completely inexcusable. In fact, the secrecy surrounding the Patriot
Act’s use over the past three and a half years has even left many high ranking
Congressmen wondering how the Act has been enforced, despite frequent
claims made by the Justice Department that there have been no abuses of it.
10
The mystery behind the Patriot Act’s usage and effect on the American public
has fuelled a growing debate about the constitutionality of specific sections of
the Act. Despite some misconceptions, most of the sections of the Act are
quite uncontroversial. Civil libertarians and public interest organizations alike
have tended to focus their concern on the implications of its most
7
Ibid.
8
Ibid.
9
Jeffrey Rosen, "John Ashcroft's Permanent Campaign," The Atlantic Monthly, April 2004.
10
Eric Lichtblau, "Senator Faults Briefing on Antiterrorism Law," The New York Times, April
13 2005.
4
controversial sections. Their efforts have spurred national interest in the Act at
both the state and local level. Indeed, over the past two years, a growing
number of states, towns, and cities have passed resolutions against the Act.
11
However, conservative organizations such as the Heritage Foundation have
been leading the charge against the Patriot Act’s opponents by arguing that the
fears about the Act are overblown and that the Act is necessary for fighting
the war on terrorism. Many advocates of the Patriot Act wish to even see it
further strengthened.
12
Although much of the information about the Patriot Act remains
behind closed doors, by studying its sections, it is possible to analyze how the
Act has or may be used. Moreover, it is crucial to pinpoint how specifically
the Patriot Act has amended prior national security legislation. These steps are
necessary to facilitate an adequate understanding and assessment of the debate
about the Patriot Act. In this chapter, I will explain the most controversial
sections of the Patriot Act and discuss both the arguments for and against
these provisions. At the end of the chapter, I will argue that past instances of
wartime national security legislation – such as the Alien and Sedition Acts –
may be used to help further our understanding of the current debate about the
Patriot Act and to speculate about the likely direction of that debate in years to
come. Chapter 2 will provide a comparative analysis of these earlier acts and
11
Nat Hentoff, The War on the Bill of Rights and the Gathering Resistance (New York,
2003).
12
The Patriot Act: Not the Threat Many Think (The Heritage Foundation, April 7 2005 [cited
April 16 2005]); available from
http://www.heritage.org/press/dailybriefing/policyweblog.cfm?blogid=1E7B1AFB-0E7E-
2186-FFE15A96CF5A97D2.
5
the Patriot Act, and Chapter 3 will consider the future of the Patriot Act in
light of the history of the earlier acts.
Description of Controversial Sections of the Act
Before discussing some of the controversial sections of the Patriot Act,
it is important to realize that much of it comes from national security
legislation that was already in place long before September 11, 2001. Indeed,
the foundation for the Patriot Act has been in place since the Foreign
Intelligence Surveillance Act (FISA) was passed in 1978. Many of the same
surveillance procedures that are dealt with in the Patriot Act were first
addressed with FISA.
13
The similarities between the two acts are undeniable.
However, this is not to say that there aren’t also important differences. In fact,
in most of the controversial sections of the Patriot Act, surveillance powers
given to law enforcement agencies and the executive branch under FISA were
broadened.
14
In dealing with the controversial sections of the Patriot Act that have
significantly altered preexisting national security legislation, civil libertarians
have essentially divided the sections into three categories: sections that pertain
to privacy issues; sections that blur the line between beliefs and terrorism and
infringe upon First Amendment rights; and sections that deal with the rights of
13
Robert P. Abele, A User's Guide to the USA Patriot Act and Beyond (Lanham, Maryland,
2005). 19.
14
Dahlia Lithwick and Julia Turner, A Guide to the Patriot Act, Part 2 (Slate, September 9
2003 [cited December 20 2004]); available from http://slate.msn.com/id/2088106/.
6
non-citizens.
15
Whether or not one agrees with civil libertarian critics of the
Act, these are useful categories, and I shall use them to identify and describe
the Act’s most controversial provisions.
Section 213 is an example of a controversial section of the Patriot Act
that involves privacy issues. It amends a part of title 18 of the United States
Code dealing with the right of a suspect to know that his or her house will be
searched before the actual search takes place. Section 213 eliminates this need
for prior notice and allows for “delay” in notification. The section specifically
says that notice may be delayed if the court that approves the search warrant
finds reason to “believe that providing immediate notification of the execution
of the warrant may have an adverse result.” The section leaves ambigious the
timeframe in which people must be notified of the search, allowing for the
notice withint a “reasonable period” of the warrant’s execution. Moreover,
although the warrant generally doesn’t allow for seizure of property, an
exception is provided to allow for this when the “court finds reasonable
necessity for seizure.”
An important provision of this section of the Patriot Act is its
amending FISA to allow for these so-called “sneak and peak” searches to be
used to gain information for criminal investigations. Although FISA
introduced the use of “sneak and peak” searches, the act only allowed their
15
Chang, Silencing Political Dissent. 43-62.
7
use for terrorism investigations involving “foreign powers or their agents.”
16
This section is permanent and will not sunset in 2005.
17
Section 215 – generally thought of as the most controversial of the
Patriot Act sections – is another section that pertains to privacy rights of
suspects. The section amends Title V of FISA by allowing high-ranking FBI
officials to “make an application for an order requiring the production of any
tangible things (including books, records, papers, documents, and other items)
for an investigation to protect against international terrorism or clandestine
intelligence activities.” The section also requires that a judge grant permission
to gain this information, and that a “semi-annual” report be given to Congress
concerning how many applications were approved and denied.
As it stood under FISA, a court order could be given for FBI access to
“business records of hotels, motels, car and truck rental agencies, and storage
rental facilities” if it was shown that “the person to whom the records pertain
[was] a foreign [sic] or an agent of a foreign power.”
18
However, section 215
of the Patriot Act allows for broader surveillance, and makes it clear that a
“United States person” could be investigated under this section so long as the
investigation “is not conducted solely upon the basis of activities protected by
the First Amendment to the Constitution.” Section 215 is set to sunset in
October 2005.
16
Abele, A User's Guide to the USA Patriot Act and Beyond. 26.
17
Charles Doyle, USA PATRIOT ACT Sunset: Provisions that Expire on December 31, 2005
(Congressional Research Service of the Library of Congress, June 10 2004 [cited April 16
2005]); available from http://www.fas.org/irp/crs/RL32186.pdf.
18
Ibid.([cited).
8
In addition to section 215, section 216 of the Patriot Act has attracted
privacy concerns. The section amends, in numerous places, prior United
States Code to allow for the government to monitor a suspect’s Internet usage
if “the Government has certified to the court that the information likely to be
obtained by such installation and use is relevant to an ongoing criminal
investigation. Like sections 213 and 215, section 216 broadens the scope of
surveillance techniques “to include use of such tools to investigate crimes of
all stripes, not just those related to terrorism.
19
Moreover, the section alters the
definitions of pen registers and trap and trace devices—two devices used to
monitor the source of incoming and outgoing phone calls—to allow them to
apply to Internet material. An important subsection to note is that the
information gained from these devices “shall not include the contents of any
communication.” Section 216 will not sunset in 2005.
20
Section 218 of the Act has been regarded by civil liberties activists
such as Nancy Chang as one of the most controversial and “far-reaching”
sections of the Patriot Act in relation to privacy.
21
The section amends FISA’s
wiretap and physical search provisions by lowering the standard needed to
carry out these surveillance techniques. Whereas under FISA, orders could be
given to use wiretaps if foreign intelligence gathering was “the purpose” of
the investigation, Section 218 of the Patriot Act amended this standard by
striking the phrase “the purpose” and inserting “a significant purpose.”
19
Abele, A User's Guide to the USA Patriot Act and Beyond. 27.
20
Doyle, USA PATRIOT ACT Sunset: Provisions that Expire on December 31, 2005 ([cited).
21
Chang, Silencing Political Dissent. 56.
9
Furthermore, section 206 of the Patriot Act amends the standards laid
out in FISA for using wiretaps by allowing roving wiretap surveillance. What
this means is that communications made to or by intelligence targets can be
monitored “without specifying the particular phone line or computer to be
monitored.
22
This replaces the standard that was in place under FISA, in
which a FISA court could only give an order to monitor specific phones or
computers.
The last controversial, privacy-related section of the Patriot Act that I
shall discuss is Section 203, which concerns the authority to share criminal
investigative information. The section is broken down into four subsections
(a-d) – each of which lays out how information may be shared among
government agencies. Before the Patriot Act was passed, domestic law
enforcement and foreign intelligence surveillance “operated on separate
tracks.”
23
Subsection (a) allows intelligence sharing to occur with grand jury
information. It amends the Federal Rules of Criminal Procedure and allows
for disclosure of information obtained before a grand jury to be provided to
“any Federal law enforcement, intelligence, protective, immigration, national
defense, or national security official in order to assist the official receiving
that information in the performance of his official duty” when “the matters
involve foreign intelligence or counterintelligence, or foreign intelligence
22
Dahlia Lithwick and Julia Turner, A Guide to the Patriot Act, Part 3 (Slate, September 10
2003 [cited December 20 2004]); available from http://slate.msn.com/id/2088161/.
23
John Podesta, USA Patriot Act: the Good, the Bad, and the Sunset (American Bar
Association Human Rights Magazine, [cited April 16 2005]); available from
http://www.abanet.org/irr/hr/winter02/podesta.html.
10
information.” The other three subsections of Section 203 also deal with the
sharing of foreign intelligence information. Subsection (b) allows an
investigative or law enforcement officer to share any information that he or
she attained from “any wire, oral, or electronic communication” pertaining to
foreign intelligence with other such officers. Subsection (d) gives intelligence
officials the ability to use “foreign intelligence information obtained as part of
a criminal investigation.” In order to share this information, no Court orders
are required.
24
There is no sunset clause for this section.
Privacy-related sections of the Patriot Act are not the only parts of the
Act that have gained national attention. Indeed, section 802, which defines the
federal crime of terrorism, has become one of the more controversial
provisions of the Patriot Act because of a fear that it blurs the line between
personal beliefs and terrorism and jeopardizes First Amendment rights.
25
This
is the second of the three categories of controversial provisions of the Act
identified above. In addition to listing a series of crimes which are obvious
examples of terrorism, such as destruction of aircraft or assassinating a public
official, the section provides a general definition of the new phrase “domestic
terrorism,” saying that the term refers to activities that “involve acts
dangerous to human life that are a violation of criminal laws of the United
States or any state” and “appear to be intended to intimidate or coerce a
civilian population” or “influence the policy of the government by
intimidation or coercion.” The major effect of this section is the expansion of
24
Abele, A User's Guide to the USA Patriot Act and Beyond. 25.
25
Chang, Silencing Political Dissent. 39-40.
11
the definition of terrorism to cover domestic as well as international
terrorism.
26
Moreover, section 411, which again deals with the issue of defining
terrorism, has become controversial in that it sets up a “guilt by association”
standard for aliens wishing to enter or stay within the United States
27
Section
411 of the Patriot Act amends the Immigration and Nationality Act to enhance
the government’s ability to use immigration provisions dealing with terrorism
to determine who is and isn’t allowed into the country. A clause within the
section says that any alien who has been determined to be “associated with a
terrorist organization and intends while in the United States to engage solely,
principally, or incidentally in activities that could endanger the welfare,
safety, or security of the United States is inadmissible” to the United States.
The section provides a broad range of actions that fall under the definition of
“engaging in terrorist activity,” including being a member of a social or
political group that publicly endorses terrorism, or simply the act of giving
donations to an organization deemed by the United States government to be a
terrorist organization.
Intertwined with section 411, a third and final category of
controversial sections of the Patriot Act involves restrictions on aliens. One of
these sections – Section 412 – allows for persons suspected of being “terrorist
aliens” to be detained by the Attorney General for a period up to seven days.
26
How the USA PATRIOT Act Redefines 'Domestic Terrorism' (ACLU, December 6 2002
[cited March 15 2005]); available from
http://www.aclu.org/NationalSecurity/NationalSecurity.cfm?ID=11437&c=111.
27
Abele, A User's Guide to the USA Patriot Act and Beyond. 51.
12
If the alien is not charged with a crime or if removal procedures are not
completed in that set amount of time, “the Attorney General shall release the
alien.” However, there is also a clause within the section, providing that those
aliens whose “removal is unlikely in the foreseeable future, may be detained
for additional periods of up to six months” if the release of the alien will
threaten the national security of America. An alien who does not have a
country willing to accept him or her can be detained indefinitely without a
trial.
28
The section does not allow for any judicial oversight, save a successful
petition for habeas corpus by the detained alien.
Criticisms of the Controversial Sections of the Act
Many of the criticisms of the controversial privacy-related sections
focus on a perceived blurring of the line between foreign intelligence
investigations and domestic and criminal investigations. Civil liberties
activists such as Nancy Chang argue that by allowing “sneak and peak”
regulations to pertain to both terrorism investigations and criminal
investigations, section 213 is one such example of this phenomenon.
According to Chang, section 213 “contravenes the common law principle that
law enforcement agents must ‘knock and announce’ their arrival before they
conduct a search—a requirement that forms an essential part of the Fourth
Amendment’s reasonableness requirement.”
29
Moreover, civil liberties
activists have questioned the broad wording of section 213. Although the
28
Dahlia Lithwick and Julia Turner, A Guide to the Patriot Act, Part 4 (Slate, September 11
2003 [cited April 16 2005]); available from http://slate.msn.com/id/2088239/.
29
Chang, Silencing Political Dissent. 45.
13
section notes that the suspect must be informed of the search within a
reasonable amount of time after the search was conducted, it does not specify
what is meant by a “reasonable period.” Moreover, the section has a clause
that says that the “reasonable period” standard may be extended by the court
in circumstances of “good cause.”
30
This lack of a clear-cut time-period, along
with the blurring of the distinction between foreign and criminal surveillance
investigations, has prompted much criticism.
Criticisms of section 215 of the Patriot Act again focus on the ability
of law enforcement officials to implement the provision against American
citizens. As indicated above, section 215 has significantly amended FISA,
permitting records of those who are not the targets of an investigation or an
agent of foreign power to be seized.
31
Former FISA regulations, however,
required evidence that the suspect in question was a foreign power, or agent of
a foreign power, in order to search his or her records.
32
With such broad
categories as “international terrorism” and “clandestine intelligence activities”
civil libertarians worry that everyday American citizens will be subjected to
this section. Moreover, many critics have argued that the section violates the
First Amendment rights of Americans by forbidding anybody who is
approached by federal enforcement officials from speaking about the fact that
information and records were taken for an investigation.
30
John W. Whitehead, "Forfeiting 'Enduring Freedom' for 'Homeland Security': A
Constitutional Analysis of the USA Patriot Act and the Justice Department's Anti-terrorism
Initiatives," American University Law Review 51 (August, 2002).
31
Peter B. Swire, "The Future of Internet Surveillance Law: A Symposium to Discuss Internet
Privacy, Surveillance, and the USA Patriot Act: Surveillance Law: Reshaping the Framework:
The System of Foreign Intelligence Law," George Washington Law Review 72 (August,
2004).
32
Chang, Silencing Political Dissent. 53.
14
The major criticisms of section 216 of the Patriot Act revolve around
the lowering of the standard needed to perform pen registers and traps on
computers to anything “relevant” to a criminal investigation. This provision,
civil libertarians contend, may lead to such tools being used on people who
not only aren’t foreign terrorist suspects, but are also not directly connected to
a criminal investigation.
33
Moreover, opponents of the section point out that
section 216 fails to distinguish between “dialing, routing, addressing, and
signaling information” and “content” when it comes to the Internet. Whereas
telephone dialing information is separate from the content of phone
conversations, e-mail messages include both the senders and recipients
addresses and content
34
This ambuguity gives the government a wide scope of
power in deciding what constitutes “Internet content.”
Again with section 218, opponents claim that the section has lowered
another FISA standard. As the wording of the section indicates, FISA’s
requirement that foreign intelligence information be the sole purpose for
foreign intelligence investigations has been amended in favor of a broader
‘significant purpose’ standard.
35
In essence, this means that a greater
proportion of those who would not have been subject to surveillance under
FISA will now fall under its reach. According to Lithwick and Turner, under
33
Lori Ayotte, Kerry Criticizes Republican Leaders for Stifling Dissent (Associated Press,
March 2 2002 [cited April 9 2005]); available from http://www.ap.org/.
34
Chang, Silencing Political Dissent. 54.
35
Cynthia Brown, ed., Lost Liberties: Ashcroft and the Assault on Personal Freedom (New
York, 2003). 43.
15
Section 218, one is subject to a police search simply if it can be shown that
there is any foreign intelligence component involved.
36
The last two controversial privacy-related sections that I will discuss –
Section 206 and 203 – have also drawn criticisms for relaxing the standards
established with FISA. Civil liberterians fear that the system of roving
wiretaps established in section 206 may lead to the surveillance of unintended
persons who have nothing to do with an ongoing investigation. Section 203,
which allows for the sharing of criminal investigation information among
different government agencies, has opponents concerned that the distinction
between criminal and foreign intelligence investigations may be erased.
37
Returning to First Amendment rights, section 802’s broad definintion
of domestic terrorism has led many civil libertarians to fear that this section
may be used to restrict the activity or even arrest the members of domestic
organizations that actively voice criticism against the U. S. government.
Under the the section’s unspecific definintion, the Secretary of State can
designate any group that has ever engaged in violent activity a "terrorist
organization."
38
The controversy over section 411, which deals with immigration
procedures and the deportation of suspected alien terrorists, arises from the
expansion of the definition of what constitutes a terrorist activity and terrorist
36
Lithwick and Turner, A Guide to the Patriot Act, Part 2 ([cited).
37
Abele, A User's Guide to the USA Patriot Act and Beyond. 25.
38
John Lichtenthal, "The Patriot Act and Bush's Military Tribunals: Effective Enforcement or
Attacks on Civil Liberties?," Buffalo Human Rights Law Review 10 (2004).
16
organization.
39
The section defines “two or more individuals organized or
which engage in terrorist acts” as a terrorist organization and “would allow the
removal of any alien who collected funds or assisted an undesignated terrorist
organization.” However, as many opponents of this section have pointed out,
even many officially designated terrorist organizations perform useful duties
within their society and accept donated money from Muslim charity
organizations.
40
Critics of section 411 contend that it does not distinguish
between the many different reasons that people provide money to terrorist
organizations. They argue that it does not provide an exception for people
who intended to support the philanthropic work of the terrorist organization
and not the terrorist acts themselves. Moreover, civil liberterians have
expressed concern about the retroactive clause of the section. The provision
allows for aliens who gave donations to organizations which at the time were
not deemed to be terroristic, to be deported under section 411 if the
organization is later found to be terroristic.
Section 411 does include a subsection that grants an exception to those
“who did not know or should not reasonably have known of the activity
causing the alien to be found inadmissable under this section.” However, it is
extremely difficult to determine whether an alien indeed did not know of a
terrorist group’s actions or intentions. It is a reasonably safe assumption to
conclude that, when in doubt, the government will play it safe and either
39
Abele, A User's Guide to the USA Patriot Act and Beyond. 30.
40
Charles A. Flint, "Challenging the Legality of Section 106 of the USA Patriot Act," Albany
Law Review 67 (2004).
17
deport or not allow an alien admission into the country if ever they have to
determine the extent of the alien’s knowledge.
Lastly, civil liberterians have expressed dissatisfication over section
412 of the Patriot Act due to the section’s allowance for detained aliens that
have not been claimed by another country to be held indefinately without
judicial oversight, save a review of the detainment by the Attorney General
every six months.
41
Arguments in Support of the Patriot Act
Despite a growing amount of opposition to certain sections of the
Patriot Act, there remains a large contingent of individuals who believe that
the entire Act is necessary to combat the imminent possibility of another
terrorist attack and that it strikes an appropriate balance between civil liberties
and national security. Moreover, many of the politicians who are the Act’s
most avid defenders argue that the civil liberties concerns that have been
voiced against the Act have been blown entirely out of proportion and that the
Act poses no real danger. Indeed, over the past four years, former Attorney
General John Ashcroft and the Bush administration have not only been calling
for the expiring Patriot Act sections to be renewed, but have also been pushing
to strengthen national security legislation further by introducing a second
Patriot Act of sorts (Abele, 69).
Advocates of the Patriot Act primarily point to the inability of the
United States intelligence community to predict and prevent the tragic events
41
Abele, A User's Guide to the USA Patriot Act and Beyond. 31.
18
that transpired on September 11 as a reason why an overhaul of national
security legislation was needed.
42
Thousands of Americans tragically lost
their lives on the morning of September 11, 2001, in part because the
government was unprepared for a terrorist attack on American soil. With the
recent 9/11 commissions, more and more attention has been paid to the
apparent lack of cohesion between the CIA and FBI in sharing vital
information. Indeed, in response to arguments against the controversial
privacy-related sections of the Patriot Act, supporters of the Act generally
contend that the more lax surveillance and investigation standards are
necessary in order to break down the wall that existed between law
enforcement and intelligence agencies. Patriot Act supporters contend that
controversial clauses such as section 218 go a long way in eliminating this
divide.
43
Andrew McCarthy describes the history of the relations between the
CIA and FBI and discusses how the strict restrictions that were placed on each
entity fueled a long-standing rivalry between them that jeopardized U.S.
national security.
44
According to McCarthy, instead of sharing similar
intelligence duties, the CIA and FBI were required to have two distinct tasks.
The FBI was to operate dealing solely with domestic issues of security while
42
James Jay Carafano and Paul Rosenzweig, A Patriotic Day: 9/11 Commission Recognizes
Importance of the Patriot Act (Heritage Foundation, April 15 2004 [cited March 15 2005]);
available from http://www.heritage.org/Research/HomelandDefense/wm480.cfm.
43
Paul Rosenzweig, Alane Kochems, and James Jay Carafano, The Patriot Act Reader (The
Heritage Foundation, 2004 [cited March 15 2005]); available from
http://www.heritage.org/Research/HomelandDefense/loader.cfm?url=/commonspot/security/g
etfile.cfm&PageID=69895.
44
Andrew C. McCarthy, "The Intelligence Mess: How it Happened, What to do About it,"
Commentary (2004).
19
the CIA was to deal with international security issues. He claims that this rigid
divide between intelligence agencies promoted the confusion that made the al
Qaeda terrorist attacks possible.
McCarthy and other supporters of the Patriot Act believe that it will
serve to eliminate the gap that existed between the FBI and CIA and allow
these two agencies to more easily and efficiently perform their security
functions. By improving the means of intelligence gathering, Patriot Act
supporters argue that the Act will ensure that an intelligence failure on the
scale of the September 11 attacks will never occur again. They argue that the
Act will, and probably already has, saved the lives of countless innocent
Americans that would have met a similar fate to those thousands who perished
on September 11, 2001. According to Jeffrey G. Collins, U.S. Attorney to the
Eastern District of Michigan, “(t)he government’s success in preventing
another catastrophic attack on the American homeland since September 11,
2001, would have been much more difficult, if not impossible, without the
USA PATRIOT Act. The Authorities Congress provided has substantially
enhanced our ability to prevent, investigate, and prosecute acts of terror.”
45
The Act may in fact allow the intelligence community to perform their duties
more efficiently by escaping the restrictions that hampered the speed and
effectiveness of investigations. However, its opponents worry about the cost
to American civil liberties that these broader intelligence powers will have.
45
Jeffrey G. Collins, FAQ's and USA Patriot Act (United States Department of Justice, 2005
[cited March 15 2005]); available from
http://search.usdoj.gov/compass?scope=Jeffrey+G.+Collins+Patriot+Act&ui=sr&view-
template=dojsimple&page=1.
20
In response to opponents’ arguments that the Patriot Act infringes on
civil liberties, some of its supporters have indeed conceded this point.
However, they argue that the end of protecting national security justifies these
limitations. Eric Powner and John Yoo argue that the reduction in peacetime
liberties caused by the Act was a reasonable price to pay for “a valuable
weapon against Al-Qaida.”
46
They claim that there are two ways to look at the
proper role of the Constitution during times of national emergency. One, the
“accommodation view,” would allow for a relaxed reading of the Constitution
in order to accommodate for times of national emergency. The second, a
“strict reading,” would not allow for the Constitution to be interpreted
differently, no matter the circumstances. Both Powner and Yoo argued that
the “accommodation view” is the more effective way to look at the role of the
Constitution in response to September 11. In defense of the Patriot Act, they
claim “civil liberties throughout history have always expanded in peacetime
and contracted during emergencies.”
Although some of the Patriot Act’s advocates, such as Powner and
Yoo, don’t dispute the argument that certain of its sections infringe upon
American’s civil liberties, other advocates stress that the Act will not affect
the liberties of American citizens. In a question and answer page about the
Patriot Act on the Department of Justice website, Collins defends many of the
Act’s most controversial sections and discusses how many of the Act’s critics
falsely link issues dealing with enemy combatants, military tribunals and
46
Jerry Crimmins, Professors Defend the Patriot Act (Chicago Daily Law Bulletin, December
12 2003 [cited March 15 2005]); available from
http://www.law.uchicago.edu/news/posner_bulletin.html.
21
attorney-client privilege – to name only a few – to the Patriot Act.
47
As a
Heritage Foundation article notes, “it [the Patriot Act] has become a
convenient shorthand formulation for all questions that have arisen since
September 11 about the alleged conflict between civil liberty and national
security.”
48
Moreover, when asked about how the Patriot Act would affect
civil liberties, Viet Dinh, the former top assistant to Attorney General
Ashcroft, and primary author of the Act, rejected the claim that enhanced
security would mean diminished freedoms.
49
As Dinh said, “It is a mistake to
think of the Patriot Act as overwhelming or Orwellian in government
authority.”
The Continuing Controversy and Historical Precedents
Unlike the weeks directly following the terrorist attacks of September
11, in which the Patriot Act was enacted with little debate, the Act is now the
focus of considerable controversy in the U.S. From receiving attention on
television dramas such as The Practice and Law and Order, to being the topic
of contention on news/interview programs such as Hardball and The O’Reilly
Factor, the debate over the Patriot Act has become a hot topic for politicians,
the media, and the general public. Just this month (April 2005), the Patriot Act
47
Collins, FAQ's and USA Patriot Act ([cited).
48
The Patriot Act: Not the Threat Many Think ([cited).
49
John Caher, "A Summit on the Patriot Act Asks: Has it Gone too Far?," The Recorder 128
(January 30, 2004).
22
has been continuously in the news due to the Congressional hearings in
Washington concerning the expiration of some of the Act’s sections.
50
Unfortunately, despite the increased national attention to the Act,
much secrecy still surrounds how it has been used.
51
Many of the statistics that
would help answer questions about how it has been used have been declared
unsuitable for the public. Only after an all-out assault by civil liberties
advocates such as the ACLU and EPIC has the Justice Department released
any information pertaining to the number of times the most controversial
sections of the Act has been used
52
As Chuck Lewis, the executive director of
the nonpartisan Center for Public Integrity, said in an interview with Bill
Moyers on the PBS talk show “Now,” “there have been 300 roll-backs of the
Freedom of Information Act since September 11
th
…all over America, at the
state and local level, as well as the federal government. The Attorney General
sent a message to every federal employee, when in doubt, deny any Freedom
of Information request.”
53
The veil of secrecy that surrounds the Act makes it extremely difficult,
if not impossible, to evaluate its impact on our country and predict its future
course. We seem to be left with several important but unanswered questions.
Are the civil liberties concerns that have been raised by opponents of the Act
justified, or have they indeed been exaggerated? How will the Act be viewed
50
Lichtblau, "Senator Faults Briefing on Antiterrorism Law."
51
Ibid.
52
Freedom of Information Documents on the USA PATRIOT Act, (Electronic Privacy
Information Center, [cited April 16 2005]).
53
Transcript available at http://www.pbs.org/now/transcript/transcript206_full.html.
Accessed March 15, 2005.
23
in 10, 20, or even 100 years? Will it be viewed as a success or another stain in
American history? With the uncertainty that surrounds the Patriot Act today, it
becomes extremely important to gain a historical perspective.
Indeed, the study of history is a powerful tool. As David Boaz puts it,
“the study of history is our best guide to the present and the future.”
54
The
study of history has often been called upon to ensure that times of turmoil and
strife are not repeated—that the same mistakes are not made twice. Indeed,
after the horrors of the Holocaust during World War II, history has become
one of the most important tools in combating similar evils. School children in
Germany and the United States alike learn about the economic strife in
Germany that led to the rise of Hitler and the public’s complacency with the
man who would claim the lives of millions.
The Patriot Act is not the first instance of national security legislation
being crafted during times of emergency. As Thurgood Marshall said in his
dissenting opinion in Skinner v. Railway Labor Executives’ Association
(1989) “history teaches that grave threats to liberty often come in times of
urgency, when constitutional rights seem too extravagant to endure.”
55
There
have indeed been other points in American history when the issues that are at
the forefront of the debate concerning the Patriot Act—civil liberties versus
national security interests—have dominated policy debates. As Alan Brinkley
boldly states, “every major crisis in our history has led to abridgements of
54
David Boaz, "The Importance of History," Cato Policy Report (July/August, 2003).
55
, "Skinner v. Railway Labor Executives' Association," in 489 u.s. 602 (1989).
24
personal liberty, some of them inevitable and justified.”
56
The Alien and
Sedition Act of 1798, which like the Patriot Act, was prompted by an incident
that led to a heightened concern about national security, provides an example
of past legislation that can help to shed light on the Patriot Act. I will examine
the Alien and Sedition Acts and the Patriot Act and their relationships in
Chapter 2.
56
Alan Brinkley, "A Familiar Story: Lessons from Past Assaults on Freedoms," in The War
on Our Freedoms: Civil Liberties in an Age of Terrorism, ed. Richard C. Leone and Greg
Anrig, Jr. (New York, 2003), 23.
25
Chapter 2
The Alien and Sedition Acts and the Patriot Act
A Comparative Analysis
More than two centuries before the terrorist attacks on 9/11 and the
subsequent enactment of the Patriot Act, America experienced its first lesson
in national security law. The enemy – unlike today – was not the terrorist, but
instead the country of France. A pseudo-war – much like the current war on
terrorism – had been waged against France by President John Adams and his
Federalist party. Patriotism surged through the nation and the Adams
administration realized that they had been afforded the opportunity to pass
legislation that had been deemed unacceptable in prior years. The Federalist
controlled Congress passed four significant national security laws in 1798 –
The Naturalization Act, The Alien Friends Act, The Alien Enemies Act, and
the Sedition Act.
Chapter 1 included a description of the major provisions of the Patriot
Act. I will begin this chapter with a brief summary of the main features of the
Alien and Sedition Acts. It is beyond the scope of this paper to provide a
detailed comparison of the provisions of the Patriot Act and the Alien and
Sedition Acts. Rather, the focus will be on the historical events that led to
their enactment, the debate preceding their enactment, and the application and
enforcement of both sets of acts. In the third and final chapter, I will discuss
the fate of the Alien and Sedition Acts and consider whether a similar fate can
be expected in relation to the Patriot Act.
26
The Naturalization Act
On June 18, 1798, President Adams signed into law the first of a series
of legislative acts that are now commonly referred to as “the Alien and
Sedition Acts.” The Naturalization Act – as it was labeled – was created in
order to make it tougher for aliens to become residents of the United States.
The Act’s effect would be to nearly triple the time it took for immigrants to
become citizens from five to fourteen years.
1
Moreover, as written in the first
section of the Act, the alien requesting citizenship would have to “have
declared his intention to become a citizen of the United States, five years, at
least, before his admission.”
2
The Act also set up a system in which aliens
would be required to report to government officials periodically in order to be
documented.
The Alien Friends Act
The Naturalization Act paved the way for the next bill concerning
aliens in the United States. On June 25, 1798, President Adams signed into
law the Alien Friends Act, which was created as a tool to be used by the
president during both wartime and periods of peace to protect the security of
1
James Morton Smith, Freedom's Fetters: the Alien and Sedition Laws and American Civil
Liberties (Ithaca, New York, 1966). 23.
2
Alien and Sedition Acts ([cited April 16 2005]); available from
http://www.loc.gov/rr/program/bib/ourdocs/Alien.html. All references to the Alien and
Sedition Acts are to this Library of Congress Web site.
27
the country from dangerous aliens. It was determined that the act was to be in
effect for two years before expiring, or being phased out.
The first section of the act granted the President broad powers in
dealing with aliens and made it “lawful for the President of the United States
at any time during continuance of this act, to order all such aliens as he shall
judge dangerous to the peace and safety of the United States … to depart out
of the territory of the United States.” The second section of the Alien Friends
Act further defined the role of the President in deporting aliens and made it
abundantly clear that the President may also imprison aliens for an
unspecified amount of time if an alien did not comply with the President’s
demand of removal.
The remaining four sections of the Alien Friends Act laid out some of
the more minor specifications of the act. For instance, one such section made
it a requirement that masters and commanders of ships arriving at a United
States port provide a written report to a customs officer documenting specific
information about any aliens onboard. Moreover, the other sections specified
that the Court should be afforded knowledge of all crimes under the act and
that all officers of the United States “are required to execute all precepts and
orders of the President of the United States issued in pursuance or by virtue of
this act.”
The Alien Enemies Act
28
A mere two weeks after the signing of the Alien Friends Act, President
Adams signed the next section of the Alien and Sedition Acts – The Alien
Enemies Act – into law on July 6, 1798. Much like the Alien Friends Act
before it, the later Act awarded the President new broad powers in dealing
with aliens during national security crises. However, unlike the Alien Friends
Act, which was applicable during both periods of war and peace, the Alien
Enemies Act could only be used as a wartime measure. Moreover, the Alien
Enemies Act would be a permanent measure, which would only affect aliens
from a country with which the United States was at war. This aspect made the
Alien Enemies Act much less controversial than the Alien Friends Act, which
allowed the President powers in deporting aliens regardless of their home
country.
The first section of the Act defined the President’s powers to have “all
natives, citizens, denizens, or subjects of the hostile nation or government …
apprehended, restrained, secured, and removed as alien enemies” upon a
declaration of war. The section also provided a clause that allowed for alien
enemies “who shall not be chargeable with actual hostility” to have sufficient
time to gather their goods and belongings for their departure. The amount of
time that would be granted to these aliens would be based on any treaties that
the United States had with the hostile nation. If none existed, it was deemed
the responsibility of the President to declare a “reasonable time” for their
departure.
29
The second section of the Alien Enemies Act defined the duties of
enforcement officers and the Courts in response to the President’s
proclamation of war to decide how to handle alien enemies on a case-by-case
basis. Lastly, section III set up the responsibilities of local marshals and
deputies to carry out the President’s and Court’s orders in removing an alien
enemy from the United States.
The Sedition Act
President Adams signed the last act comprising the Alien and Sedition
Acts – The Sedition Act – into law on July 14, 1798. Unlike the three acts
before it that dealt with aliens, the Sedition Act sought to enforce national
security measures upon citizens of the United States. The purpose of the act,
which was to expire on March 3, 1801, the last day of Adams’ term of office,
would be to punish those in the United States who conspired against the
government or spoke and wrote ill of the government. Although Federalists
explained the rationale for the Act’s expiration date by saying that it was just
meant to be a temporary measure, scholars have conjectured that the date was
set to ensure that the Republicans would not use the act against Federalists if
Adams were defeated in 1800.
3
The first section of The Sedition Act dealt specifically with punishing
those people who “shall unlawfully combine or conspire together, with intent
to oppose any measure of government of the United States” or intimidate any
member of the government. This section deemed such an offense a high
3
Geoffrey R. Stone, Perilous Times: Free Speech in Wartime (New York, 2004). 67.
30
misdemeanor and authorized that the guilty subject be punished by a fine “not
exceeding five thousand dollars, and by imprisonment during a term not less
than six month nor exceeding five years.”
The second section of The Sedition Act – the Act’s most controversial
part – deemed “any false, scandalous and malicious writing or writings
against the government of the United States” a punishable offense, subject to
fines and imprisonment. The third section of the Act dictated how suspected
offenders would be prosecuted. The section made allowances for defendants
to have a trial by jury and “give evidence in [their] defense, the truth of the
matter contained in the publication charged as a libel.”
The Sociopolitical and Historical Context of the Alien and Sedition Acts
A mere decade removed from the ratification of the United States
Constitution, the United States government was still going through the
rudimentary stages of developing domestic and foreign policy in the 1790s.
That was a period of international problems for the United States government.
Much of the initial tension was caused by events not in the United States, but
in Europe. Following the French Revolution of 1789, pro-monarchist
governments in Europe, such as England, Spain, Austria, the Netherlands, and
Prussia, declared war on France, fearing that the revolution would spread to
their countries. However, much to the displeasure of both the French and
British, the United States government vowed to stay neutral and continue to
trade with both nations. The British navy began to seize American ships at sea
31
and force American sailors to join their forces.
4
Just when war between the
two nations appeared imminent, the United States government narrowly
averted it by sending John Jay to London to bargain for peace and sign a
peace treaty that would become known as Jay’s Treaty.
5
Although Jay’s
Treaty effectively dissipated the British threat, the American government
inadvertently made itself a new enemy – France. With Britain still engaged in
a war with France, the treaty made the French suspicious that the Americans
had abandoned their neutrality in support of the British.
By 1795, the French government had responded to the perceived threat
by withdrawing ministers from Philadelphia, not allowing United States
ministers into France, and seizing United States ships at sea.
6
Between June
1796 and June 1797, 316 ships were seized by the French.
7
In the years
following Jay’s Treaty, war between the United States and France seemed
imminent. Warfare between the two nations became so threatening that the
newly elected U.S. president, John Adams, sent a group of negotiators to Paris
in 1797 to try to settle the dispute with French agents and French foreign
minister, Charles Maurice de Talleyrand. However, in what has since come to
be known as the “XYZ Affair,” month-long negotiations between the United
States came to a stand still when three unofficial agents – who were later
dubbed X, Y, and Z – told the American diplomats that all talks would end
unless the American government loaned France money for their war against
4
Ibid. 21.
5
http://www.state.gov/r/pa/ho/time/nr/14318.htm. Accessed April 16, 2005.
6
John C. Miller, Crisis in Freedom: The Alien and Sedition Acts (Boston, 1951). 4.
7
Stone, Perilous Times: Free Speech in Wartime. 21.
32
Britain and gave the Executive Directory $250,000. This demand for a bribe
enraged the American diplomats who famously responded, “No, no; not a
sixpence.”
8
As negotiations ended in France, word was spread in the United States
about the French diplomats’ insulting actions. President Adams prepared his
nation for war as anti-French sentiment began to sweep across the nation.
According to John Miller, “the country began to get under arms and the spirit
and unity of the people had never been higher.”
9
Congress voted on several
war preparations, among them orders to build frigates, expand harbor
defenses, and renounce all treaties with France. Indeed, the United States was
thrown into a virtual state of war with France in 1797.
10
In addition to foreign policy concerns, the crisis also began to create
ripples domestically in the political domain. This is not to say that America
was not politically divided before the crisis with France. After all, in the
election of 1796 John Adams, the leader of the Federalist Party, won by only
three electoral votes over Thomas Jefferson, the leader of the Republican
Party.
11
Moreover, Republicans and Federalists had long been at odds over
their views on the French Revolution. According to Gragg, “Republicans
applauded the revolutionaries’ destruction of aristocratic privileges, the
overthrow of monarchy, and the implementation of a constitutional
government,” while Federalists saw the same process as the “degeneration of
8
Smith, Freedom's Fetters: the Alien and Sedition Laws and American Civil Liberties. 6.
9
Miller, Crisis in Freedom: The Alien and Sedition Acts. 7.
10
Smith, Freedom's Fetters: the Alien and Sedition Laws and American Civil Liberties. 7-9.
11
Ibid. 21.
33
legitimate government into mob rule.”
12
However, the situation with France
simply furthered this divide as an impenetrable chasm began to form between
the two major political parties in America. The Republican Party, trying to
quell the public patriotism hysteria, stressed that a war with France was
undesirable and called for a diplomatic settlement. Indeed, in 1798 the
Republicans opposed every major defense measure proposed by the
Federalists during congressional debates.
13
The Federalists, however, spurred
on by their sudden popularity, were not opposed to the use of a military
solution against France, and they began to forge a new battle against the
Republicans, who they deemed a dangerous “faction.”
14
Indeed, the
Federalists launched a flak campaign against the Republicans, claiming that
they were sympathizers with France, or Jacobins. According to scholars such
as James Smith, the Federalists had long been concerned with usurping power
from the Republicans. As he puts it, “the XYZ affair was not so much the
cause, as the occasion, for striking at political opposition.”
15
After the XYZ incident, the Federalists worked feverishly to instill
into the minds of the public that Republicans were unpatriotic. According to
Miller, “the purpose of the opposition party was made to appear to be the
advancement not of American interests but of those of France; it became
axiomatic that no Republican could be a true American.”
16
Once the
framework had been set, and the popularity of the Republicans had been
12
Larry Gragg, "Order vs. Liberty," American History 33 (October 1998, 1998).
13
Smith, Freedom's Fetters: the Alien and Sedition Laws and American Civil Liberties. 26.
14
Miller, Crisis in Freedom: The Alien and Sedition Acts. 11.
15
Smith, Freedom's Fetters: the Alien and Sedition Laws and American Civil Liberties. 21.
16
Miller, Crisis in Freedom: The Alien and Sedition Acts. 13.
34
drastically curtailed, the Federalists moved into legislative action. The Alien
and Sedition Acts – which were thought to have been in the works even before
the dire situation with France – would provide the Federalists an opportunity
to further undermine the Republican Party. Within a year of the XYZ Affair,
the Federalist Party would push all four measures through Congress and into
law.
Comparisons to the Sociopolitical and Historical Context of the
Patriot Act
Much like the months leading up to the signing of the Alien and
Sedition Acts, in which the XYZ Affair dominated the national scene, the
period preceding the signing of the Patriot Act could be defined by one major
event – the terrorist attacks of 9/11. Just as the XYZ affair had brought
together a new nation in the 1790s, the strikes on the World Trade Center and
Pentagon created an uncanny wave of patriotism in America. President Bush’s
approval ratings shot up an unheard of 35 points – from 55 to 90 percent – in
the days following the event.
17
Within weeks of the attack, President Bush –
in much the same manner as President Adams with France – was making
plans for a war with Afghanistan and calling for heightened security measures.
Moreover, as had been the case in the 1790s with the Federalists and
Republicans, following the 2000 election, the country was bitterly divided
between two major parties – the Republican and Democrat Party. Indeed, the
17
USA Today/Gallup Poll: http://www.usatoday.com/news/polls/tables/live/01132003.htm.
Accessed April 13, 2005.
35
House and Senate, although controlled by the Republicans, were almost
evenly divided between Democrats and Republicans. Moreover, the election
of 2000, which saw George W. Bush claim a victory over Al Gore despite
receiving less of the popular vote, can be seen as mirroring the close election
of 1796, in which Adams won by a mere three electoral votes. Although the
claim has seldom been made that the Patriot Act was a political tool to be used
by the Republican Party against the Democrats, there is evidence that
Republicans were planning to implement measures similar to those in the Act
even before the events of 9/11. As David Staudt states:
“We know in hindsight that the PATRIOT Act was a Department of
Justice compiled ‘wish list’ amending over thirty federal statutes to
give law enforcement either greater powers; to remove limitations
from existing authorities; or to codify or overrule specific judicial
rulings.”
18
In a move that resembles the efforts of the Federalists to pass their
coveted Alien and Sedition Acts in the weeks following the XYZ incident, the
Republicans capitalized on the events of 9/11 in order to pass their favored
legislation. However, unlike the fiery debate between Federalists and
Republicans concerning national security in the weeks leading up to the
signing of the Alien and Sedition Acts, the Democrats were largely
maneuvered into a state of silence by the Republicans. Democrats did not
want to be pilloried for being soft on terrorism.
19
Indeed, in the Senate, only
one Democrat, Russ Feingold, voted against the Patriot Act, whereas other
18
David J. Staudt, "How the Terror Laws Make Terrorists: Pre-emptive Prosecution,"
Philosophy & Public Policy Quarterly 24 (Fall, 2004): 5.
19
Judy Mann, "Speeches and Symbolism Do Little to Solve Our Problems," The Washington
Post, October 31 2001.
36
Senators who were usually concerned with protecting civil liberties – such as
Senator Leahy – put up little resistance to the act.
20
Nearly five months after
Sept. 11, then-Senator Tom Daschle was accused by Republicans of trying to
divide the nation after simply questioning the success of the war on terror.
21
For months following September 11, any form of dissent was silenced by the
wave of patriotism. Comedians, whose jobs had revolved around poking fun
at the Bush administration, softened their routine so as not to be deemed
unpatriotic. As a local Boston comedian said in December 2001, “I had all this
great Bush material, and then came Sept. 11, and what used to be an
entertaining Bush joke, now could be treason.”
22
Moreover, much as the Federalists made the Republicans out to be
traitors and French sympathizers after the XYZ Affair, modern-day
Republicans have attacked the Democratic Party, particularly after the war in
Iraq, by questioning their patriotism and pointing to their close affiliations
with the United Nations and the European Union as evidence of catering to
the views of foreign countries. Indeed, in the campaign for the 2004
presidential election, one of President Bush’s major criticisms of John Kerry
was that, as President, he would cater to the views of the United Nations and
not look out for the best interest of Americans. During the campaign, Vice
President Cheney mocked Kerry’s internationalism, claiming that, “Senator
Kerry began his political career by saying he would like to see our troops
20
"Infringing on Civil Liberties."
21
Ayotte, Kerry Criticizes Republican Leaders for Stifling Dissent ([cited).
22
Nick A. Zaino, III, "For Tingle, Finding Laughs in Time of War is a Calling," The Boston
Globe, December 21 2001.
37
deployed only at the directive of the United Nations. …George W. Bush will
never seek a permission slip to defend the American people.”
23
Furthermore, similar to the anti-French and anti-international climate
of the late 1790s, since France’s and the United Nation’s denouncement of the
U.S. war in Iraq, a new culture of nativism and contempt specifically
concerning the French has swept through America. Indeed, disdain for the
French has risen to such high levels that U.S Congressmen have voted to have
the word “French” removed from fries and toast on their cafeteria menus.
24
Much as the Federalists of the late 1790s, the Republican Party has been
taking full advantage of this phenomenon to strike at the minority party, the
Democrats. Indeed, even in the 2004 presidential campaign, “French” became
a dirty word. Republicans sought to capitalize on anti-French sentiment
among Americans by repeatedly accusing Democrat nominee John Kerry of
appearing “French.”
25
In a statement that makes current Republicans’ actions
seem eerily similar to the techniques used by the Federalists centuries ago,
Senator Joe Biden said that Republicans were trying to associate Kerry with
the French in order to make him look unpatriotic.
26
Additionally, more than three years after the horrific terrorist strike,
there is evidence to suggest that the Republican Party’s political strategy still
hinges on the idea of rekindling the patriotic fervor that followed the attacks
23
John Nichols, "GOP Pulls out the Stops in U.N. Attack," Capital Times, September 7 2004.
24
Libby Quaid, 'Freedom Fries' Follow Long Tradition of Patriotic Bashing [LexisNexis]
(Associated Press, April 12 2003 [cited April 10 2005]); available from
http://www.lexisnexis.com/.
25
Sandra Maler, ""French" Becomes Campaign Slur," The Seattle Times, October 27 2004.
26
GOP Seeking Subtle Political Gain by Painting Kerry as a Farncophile [LexisNexis]
(Bulletin News Network, April 12 2004 [cited April 10 2005]); available from
http://www.lexisnexis.com/.
38
of September 11. During the 2004 election campaign, this strategy appeared
particularly dominant. In March 2004, President Bush was criticized by
firefighters and the families of the victims killed on September 11, for running
television campaign advertisements that featured images of the destroyed
World Trade Center and firefighters carrying a flag-draped coffin.
27
Moreover, approximately three years to the date after September 11, 2001, the
Republicans held their national convention in New York City – a move that
angered many, including half of the families of the victims who felt that the
Republicans were simply trying to capitalize from the event.
28
The Alien and Sedition Acts Debate
As Geoffrey Stone states, “a theme that recurs throughout the history
of war in the United States is the status of aliens.”
29
Although the United
States was never officially at war with France, the Alien and Sedition Acts
drastically reshaped legislation concerning aliens. This process began with the
Naturalization Act. From the initial introduction of the Naturalization Act, the
Republicans sensed that the Federalists were seeking to weaken their political
party. Between 1790 and 1798, thousands of foreigners entered the United
27
Wayne Washington and Anne E. Kornblut, "9/11 Images in Bush Ads Hit Firefighters, Kin
of Victims Complain," Boston Globe, March 5 2004.
28
Half in 9/11 Kin Survey Oppose RNC in NYC (Associated Press Online, August 29 2004
[cited April 9 2005]); available from http://www.ap.org/.
29
Stone, Perilous Times: Free Speech in Wartime. 29.
39
States from countries such as France, Ireland, and Germany.
30
The Federalists,
realizing that the Republicans relied on the vote of immigrants, feared that the
influx of foreigners would breed potential disloyalty and promote the rise of
the Republican Party.
31
Empowered by the threat of war, the Federalists
sought to reduce the political influence that foreigners could achieve in the
United States by passing the Naturalization Act, which would make aliens
have to wait an extra nine years before becoming a citizen and voting in
elections. As John Miller writes, “the purpose of this law was to make the
Republican party wither on the vine by cutting off its supply of foreign-born
voters.”
32
Although this political move could not easily be disguised as
national security legislation, the Federalists used incidents such as the XYZ
affair to bolster their argument that immigrants were not to be trusted,
especially not with the rights of American citizens.
While the Naturalization Act was being debated in Congress,
Republicans were able to strike down an amendment that would have barred
naturalized citizens from gaining all the rights of native citizens. The
Federalist Congressman Harrison Gray’s motion was defeated in the House of
Representatives by a margin of fifty-five to twenty-seven.
33
However, if the
Federalists’ first proposed measure had passed, naturalized citizens would
have been unable to ever hold office in the United States. In a forceful attack,
“the Republicans contended that second-class American citizenship is not
30
Ibid. 30.
31
Smith, Freedom's Fetters: the Alien and Sedition Laws and American Civil Liberties. 23.
32
Miller, Crisis in Freedom: The Alien and Sedition Acts. 47.
33
Ibid. 48.
40
possible under the Constitution.”
34
The Republicans would not, however,
succeed in striking down all of the Federalists’ naturalization proposals.
Despite efforts by Republican Congressmen such as Albert Gallatin and
Joseph McDowell to argue the unfairness of raising the residency requirement
to fourteen years, the terms remained unchanged.
The Republicans saw the introduction of the Alien Friends Act into the
Senate as another strike at their political base by the Federalists. Accordingly,
the Senate appointed an all-Federalist committee to draft the bill.
35
The
Federalists once again sought to justify the legislation by pointing to the
impending crisis with France and claming that the Alien Friends Act was
necessary for national security. A pillar of the Republican opposition to the
Act was their constitutional theory that the states had jurisdiction over resident
aliens.
36
In addition to arguing that the federal government was not
empowered to control aliens, the Republicans questioned the necessity of the
legislation and challenged Federalists to give evidence of alien insurrection.
Moreover, the Republicans maligned the President’s newfound powers as a
breach of the separation of powers and argued that the Act was in direct
violation of the due process rights laid out in the Constitution. Indeed, the
Republicans feared having American immigration powers placed in one man’s
hands without the use of the judiciary.
37
Republicans such as Albert Gallatin
stressed that aliens were also to be awarded a trial by jury and due process of
34
Smith, Freedom's Fetters: the Alien and Sedition Laws and American Civil Liberties. 29.
35
Ibid. 51.
36
Miller, Crisis in Freedom: The Alien and Sedition Acts. 162.
37
Smith, Freedom's Fetters: the Alien and Sedition Laws and American Civil Liberties. 84-
86.
41
law and began to voice concern that similar legislation would be used to target
United States citizens.
38
According to Gallatin, “the laws of the United States
will reach alien friends if guilty of seditious or treasonable practices, as well
as citizens.”
39
If the Alien Friends Act was defended on the basis of its being
necessary to national security, the Republicans felt it was not unreasonable to
suspect that a similar bill would be proposed to deal with American citizens.
Despite heavy Republican protest, the Federalists pushed the legislation
through Congress and President Adams signed the act into law.
Only weeks after the signing of the Alien Friends Act, the debate over
the Alien Enemies Act began. Although there was indeed some bipartisan
support for the measure, Republicans continued to fear that similar laws
would be enacted to affect not only aliens, but also United States citizens.
40
Moreover, the Republicans also feared giving the president and the executive
branch excessive authority over the country.
41
Just as Republican Congressmen had suspected, legislation addressing
American citizens was indeed planned by the Federalist Party. Within weeks
of enacting the Alien Friends Act and Alien Enemies Act, Federalist Senator
James Lloyd introduced the Sedition Act in Congress. What followed was the
most heated debate between Republicans and Federalists of all the security
measures passed in 1798.
42
When Lloyd’s bill was introduced in the House,
38
Stone, Perilous Times: Free Speech in Wartime. 31.
39
The Library of Congress Web site:
http://memory.loc.gov/ammem/amlaw/lwaclink.html.
Accessed April 16, 2005.
40
Smith, Freedom's Fetters: the Alien and Sedition Laws and American Civil Liberties. 35.
41
Ibid. 39.
42
Ibid.@113
42
Republican representatives sought to reject the measure outright, saying that it
was both unnecessary and unconstitutional. Indeed, the entire Republican
Party united under the goal of overcoming passage of the Sedition Act.
Although past national security bills had sometimes violated the spirit of the
Constitution, the Republicans argued that the Sedition law would turn the
Constitution into “little more than a scrap of paper.”
43
Their main
constitutional argument hinged on the idea that the Sedition Act was in direct
opposition to the First Amendment’s provision that, “Congress shall make no
law… abridging the freedom of speech, or of the press.”
44
The Republicans
feared that sedition laws would strike at the core of the coveted fourth estate, a
primary purpose of which is to provide checks on the government. However,
as Miller discusses, the Republicans were not fundamentally opposed to the
idea of allowing the states to punish seditious material. In response to the
claim that the federal government’s enforcement of libel was unconstitutional,
the Federalists adopted their usual defense that in times of national
emergency, Congress has the power to ensure that the safety and welfare of
the American public is preserved from dangerous sedition.
45
The Republicans, doubting this assessment, once again asked
Federalists to prove that there was in fact seditious material endangering the
wellbeing of the country. Instead of subscribing to the Federalists’ claim that
the Sedition Act was introduced to eliminate dangerous sedition, the
43
Miller, Crisis in Freedom: The Alien and Sedition Acts. 166.
44
Bill of Rights ([cited April 16 2005]); available from
http://www.archives.gov/national_archives_experience/charters/bill_of_rights_transcript.html
.
45
Miller, Crisis in Freedom: The Alien and Sedition Acts. 167-8.
43
Republicans viewed the Act as yet another power move by the Federalists to
silence the Republican minority and “perpetuate their authority.”
46
According
to Congressman Gallatin:
No reason could be adduced why this bill should pass, except that a
party in the United States, feeling that they had more power, were not
afraid of passing such a law, and would pass it, because they felt
themselves so strong – so little in need of the assistance of that
measure – that they expected to be supported by the people, even in
that flagrant attack upon the Constitution.
47
Indeed, many Republicans feared that the Sedition Act would serve to
chill public opposition of the Federalists. Given the words of Federalist
representatives during the Congressional debates over the Sedition Act, the
Republicans’ claim that the Sedition Act was largely politically motivated
seems well-justified. For example, Federalist Representative John Allen not
only told members of the House that Republican newspapers were threatening
the security of America by convincing people “to raise an insurrection against
the government,” but also argued that Federalist Congressmen were guilty of
seditious comments. Allen even accused Republican Senator Livingston of
sedition because he spoke before the House in favor of rejecting the alien
bill.
48
As Smith states, “at one point Allen came close to contending that
criticism of the proposed sedition bill was itself seditious.”
49
The outspoken
Allen was not the only Federalist to put forth this radical view. Representative
Robert Harper shared Allen’s views on the danger of Republican
46
Stone, Perilous Times: Free Speech in Wartime. 37.
47
8 Annals of Congress 2161at The Library of Congress Web site:
http://memory.loc.gov/ammem/amlaw/lwaclink.html. Accessed April 16, 2005.
48
Smith, Freedom's Fetters: the Alien and Sedition Laws and American Civil Liberties. 114.
49
Ibid. 117.
44
Congressmen and even proposed a way to work around their Congressional
immunity in order to be able to enforce the Sedition Act on them too. He
suggested that private letters written by Republican Congressmen be subject
to review under the Sedition Act.
In the end, Republican efforts to squelch the passage of the Sedition
Act failed and the measure passed with a straight party vote in both the House
of Representatives and the Senate. On July 14, 1798 the Sedition Act was
signed into law by President Adams.
Although the Republicans were dealt a crushing blow when the
Sedition Act was passed, the struggle against the bill did not end with its
passage in Congress. Instead, the struggle to strike down the act only grew
with each application of the measure. In the months following the passage of
the Act, American citizens took a stand and signed petitions citing its
unconstitutionality. In Northamptom County, Pennsylvania, twelve hundred
citizens signed a petition that said that the Sedition Act contradicted
America’s system of a republican government.
50
However, according to John
Miller, the “most forceful statement of the constitutional objections to the
Alien and Sedition Acts was made in the Virginia and Kentucky Resolves.”
51
The Virginia Resolution and Kentucky Resolutions, which were secretly
drafted by Republicans James Madison and Thomas Jefferson, respectively,
were adopted by each state’s legislature in the fall of 1798. Within the
documents, Jefferson and Madison borrowed from the federalism argument
50
Stone, Perilous Times: Free Speech in Wartime. 44.
51
Miller, Crisis in Freedom: The Alien and Sedition Acts. 169.
45
used by fellow Republican Congressmen during the Sedition Act’s debate and
argued that the punishment of seditious speech and writing fell under the
jurisdiction of the states rather than the Federal government. As Geoffrey
Stone observes, the resolutions argued, “that the Constitution was a compact
between the states that limited the federal government to certain enumerated
powers, and that the federal government could not be the final arbiter of the
scope of the powers delegated to it by the states.”
52
As Stone suggests, the
first and most crucial section of the Kentucky Resolution laid out the
Republican states’ rights philosophy, a viewpoint that had seldom been used
prior to the resolutions.
53
The first section of the Kentucky Resolution
included the following resolution:
That the several States composing the United States of America, are
not united on the principle of unlimited submission to their general
government; but that, by a compact under the style and title of a
Constitution for the United States, and of amendments thereto, they
constituted a general government for special purposes,-- delegated to
that government certain definite powers, reserving, each State to itself,
the residuary mass of right to their own self-government; and that
whensoever the general government assumes undelegated powers, its
acts are unauthoritative, void, and of no force.
54
This statement coupled with the Virginia Resolution’s direct invitation
for other states to join the fight and “watch over and oppose every infraction”
of the Constitution by the Federal government had Federalists up in arms.
55
52
Stone, Perilous Times: Free Speech in Wartime. 45.
53
Ishmael Reed, "The Patriot Act of the 18th Century," Time, July 5 2004.
54
The Kentucky Resolutions of 1798 ([cited April 16 2005]); available from
http://www.constitution.org/cons/kent1798.htm.
55
Elliot’s Debates, Volume 4, 528: http://memory.loc.gov/cgi-
bin/ampage?collId=lled&fileName=004/lled004.db&recNum=539. Accessed March 15, 2005.
46
Some felt that the state’s actions were nothing short of a declaration of war
and that violence was on the horizon.
56
Although there was dissent in relation to the Sedition Act in other
states, they all declined to join with Virginia and Kentucky. Moreover,
despite the stir that the Kentucky and Virginia Resolutions caused in
Philadelphia, they did little to deter the Federalists. Indeed, as Miller suggests,
they even may have given the Federalists more of a justification for using the
acts to squelch dissent. Indeed, in the 1799 elections the Federalists gained
seats in Congress, suggesting that the Virginia and Kentucky resolutions may
have hurt more than helped the Republican cause against the national security
legislation.
57
However, Jefferson and Madison’s move did encourage
Republicans to make the Alien and Sedition Acts a major issue during the
campaign of 1800.
58
Moreover, Thomas Jefferson and his Republican
compatriots now understood that they would have to rely on winning
elections, as opposed to counting on the states to take action, in order to
overcome the perils of the Sedition Act.
59
Comparison to the Patriot Act Debate
Just six weeks after the September 11 terrorist attacks, the Patriot Act
passed both houses of Congress with a large degree of bipartisan support.
Indeed, Capital Hill was so intent on quickly complying with the “wartime”
56
Miller, Crisis in Freedom: The Alien and Sedition Acts. 171.
57
Ibid. 179.
58
Gragg, "Order vs. Liberty."
59
Miller, Crisis in Freedom: The Alien and Sedition Acts. 179.
47
Bush administration that no Congressman actually took the time to read the
important document.
60
Consequently, unlike the heated debate in Congress
over the Alien and Sedition Acts, there was very little discussion or debate
prior to passing the Patriot Act. As indicated earlier, even Senators like
Patrick Leahy, who were generally concerned with protecting civil liberties,
put up little protest to the Act. According to a Washington Post article
commemorating the one year anniversary of the Act, public interest lobbyists
found that “normally privacy-minded lawmakers, including Sens. Dianne
Feinstein (D-Calif.) and Charles Schumer (D-N.Y.) had no intention of
questioning efforts to push a bill through quickly.”
61
Many of those troubled
by provisions of the act were sufficiently reassured by the sunset provisions in
some sections of the Act to support it.
62
Moreover, Congressmen who were
especially troubled by the Act, such as Leahy, realized that it would be
political suicide to vote against the Act, and they would be labeled “soft on
terrorism.”
63
This lack of dissent from the Democrats over the Patriot Act in
comparison to the heated debates that took place during the passing of the
Alien and Sedition Acts could also be explained by the fact that, unlike the
Alien and Sedition Acts, the Patriot act didn’t try to destroy the Democratic
Party by attacking its constituency and politicians.
60
Staudt, "How the Terror Laws Make Terrorists: Pre-emptive Prosecution," 8.
61
O'Harrow, "Six Years in Autumn; A Year Ago as a Nation Reeled from Attack, a Battle
was Joined for America's Future. Not in Afghanistan. In Washington."
62
"Infringing on Civil Liberties."
63
O'Harrow, "Six Years in Autumn; A Year Ago as a Nation Reeled from Attack, a Battle
was Joined for America's Future. Not in Afghanistan. In Washington."
48
Although there was little dissent offered by either politicians or the
American public in the months directly after the attacks of September 11, a
movement not unlike that experienced in the late 1790s was forming. Just as
Sedition Act dissent only intensified after the passage of the measures, civil
libertarians began to capture both Congress’s and the public’s attention about
the possible dangers of the Patriot Act as the ardent patriotism surrounding
9/11 and the anthrax attacks began to subside. Indeed, some of the same
members of Congress who voted for the Patriot Act a mere three years ago,
are now calling to narrow its scope. For instance, John Kerry, the Democratic
Senator from Massachusetts, made the modification of some of the more
controversial sections of the Patriot Act an issue during his campaign for
President in 2004.
64
A robust debate such as that preceding passage of the
Alien and Sedition Acts, which did not take place in Congress when the
Patriot Act was first passed, is now increasingly occurring on Capitol Hill.
Just this month (April 2005), hearings have begun over the possible renewal
of sixteen sections of the act that are set to expire at the end of the year.
Unlike the process of modifying and passing the Act that took mere days in
2001, its provisions are likely to be rigorously scrutinized this time around.
Senator Patrick Leahy, who has been criticized for voting for the Patriot Act
originally, vowed that before making a decision this time around, he would
need to have a deep understanding of “how these powers have been used and
64
Bob Egelko, "Bush, Kerry Divided on Scope of Patriot Act," The San Francisco Chronicle,
September 20 2004.
49
whether they’ve been effective.”
65
As an article on the hearings suggests, the
Congressional proceedings over the Patriot Act are controversial enough to be
“shaping up as one of the biggest legislative battles in the current Congress.”
66
Of the sixteen “sunsetting” sections of the Patriot Act being discussed
in the hearing, Section 215 is the by far the most controversial. As discussed
in Chapter 1, Section 215 of the Act, which grants the executive branch
authority to access private records such as library information, has caused a
large uproar from civil libertarians who fear that the government can now look
into what ordinary American citizens are reading. In fact, according to a Los
Angeles Times article, librarians have expressed concern that the provision
was already being used to probe the reading habits of ordinary citizens.
67
Although it remains unclear precisely how the section is being used, there is
the fear that it will be used as a Sedition Act of sorts and allow the
government to keep tabs on, and possibly later arrest, American citizens who
are reading allegedly “un-American” material. In the months leading up to the
Congressional hearings, this section has become extremely politicized. In the
first round of Senate hearings, Attorney General Alberto Gonzales
immediately began discussing the section and even went so far as to endorse
certain changes to the section that would allow individuals who possess
records that are desired for an investigation the chance to consult with a
lawyer. Moreover, it is thought that Gonzales will seek to tighten the legal
65
Eric Lichtblau, Antiterrorism Law Defended as Hearings Start (New York Times on the
Web, April 6 2005 [cited April 10 2005]); available from http://www.nytimes.com/.
66
Ibid.([cited).
67
Richard B. Schmitt, "Gonzales to Endorse Patriot Act 'Modifications'," The Los Angeles
Times, April 5 2005.
50
standard in the section to make it clear that prosecutors must prove to a judge
that desired documents are "relevant" to a terror investigation before making
the request.
68
Another controversial part of the Patriot Act that is set to expire at the
end of 2005 is Section 802. Many of the Act’s staunchest critics have also
compared section 802 of the Act, which concerns the issue of “domestic
terrorism,” to a sedition law of sorts. It is argued that the government could
one day use this section to prosecute protestors and activists under the label of
“domestic terrorists.” As the ACLU has suggested, “the definition of domestic
terrorism is broad enough to encompass activities of several prominent activist
campaigns and organizations” such as Greenpeace, Operation Rescue,
Vieques Island, WTO protestors, and the Environmental Liberation Front.
69
In
the weeks leading up to the Congressional hearing, a political lobbying group
consisting of both conservative and liberal organizations and headed by a
former Republican Congressman, has formed to ensure that controversial
sections of the act, including 802, are not reauthorized by Congress.
70
Moreover, the same separation of powers concerns that arose during
the debate of the Alien and Sedition Acts – in particular the Alien Acts – have
come to the forefront of today’s arguments against the Patriot Act. As I have
already discussed above, with the Alien Friends Act, the President was given
broad powers to control immigration and deport and detain aliens with little
judicial oversight. The Patriot Act, similarly, has given the executive
68
Ibid.
69
How the USA PATRIOT Act Redefines 'Domestic Terrorism' ([cited).
70
Audrey Hudson, "Alliance to fight Patriot Act," The Washington Times, March 23 2005.
51
sweeping powers in performing wiretaps, searches and seizures, and
detainments without a large degree of judicial interference. This abuse of
executive powers during the current administration was a topic of contention
for Senator Patrick Leahy during the Congressional hearings over the Patriot
Act. As he said during the hearing, “Now, whether or not there have been
abuses under the Patriot Act, the unchecked growth of secret surveillance
powers and technologies, with no real oversight by the Congress or the courts,
has resulted in clear abuses by the executive branch.”
71
Furthermore, just as some of the staunchest criticisms of the Alien and
Sedition Acts came from outside of the Capitol, local communities and states
have become involved in the process of repealing the Patriot Act. Much as the
efforts of small communities such as Northampton, Pennsylvania to pass
resolutions against the Alien and Sedition Acts, many battles against the
Patriot Act have now arisen at the local level as well. Numerous communities
have spoken out against the Patriot Act since its passage. According to Nat
Hentoff, in February 2002 the community of Northhampton, Massachusetts
“began a new American Revolution” by meeting to discuss ways to protect
their town from the Patriot Act.
72
Resolutions against the Act have been
signed in 369 communities in 43 states.
73
Five states – Montana, Maine,
71
A transcript of the hearings is available at the Washington Post Web site:
http://www.washingtonpost.com/wp-dyn/articles/A28081-2005Apr5.html. Accessed March
20, 2005.
72
Hentoff, The War on the Bill of Rights and the Gathering Resistance. 87.
73
ACLU Web site:
http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=11294&c=207.
Accessed March 12, 2005.
52
Alaska, Vermont, and Hawaii – have passed statewide resolutions against the
Patriot Act.
During both the initial passage of the Alien Acts and the passage of the
Patriot Act, there were fears from politicians and civil libertarians that more
encompassing legislation was yet on the way. As it turns out, it appears that in
both cases, these concerns were well justified. Indeed, as Republicans
predicted, the Sedition Act soon followed the Alien Acts and turned
government’s watchful eye onto American citizens. Similarly, following the
signing of the Patriot Act, there was talk of further sweeping intelligence
legislation on the way in the form of Attorney General John Ashcroft’s
proposed “Domestic Security Enhancement Act of 2003,” nicknamed “Patriot
II.”
74
Patriot II would further promote the process of handing over power to
the federal government and expanding the Executive branch’s powers of
gaining information on aliens and American citizens.
75
Application of the Alien and Sedition Acts
The Naturalization Act was passed by the Federalist Party in part as an
attempt to strike at the heart of the foreign-born Republican constituency and
make it more difficult for aliens to become citizens of the United States.
However, the Naturalization Act failed to achieve this objective because the
states retained power over naturalization. For instance, although the
Naturalization Act required that aliens live in the United States for fourteen
74
Abele, A User's Guide to the USA Patriot Act and Beyond. vii.
75
Ibid. 69.
53
years before becoming citizens, the state of Pennsylvania allowed
naturalization after just two years’ residence. Yet another demonstration of the
emerging power of the states during the 1790s, this allowed newly naturalized
Pennsylvania residents to vote in both state and federal elections.
76
The Federalists and the Adams administration did not use the Alien
Friends Act. However, on numerous occasions they contemplated its use.
Moreover, Adams signed a blank arrest warrant for Dupont de Nemours, a
French philosopher, if he was to be found within the United States.
77
Although
the act was never actually utilized by the Federalists, it had a kind of
“chilling” effect on foreigners, striking fear into the aliens living within the
United States. Indeed, many Frenchmen began leaving the country in fear that
the act would be used against them. According to Stone, not only was it the
case that “apprehensive French immigrants fled the country,” but also the
“flow of immigrants into the United States trickled to a halt.”
78
As was the
case with the Alien Friends Act, the Alien Enemies Act was not used by the
Adams administration. The Act, which was to be used only during times of
official warfare, had no bearing on the time period due to the fact that the
Adams administration never formally declared war against France.
Although the Naturalization Act, Alien Friends Act, and Alien
Enemies Act were used sparingly, if at all, the Federalists prized and most
notorious Sedition Act was used against American dissenters on numerous
76
Miller, Crisis in Freedom: The Alien and Sedition Acts. 48.
77
Smith, Freedom's Fetters: the Alien and Sedition Laws and American Civil Liberties. 171.
78
Stone, Perilous Times: Free Speech in Wartime. 33.
54
occasions.
79
Although it is difficult to determine the precise number of times
that the measure was utilized, it is thought by scholars such as Larry Gragg
that the Sedition Act itself was used to indict seventeen people – 10 of whom
were actually convicted.
80
However, numerous others were arrested for
sedition, but were never indicted. Moreover, several newspaper editors were
indicted in the weeks leading up to the Act’s passage under common law.
Although the Sedition Act was targeted mostly at Republican newspapers, the
Republican Party itself was to fall victim to the act shortly after its passage.
Indeed, the enforcement of the Sedition Act by Federalists was directly related
to efforts to ensure success in the elections of 1800.
81
The Federalists wasted no time using the Sedition Act to strike at their
political foes, the Republicans. One of the first targets of the Act was a
Federalist representative from Vermont, Matthew Lyon. Lyon, “one of the
most despised Republicans in the nation,” was a vocal opponent of conflict
against France, favoring diplomatic solutions instead.
82
Moreover, he
established his own magazine, The Scourge of Aristocracy and Repository of
Important Political Truths, to strike at the Sedition Act and other Federalist
legislation he deemed unconstitutional. For these reasons, the Federalists
branded him a domestic enemy and he was indicted on Oct. 5, 1798, on
charges of maliciously violating the Sedition Act by verbally attacking
79
Samuel Dash, The Intruders: Unreasonable Searches and Seizures from King John to John
Ashcroft (New Brunswick, New Jersey, 2004). 47.
80
Gragg, "Order vs. Liberty."
81
Stone, Perilous Times: Free Speech in Wartime. 48.
82
Ibid.
55
President Adams.
83
During the trial, Lyon, acting as his own attorney, based
his defense on the notion that the Sedition Act was unconstitutional.
84
However, the jury returned a verdict of guilty, and Lyon was sentenced by a
federal judge to four months in jail and a $1,000. What is most remarkable
about the Lyon case, however, is that even from his jail cell, he launched a
successful campaign for reelection to the House and won by a large
majority.
85
Indeed, the people of Vermont had sent a clear signal to the
Federalists that many questioned the validity of the Sedition Act. Lyon’s
punishment under the Sedition Act simply had made him a martyr for the
cause of overturning the Act that had landed him in jail.
Although Lyon was one of the first targets of the Sedition Act, the
majority were editors of Republican newspapers. Thomas Cooper, the editor
of the Sunbury and Northumberland Gazette, was one such Republican editor
punished by the Sedition Act. Cooper, while at the Gazette, wrote an essay
that hammered the Adams administration. Shortly thereafter, an anonymous
article thought to be written by the Adams administration appeared in a
newspaper proclaiming to the public that Cooper had applied for a
government post with President Adams two years earlier, claiming to have
political views similar to the President. In response to this article, which
Cooper took as a great insult, he wrote a second article explaining that he did
not know how poor a leader Adams would turn out to be when he applied for
83
Smith, Freedom's Fetters: the Alien and Sedition Laws and American Civil Liberties. 228-
29.
84
Miller, Crisis in Freedom: The Alien and Sedition Acts. 108.
85
Smith, Freedom's Fetters: the Alien and Sedition Laws and American Civil Liberties. 241.
56
the post. In response to this statement, Cooper was indicted under the Sedition
Act.
86
Before the start of the trial, Cooper became concerned about his ability
to receive a fair trial before the judge, United States Supreme Court Justice
Samuel Chase. As it turns out, these fears were warranted. During the trial,
which began in April 1800, it became clear that the burden of proof had
become reversed and that Cooper was “guilty until proved innocent, rather
than innocent until proved guilty.”
87
The jury was packed with Federalists and
Justice Chase’s words to the jury often “sounded more like the address of a
public prosecutor than a calm and judicious summing-up of the evidence and
exposition of the law.”
88
Moreover, while defending his actions with the
argument that he had not made a private attack on the President’s character,
Cooper found himself continually thwarted by Judge Chase. Indeed, the Court
refused to allow passages speaking favorably of the President to be read and
also would not permit character witnesses to speak in Cooper’s defense. In the
end, Cooper was sentenced to four months in federal prison and fined $400.
89
After presiding over the Cooper trial, Justice Chase made his way to
Virginia for the trial of yet another Republican journalist, James Callender.
Indeed, Chase looked forward to enforcing the Sedition Act in a state that had
years earlier passed legislation declaring the Act void.
90
Callender, a
Scotsman who had come to America after being expelled from Britain, was a
staunch critic of the Federalists and took delight in berating the Adams
86
Stone, Perilous Times: Free Speech in Wartime. 54-55.
87
Smith, Freedom's Fetters: the Alien and Sedition Laws and American Civil Liberties. 325.
88
Miller, Crisis in Freedom: The Alien and Sedition Acts. 208.
89
Ibid. 207-209.
90
Stone, Perilous Times: Free Speech in Wartime. 61.
57
administration from within Virginia—a state that he thought was a safe haven
from the Sedition Act. However, as the story goes, after Justice Chase was
shown a copy of Callender’s pamphlet The Prospect Before Us, which
contained scathing remarks about Adams and George Washington, Callender
was indicted under the Sedition Act. The trial, which drew national attention,
proceeded much like the earlier Cooper trial. Judge Chase, who was described
as being “rude, partial, and contemptuous” to Callender’s attorney, rejected all
of his claims. The jury quickly brought back a verdict of guilty and Chase
sentenced Callender to nine months in jail and a $200 fine.
91
The trials and prosecutions of Lyon, Cooper, and Callender are just
three of the more famous examples of how the Sedition Act was used against
politicians and journalists alike. By the time the Sedition Act expired in 1801,
it is estimated that twenty-five well-known Republicans were arrested under
the act.
92
Comparisons to Application of the Patriot Act
Unlike the case with the Alien and Sedition Acts, we do not have the
power of hindsight to help us determine the exact uses of the Patriot Act. It
was only after thirteen years had passed since the expiration of the Alien
Friends Act that President Adams publicly announced that the measure had
never been used. Unfortunately, because the Patriot Act is still being applied
today, much secrecy surrounds its usage. During recent Congressional
91
Ibid. 62.
92
Ibid. 63.
58
hearings, Senator Leahy expressed his frustration with the inability to
understand how the Patriot Act is being used, stating, “We have heard over
and over again, there have been no abuses as the result of the Patriot Act. But
it's been difficult, if not impossible, to verify that claim when some of the
most controversial surveillance powers in the act operate under a cloak of
secrecy.
93
Civil liberties groups such as the ACLU have made some progress in
the pursuit for information by filing Freedom of Information Act (FOIA)
requests with the Justice Department. As a result, much of the information that
we obtain from the government comes in bits and pieces. As Senator Leahy
said during the hearings concerning the Act’s secrecy, “information about
these disgraceful acts continues to trickle out in large part only because of a
persistent press and the use of FOIA.”
94
During the Congressional hearings in
Washington, Congressmen have been able to pry out of the Justice
Department information about some of the sections’ enforcement. In early
April, Attorney General Alberto Gonzales admitted at the hearing that a
section of the Patriot Act was used to secretly search the home of a Madrid
bomb suspect.
95
However, much of the government’s usage of the act still
remains hidden from public knowledge. Nonetheless, what we do know about
the enforcement of the Patriot Act may help us make some reasonable
93
A transcript of the hearings is available at the Washington Post Web site:
http://www.washingtonpost.com/wp-dyn/articles/A28081-2005Apr5.html. Accessed March
20, 2005.
94
Washington Post Web site transcript.
95
Rukmini Callimachi, Attorney General Admits use of Patriot Act in Mayfield Case
[LexisNexis] (Associated Press, April 5 2005 [cited April 11 2005]); available from
http://www.lexisnexis.com/.
59
comparisons to the Alien and Sedition Acts and shed some light on the
question of whether the Patriot Act is as dangerous as civil libertarians
suggest.
Although the Justice Department assured the American public that
Section 215 of the Patriot Act – a section allowing government agents to
receive warrants in order to gain “tangible” information pertaining to a
terrorist investigation – had not been used in the years following 9/11, the
ACLU filed a Freedom of Information request and learned that the power had
indeed been invoked. However, the extent to which it has been used is still
pure speculation. As General Counsel for the Electronic Privacy Information
Center David Sobel said upon receiving the government files, “A veil of
secrecy has shrouded the Patriot Act for two and a half years. The fragments
of information that we have managed to pry out of the Justice Department
raise serious questions and provide few answers.”
96
Again, during the
Congressional hearings in April, Attorney General Gonzales claimed that the
Justice Department had not sought a section 215 order “to obtain library or
bookstore records, medical records, or gun sale records.
97
Despite the inability
to determine precisely how many times the section has been invoked, a study
by the University of Illinois found that 85 of the 1,020 libraries that they
surveyed had been contacted by law enforcement officials about patrons of the
library.
98
96
Cited by ACLU: http://www.aclu.org/news/NewsPrint.cfm?ID=15959&c=262. Accessed
April 16, 2005.
97
Washington Post Web site transcript.
98
Staudt, "How the Terror Laws Make Terrorists: Pre-emptive Prosecution," 8.
60
It is unclear who exactly has had their records searched under this
section of the Patriot Act and whether anyone has been prosecuted or detained
due to the findings. However, without much difficulty one can see
comparisons between the likely enforcement of Section 215 of the Patriot Act
and the use of the Sedition Act in relation to their possible infringements on
the First Amendment. Indeed, both sought to target non-citizens and citizens
that wrote or read material that were contrary to the mainstream political
views in this country. Just as a Republican journalist writing an article
ridiculing the Adams administration in 1798 would have reason to fear arrest
under the Sedition Act, a leftist American citizen in 2005 might fear checking
a book on Islam out of his local library, thinking that it may lead to a
government investigation. Much as the Sedition Act, Section 215 may serve
to create a chilling effect that would persuade non-citizens and citizens to
refrain from reading material that would be deemed anti-American. Moreover,
civil libertarians have claimed that Section 215 infringes upon librarians’ First
Amendment rights by not allowing them to disclose to others whether the
government has gained information from their library.
Civil Liberties organizations such as the ACLU and EPIC have also
been able to determine that Section 505 of the Patriot Act, which allows the
attorney general to write letters requesting the use of citizens’ personal
records, has been used. After a Freedom of Information request was filed by
the ACLU, the government released a quite extensive blacked out list of the
applications of Section 505. Moreover, according to the Las Vegas Review-
61
Journal, the executive branch has used this section to gain travel and hotel
records for 350,000 visitors to Las Vegas.
99
What is most worrisome to civil
libertarians about the section is that there is no judicial oversight of the
process. The attorney general can send national security letters without a
system of checks and balances in place to ensure that he is not abusing his
powers.
100
Indeed, this section of the Patriot Act very much resembles the
Alien Enemies Act, which gave the executive branch broad powers to deal
with issues of immigration, detainment, and deportation with little or no
judicial interference.
The section of the Patriot Act that most closely resembles the Sedition
Act – Section 802 – has received particular attention from civil liberties
advocates, fueled by the secrecy surrounding its application. Conclusions
about the section’s enforcement seem to require large amounts of speculation.
However, given the tales of its usage, and the lessons of the Alien and
Sedition Acts, it is not unreasonable to believe that Section 802, which deals
with the issue of domestic terrorism, has been used at some point in its three-
year existence. It is feared that this Act can and has been used to silence
public dissenters and protestors in this country. David Staudt presents
evidence that points to the section’s usage.
101
In addition to a memo sent to
the FBI by former Attorney General John Ashcroft saying that political action,
99
Rod Smith, "Anti-terrorist Law: Parts of Patriot Act Rejected," Las Vegas Review-Journal,
September 30 2004.
100
Information at ACLU Web site:
http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=12166&c=206. Accessed April 16,
2005.
101
Staudt, "How the Terror Laws Make Terrorists: Pre-emptive Prosecution."
62
“when disguised propaganda and harassment,” could be targeted under the
section, Staudt writes that days before anti-Iraq occupation protests in
Washington and San Francisco, the FBI notified local law enforcement that
they should “report possible indicators of protest activity and other potentially
illegal acts to the nearest FBI Joint Terrorism Task Force.
102
Moreover, Staudt
presents evidence that the FBI has had local law enforcement officers
infiltrate protests across the country. In one of the more recent instances, the
FBI admitted to infiltrating and monitoring the Internet sites of groups
planning to protest at the Republican national convention, despite having “no
evidence to move against any member.”
103
If Staudt’s claims are true and dissenters are indeed being targeted by
the government without sufficient reason, comparisons between the Sedition
Act and Section 802 of the Patriot Act may be stronger than we may like. It
may be far-fetched to believe that the Patriot Act will be used to imprison
dissenting Congressmen and journalists, but some civil libertarians believe
that the situation will rise to a level where dissent is viewed as lawless.
Indeed, as Staudt states, “dissent is already, in too many people’s minds,
‘unpatriotic.’”
104
This, as was seen during the last years of the Adams
administration, is a frightening and dangerous phenomenon.
102
Ibid.: 5-6.
103
Ibid.: 7.
104
Ibid.
63
Chapter 3
Looking From the Past to the Future
Having analyzed and compared several aspects of the Patriot Act and
the Alien and Sedition Acts in the first two chapters, it is now possible to draw
some conclusions and, in the process, address the important question of where
the Patriot Act is headed.
In order to attempt to accomplish these goals, it is first necessary to
understand the fate of the Alien and Sedition Acts. As it turns out, the
presidential election of 1800 served as the deciding factor for the Alien and
Sedition Acts’ lifespan. What is ironic is that the Alien and Sedition Acts,
which were mainly put in place to consolidate Federalist power for the
election of 1800, were undone by the election. As Smith states, “the law
[Sedition Act] furnished a ready text which the Democratic-Republicans used
to incite the American people to legal ‘insurgency’ at the polls.”
1
Indeed, in
part due to making the Alien and Sedition Acts a major issue in the campaign,
the Republicans gained the majority in the House of Representative and had
one of their own, Thomas Jefferson, elected President.
2
The election results
ensured that the Alien and Sedition Acts would be repealed or allowed to
expire. In his inaugural address, Jefferson began his presidency by speaking
out against the Sedition Act, saying: “if there be any among us who would
wish to dissolve this Union or to change its republican form, let them stand
1
Smith, Freedom's Fetters: the Alien and Sedition Laws and American Civil Liberties. 431.
2
Gragg, "Order vs. Liberty."
64
undisturbed as monuments of the safety with which error of opinion may be
tolerated where reason is left free to combat it.”
3
After taking office, Jefferson effectively disregarded the Sedition Act
and pardoned all of the bill’s offenders who were still in prison.
4
Moreover, he
allowed for the Sedition Act and Alien Acts to expire, as was prescribed by
the acts themselves. Furthermore, Jefferson led efforts to repeal the
Naturalization Act in 1802.
5
The only part of the Alien and Sedition Acts that
remained untouched was the Alien Enemies Act, a measure that had never
been used during the Adams administration.
6
In 1840, Congress repaid all the
fines collected under the Sedition Act and officially declared the Act a
“mistaken exercise.”
7
Much as the Alien and Sedition Acts during the election of 1800, the
Patriot Act is at a crossroads of sorts. In fact, the progression of the Patriot
Act and national security legislation in the last several decades is quite similar
to the evolution of the Alien and Sedition Acts that occurred over two-
hundred years ago. Just as national security legislation in the 1790s began
with the introduction of legislation such as the Naturalization Act and Alien
Acts, which dealt primarily with foreign subjects, the United States
government in the modern era introduced the Foreign Intelligence
Surveillance Act (FISA) primarily to set procedures for investigating foreign
3
James Morton Smith, "The Sedition Law, Free Speech, and the American Political Process,"
The William and Mary Quarterly 9 (October 1952, 1952): 511.
4
Smith, Freedom's Fetters: the Alien and Sedition Laws and American Civil Liberties. 268.
5
U.S. Citizenship & Immigration Web site:
http://uscis.gov/graphics/aboutus/history/mar1790.htm. Accessed April 12, 2005.
6
Gragg, "Order vs. Liberty."
7
Abele, A User's Guide to the USA Patriot Act and Beyond. 73.
65
subjects. However, with the passage of both the Sedition Act and the Patriot
Act, the American government began to broaden the scope of national security
legislation, allowing for its use on American citizens and, in the case of the
Patriot Act, also blurring the line between regular criminal investigations and
international surveillance investigations.
8
Although the Patriot Act – unlike the Sedition Act in 1800– was not
the subject of intense debate during the 2004 Presidential and Congressional
elections and the President who pushed the legislation through Congress in
2001 was reelected, the recent Congressional hearings concerning the Act will
undoubtedly have major implications on its future. Indeed, sixteen provisions
of the Patriot Act are set to expire by the end of the year unless Congress
votes to renew them.
9
As discussed in the previous chapter, the similarities between the
Alien and Sedition Acts and the Patriot Act are numerous. However, at this
crossroad in history, will the fate of the Patriot Act also mirror that of the
Sedition Act? The sheer degree of secrecy behind the Patriot Act may make
the task of answering this question a difficult one. Despite the fact that there
was an element of secrecy behind the use of the Alien and Sedition Acts, the
application of the Patriot Act remains all but a complete mystery to Americans
despite the Freedom of Information Acts that are meant to counter this
confidentiality. However, although it is impossible to tell for sure whether the
Patriot Act will suffer the same ill fortune as the Alien and Sedition Acts,
8
Ibid. 23.
9
Eric Lichtblau, "Justice Dept. Defends Patriot Act Before Senate Hearing," The New York
Times, April 5 2005.
66
there are signs that point us in both directions. The fact that both the Alien and
Sedition Acts and the Patriot Act were crafted in response to a sudden national
security emergency would suggest that many sections of the Patriot Act – like
the Alien and Sedition Acts – may be phased out of existence as the threat of
terrorism subsides. Throughout American history, the United States
government has had a tendency to drastically curtail the civil liberties of
Americans during crises, only to revert back to normal procedures after the
threat has subsided.
10
Indeed, not long after the Alien and Sedition Acts were enacted, a
United States peace mission to Paris in 1799 ended much of the tension
between France and the U.S. and took much of the wind out of the sails for
justifying those acts.
11
With respect to the Patriot Act, Congress’s inclusion of
expiration dates for a number of the more controversial sections seems to
suggest that members of Congress themselves were well aware that parts of
the Act might no longer be needed as the national crisis following September
11, 2001 subsided.
However, it is important to note when gauging the possibility of
sections of the Patriot Act being repealed or allowed to expire that there is no
end in sight to the war on terrorism. When President Bush declared a state of
national emergency on September 24, 2001 in response to the terrorist attacks
that occurred just days before, he was acknowledging the beginning of a new
10
Chang, Silencing Political Dissent. 19.
11
Stone, Perilous Times: Free Speech in Wartime. 67.
67
war – a war on terrorism.
12
Unfortunately, unlike the crisis with France, or
even WWI or WWII, which all had definite beginnings and conclusions, “the
war against terrorism will be a struggle of uncertain length” and may lead to a
more “open-ended commitment” to emergency measures such as the Patriot
Act.
13
Therefore, unlike the circumstances surrounding the Alien and Sedition
Acts, it may very well be naive to believe that the threat of terrorism will ever
be eliminated or lowered to a point where the Patriot Act would be deemed
unnecessary.
In addition to the parallels that exist between the initial national
security crises that prompted the passage of the Alien and Sedition Acts and
the Patriot Act, the national and local movements against the Acts seem to be
similar. Indeed, just as towns and villages passed ordinances against the
Sedition Act in the years following its passage, 377 communities have passed
resolutions denouncing the Patriot Act.
14
Moreover, following the lead of
Kentucky and Virginia during the 1790’s, five states have passed resolutions
against the Patriot Act. This growing trend of concern and dissent in relation
to the Patriot Act may indeed influence politicians to run for office on an anti-
Patriot Act platform in years to come. However, it may yet be too soon to
predict that a movement of this sort will lead to the repeal or expiration of
sections of the Patriot Act.
12
http://www.whitehouse.gov/news/releases/2001/09/20010924.html. Accessed April 16,
2005.
13
Michael Barkun, "Defending Against the Apocalypse: the Limits of Homeland Security,"
Policy Options (September, 2002): 31.
14
Information at the ACLU Web site:
http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=11294&c=207. Accessed April 16,
2005.
68
As we saw during the campaign for the 2004 Presidential and
Congressional elections, despite the fact that many of the controversial
sections are up for renewal in 2005, minimal attention was given to the Patriot
Act. Other issues such as the war in Iraq and the United States economy
seemed to have drowned out the debate over the Act. It seems that politicians
such as John Kerry did not raise the Patriot Act as a major campaign theme.
15
By contrast, Republicans such as Thomas Jefferson and James Madison
sought to bring the Alien and Sedition Acts to the forefront of national
attention before the elections of 1800.
Moreover, although there have been states passing resolutions against
the Patriot Act, unlike the Kentucky and Virginia Resolutions of 1798, these
measures seem to be simply symbolic in nature. By using the phrase symbolic,
I am not suggesting that the five states that have passed these resolutions
haven’t indeed taken an impressive stand against the Patriot Act. However,
the Kentucky Resolutions and Virginia Resolutions resonated throughout the
capital and the nation in ways that have not been seen with the Patriot Act
resolutions. Indeed, with the introduction of the Kentucky and Virginia
Resolutions, civil war was thought to be an all too real possibility as rumors of
succession spread to the capital.
16
In order to account for this difference, it is important to note that the
Virginia and Kentucky Resolutions were scripted by Madison and Jefferson
largely based on states’ rights concerns as opposed to civil liberties
15
Charlie Savage, "Civil-Liberties Issue in the Background," The Boston Globe, October 4
2004.
16
Miller, Crisis in Freedom: The Alien and Sedition Acts. 169-173.
69
complaints.
17
Using powerful language, the resolutions argued that the
Constitution was a compact between states that prohibited the federal
government from being the “final arbiter of the scope of the powers delegated
to it by the states.”
18
Indeed, this states’ rights issue was central to the failure
of the Naturalization Act. Although that act significantly raised the level of
requirements needed for becoming a citizen of the United States, states
maintained power of naturalization and were able to craft their own standards.
For example, despite the passage of the Naturalization Act, Pennsylvania
permitted naturalization after two years, which included the right to vote in
both state and federal elections.
19
Moreover, the states’ rights language that was used by Jefferson and
Madison had the advantage of resonating with people who were concerned
with issues other than civil liberties concerns such as the subject of slavery.
Indeed, much the same states’ rights issues that were being used by Jefferson
and Madison to rally states against the Alien and Sedition Acts were used a
half-century later during the Civil War era to lead the southern states in a fight
to preserve slavery.
This states’ rights issue is not apparent in the resolutions that are being
passed by state governments in response to the Patriot Act. Instead, state
governments are primarily using civil liberties arguments designed to show
that the Act is unconstitutional. Montana, the most recent state to have passed
a state-wide resolution, is a perfect example of this focus on civil liberties
17
Ibid. 169.
18
Stone, Perilous Times: Free Speech in Wartime. 45.
19
Miller, Crisis in Freedom: The Alien and Sedition Acts. 48.
70
concerns instead of the states’ rights. As opposed to the Kentucky resolutions’
words maintaining “that whensoever the general government assumes
undelegated powers, its acts are unauthoritative, void, and of no force,”
20
the
Montana resolution legislation states “it is the policy of the citizens of
Montana to oppose any portion of the USA PATRIOT Act that violates the
rights and liberties guaranteed under the Montana Constitution or the United
States Constitution, including the Bill of Rights.”
21
Stemming from this discussion of states’ rights, it is interesting to note
that the Patriot Act was crafted in large part due to the efforts of President
Bush and the Republican Party, a party that has long been associated with
preserving the rights of the states.
22
However, the opposite was the case with
the introduction of the Alien and Sedition Acts. It was the Federalist Party,
which stressed a strong national government that pushed the series of bills
through Congress. This in turn prompted the Republican Party, which was a
firm supporter of the states’ rights philosophy, to denounce the Alien and
Sedition Acts based on states’ rights concerns. This observation seems to
suggest that we may never hear the states’ rights philosophy being used as an
argument against the Patriot Act.
20
The Kentucky Resolutions of 1798 ([cited).
21
http://data.opi.state.mt.us/bills/2005/billhtml/SJ0019.htm. Accessed April 16, 2005.
22
GOP Agenda vs. States' Rights (CNN.Com, March 31 2005 [cited April 15 2005]);
available from http://www.cnn.com/2005/POLITICS/03/31/gop.states.ap/.
71
Although the debate over the Patriot Act does not include states’ rights
concerns, it is apparent that a diverse group of people has indeed latched on to
the issue of individual rights. Conservatives and democrats alike have climbed
aboard the fight against the Patriot Act. Indeed, members of the conservative
National Rifle Association and Gun Owners of America have joined the
ACLU in protesting the Act. If the debate over individual liberties and the
Patriot Act is framed in the right way to continue to draw support from a wide
array of Americans, it is possible that the Patriot Act could be headed toward
failure.
However, this point only further highlights the fact that, unlike the
Alien and Sedition Acts, the Patriot Act is not being used as a political tool to
attack the Democratic Party’s base. As I have already discussed, the fact that
the Alien and Sedition Acts directly targeted the Republican Party led to the
debate falling right down party lines. However, the Patriot Act has both
advocates and opponents from both sides of the political spectrum. The fact
that the state of Montana – which decisively went to the Republicans in the
2004 presidential election – passed a statewide resolution against the Patriot
Act further highlights this point.
Although it is impressive to see supporters of the two main political
parties working together to oppose the Patriot Act, the fact that the debate
over the Patriot Act does not fall right along party lines may inevitably lead to
the Act’s survival. During the 2004 presidential elections, neither party made
the issue of the Patriot Act a major party platform. This outcome was
72
undoubtedly based on the fact that the debate over the Patriot Act crossed
party lines. This result is indeed in direct contrast to the election of 1800,
where the Republicans to a large degree campaigned against the Federalist
Alien and Sedition Acts. It is quite ironic to think that that the fact that the
Patriot Act has opponents and supporters on both sides of the political divide
could very well be the main reason that the Patriot Act survives for some time
to come.
73
References
Abele, Robert P. A User's Guide to the USA Patriot Act and Beyond. Lanham,
Maryland: University Press of America, 2005.
Act, Freedom of Information Documents on the USA PATRIOT. Electronic
Privacy Information Center, [cited April 16 2005].
Alien and Sedition Acts [cited April 16 2005]. Available from
http://www.loc.gov/rr/program/bib/ourdocs/Alien.html.
Ayotte, Lori. Kerry Criticizes Republican Leaders for Stifling Dissent
Associated Press, March 2 2002 [cited April 9 2005]. Available from
http://www.ap.org/.
Barkun, Michael. "Defending Against the Apocalypse: the Limits of
Homeland Security." Policy Options (2002): 27-32.
Bill of Rights [cited April 16 2005]. Available from
http://www.archives.gov/national_archives_experience/charters/bill_of
_rights_transcript.html.
Boaz, David. "The Importance of History." Cato Policy Report (2003): 2.
Brinkley, Alan. "A Familiar Story: Lessons from Past Assaults on Freedoms."
In The War on Our Freedoms: Civil Liberties in an Age of Terrorism,
edited by Richard C. Leone and Greg Anrig, Jr., 23-46. New York:
Public Affairs, 2003.
Brown, Cynthia, ed. Lost Liberties: Ashcroft and the Assault on Personal
Freedom. New York: The New Press, 2003.
Caher, John. "A Summit on the Patriot Act Asks: Has it Gone too Far?" The
Recorder 128, no. 20 (2004): 3.
Callimachi, Rukmini. Attorney General Admits use of Patriot Act in Mayfield
Case [LexisNexis]. Associated Press, April 5 2005 [cited April 11
2005]. Available from
http://www.lexisnexis.com/.
Carafano, James Jay, and Paul Rosenzweig. A Patriotic Day: 9/11
Commission Recognizes Importance of the Patriot Act Heritage
Foundation, April 15 2004 [cited March 15 2005]. Available from
http://www.heritage.org/Research/HomelandDefense/wm480.cfm.
Chang, Nancy. Silencing Political Dissent. New York: Seven Stories Press,
2002.
Collins, Jeffrey G. FAQ's and USA Patriot Act United States Department of
Justice, 2005 [cited March 15 2005]. Available from
http://search.usdoj.gov/compass?scope=Jeffrey+G.+Collins+Patriot+A
ct&ui=sr&view-template=dojsimple&page=1.
Crimmins, Jerry. Professors Defend the Patriot Act Chicago Daily Law
Bulletin, December 12 2003 [cited March 15 2005]. Available from
http://www.law.uchicago.edu/news/posner_bulletin.html.
74
Dash, Samuel. The Intruders: Unreasonable Searches and Seizures from King
John to John Ashcroft. New Brunswick, New Jersey: Rutgers
University Press, 2004.
Doyle, Charles. USA PATRIOT ACT Sunset: Provisions that Expire on
December 31, 2005 Congressional Research Service of the Library of
Congress, June 10 2004 [cited April 16 2005]. Available from
http://www.fas.org/irp/crs/RL32186.pdf.
Egelko, Bob. "Bush, Kerry Divided on Scope of Patriot Act." The San
Francisco Chronicle, September 20 2004, 1.
Flint, Charles A. "Challenging the Legality of Section 106 of the USA Patriot
Act." Albany Law Review 67 (2004): 1183-1205.
GOP Agenda vs. States' Rights CNN.Com, March 31 2005 [cited April 15
2005]. Available from
http://www.cnn.com/2005/POLITICS/03/31/gop.states.ap/.
GOP Seeking Subtle Political Gain by Painting Kerry as a Farncophile
[LexisNexis]. Bulletin News Network, April 12 2004 [cited April 10
2005]. Available from
http://www.lexisnexis.com/.
Gragg, Larry. "Order vs. Liberty." American History 33, no. 4 (1998): 24-31.
Half in 9/11 Kin Survey Oppose RNC in NYC Associated Press Online,
August 29 2004 [cited April 9 2005]. Available from
http://www.ap.org/.
Hentoff, Nat. The War on the Bill of Rights and the Gathering Resistance.
New York: Seven Stories Press, 2003.
How the USA PATRIOT Act Redefines 'Domestic Terrorism' ACLU,
December 6 2002 [cited March 15 2005]. Available from
http://www.aclu.org/NationalSecurity/NationalSecurity.cfm?ID=1143
7&c=111.
Hudson, Audrey. "Alliance to fight Patriot Act." The Washington Times,
March 23 2005, 4.
"Infringing on Civil Liberties." St. Petersburg Times, October 31 2001, 10.
The Kentucky Resolutions of 1798 [cited April 16 2005]. Available from
http://www.constitution.org/cons/kent1798.htm.
Lichtblau, Eric. Antiterrorism Law Defended as Hearings Start New York
Times on the Web, April 6 2005 [cited April 10 2005]. Available from
http://www.nytimes.com/.
———. "Justice Dept. Defends Patriot Act Before Senate Hearing." The New
York Times, April 5 2005, 19.
———. "Senator Faults Briefing on Antiterrorism Law." The New York
Times, April 13 2005, 17.
Lichtenthal, John. "The Patriot Act and Bush's Military Tribunals: Effective
Enforcement or Attacks on Civil Liberties?" Buffalo Human Rights
Law Review 10 (2004): 399-426.
Lithwick, Dahlia, and Julia Turner. A Guide to the Patriot Act, Part 2 Slate,
September 9 2003 [cited December 20 2004]. Available from
http://slate.msn.com/id/2088106/.
75
———. A Guide to the Patriot Act, Part 3 Slate, September 10 2003 [cited
December 20 2004]. Available from
http://slate.msn.com/id/2088161/.
———. A Guide to the Patriot Act, Part 4 Slate, September 11 2003 [cited
April 16 2005]. Available from
http://slate.msn.com/id/2088239/.
Locy, Toni. "Special Report: Patriot Act Blurred in the Public Mind." USA
Today, February 26 2004, 5.
Maler, Sandra. ""French" Becomes Campaign Slur." The Seattle Times,
October 27 2004, 5.
Mann, Judy. "Speeches and Symbolism Do Little to Solve Our Problems."
The Washington Post, October 31 2001, 12.
McCarthy, Andrew C. "The Intelligence Mess: How it Happened, What to do
About it." Commentary, no. April (2004): 11-13.
Miller, John C. Crisis in Freedom: The Alien and Sedition Acts. Boston:
Little, Brown and Company, 1951.
Milligan, Susan. "Fighting Terror/National Concerns Keeping Quiet; So Far
Politicians' Dissent Left out of the War." The Boston Globe 2001, 17.
Nichols, John. "GOP Pulls out the Stops in U.N. Attack." Capital Times,
September 7 2004, 6.
O'Harrow, Robert, Jr. "Six Years in Autumn; A Year Ago as a Nation Reeled
from Attack, a Battle was Joined for America's Future. Not in
Afghanistan. In Washington." The Washington Post, October 27 2002,
06.
The Patriot Act: Not the Threat Many Think The Heritage Foundation, April 7
2005 [cited April 16 2005]. Available from
http://www.heritage.org/press/dailybriefing/policyweblog.cfm?blogid=
1E7B1AFB-0E7E-2186-FFE15A96CF5A97D2.
Podesta, John. USA Patriot Act: the Good, the Bad, and the Sunset American
Bar Association Human Rights Magazine, [cited April 16 2005].
Available from
http://www.abanet.org/irr/hr/winter02/podesta.html.
Quaid, Libby. 'Freedom Fries' Follow Long Tradition of Patriotic Bashing
[LexisNexis]. Associated Press, April 12 2003 [cited April 10 2005].
Available from
http://www.lexisnexis.com/.
Reed, Ishmael. "The Patriot Act of the 18th Century." Time, July 5 2004, 76-
78.
Rosen, Jeffrey. "John Ashcroft's Permanent Campaign." The Atlantic Monthly,
April 2004, 68-82.
Rosenzweig, Paul, Alane Kochems, and James Jay Carafano. The Patriot Act
Reader The Heritage Foundation, 2004 [cited March 15 2005].
Available from
http://www.heritage.org/Research/HomelandDefense/loader.cfm?url=/
commonspot/security/getfile.cfm&PageID=69895.
Savage, Charlie. "Civil-Liberties Issue in the Background." The Boston Globe,
October 4 2004, 6.
Schmitt, Richard B. "Gonzales to Endorse Patriot Act 'Modifications'." The
Los Angeles Times, April 5 2005, 14.
76
"Skinner v. Railway Labor Executives' Association." In 489 u.s. 602: United
State Supreme Court, 1989.
Smith, James Morton. Freedom's Fetters: the Alien and Sedition Laws and
American Civil Liberties. Ithaca, New York: Cornell University Press,
1966.
———. "The Sedition Law, Free Speech, and the American Political
Process." The William and Mary Quarterly 9, no. 4 (1952): 497-511.
Smith, Rod. "Anti-terrorist Law: Parts of Patriot Act Rejected." Las Vegas
Review-Journal, September 30 2004, 1.
Staudt, David J. "How the Terror Laws Make Terrorists: Pre-emptive
Prosecution." Philosophy & Public Policy Quarterly 24, no. 4 (2004):
2-11.
Stone, Geoffrey R. Perilous Times: Free Speech in Wartime. New York: W.
W. Norton & Company, 2004.
Swire, Peter B. "The Future of Internet Surveillance Law: A Symposium to
Discuss Internet Privacy, Surveillance, and the USA Patriot Act:
Surveillance Law: Reshaping the Framework: The System of Foreign
Intelligence Law." George Washington Law Review 72 (2004): 1306-
1371.
USA PATRIOT Act [cited April 16 2005]. Available from
http://thomas.loc.gov/cgi-bin/query/z?c107:H.R.3162.ENR:.
Washington, Wayne, and Anne E. Kornblut. "9/11 Images in Bush Ads Hit
Firefighters, Kin of Victims Complain." Boston Globe, March 5 2004,
1.
Whitehead, John W. "Forfeiting 'Enduring Freedom' for 'Homeland Security':
A Constitutional Analysis of the USA Patriot Act and the Justice
Department's Anti-terrorism Initiatives." American University Law
Review 51 (2002): 1081-1133.
Zaino, Nick A., III. "For Tingle, Finding Laughs in Time of War is a Calling."
The Boston Globe, December 21 2001, 13.
