By: Michael Hayes

Congress is currently considering whether to make permanent various provisions of the U.S.A. Patriot Act. Although the threat of terrorism is real and some parts of the Patriot Act could help prevent future terrorist attacks, some of the act’s provisions represent serious threats to our civil liberties. Which provisions should be retained and which should be amended or repealed in this long and complex statute? How should we make the trade-off between two values we all hold highly, national security and civil liberty?

As lawmakers evaluate this complex and controversial policy, they should be guided by a commitment to the rule of law. As Americans, we like to say we believe in the rule of law and to believe our country conforms to the rule of law. However, few Americans can actually tell you what the rule of law involves. Where the rule of law is operative, all laws conform to two principles.

The first principle is that laws should be as clear and specific as possible. Clear laws specify which behaviors are legal and which are illegal. The police are limited to enforcing clearly written laws. Citizens are both obligated and able to obey clearly written laws. As long as we do not exceed the speed limit, for example, we can be confident we will not be pulled over by state troopers. This is what it means to say that we have a government of laws and not of men.

By contrast, where statutes are ambiguous, law enforcement officials define what constitutes illegal behavior. Where the police get to make up the rules as they go along, no one is safe. Citizens can no longer predict which behaviors will be prosecuted because the law has no specific content.

At least some provisions of the Patriot Act violate this important principle. For example, the law makes it a crime to engage in activities that are aimed at violence or terrorism. However, because the law does not define what constitutes intent to engage in terrorism, law enforcement officials decide what behaviors are suspicious. One controversial provision allows the government to subpoena information from bookstores and libraries in order to determine what books individuals have been reading. Law enforcement agencies then decide whether these books constitute potential evidence of intent to engage in some terrorist activity.

This provision fails to specify what books might lead the government to wiretap your phone or tap into your computer to obtain information on every purchase you made on-line, everything you downloaded, and even who sent you e-mails. Leaving aside the violation of your privacy and your right to read whatever you want, there is no way you can be sure you are above suspicion because there is no list anywhere of books that are legal to read and books that are not. And you can never know whether you have been investigated through this provision because those subpoenaed are prohibited from telling the suspect or anyone else that a search has occurred. You are completely at the mercy of the FBI.

The second principle of the rule of law is equality under the law, which means that the state is required by law to treat everyone the same. To continue with our previous example, speed limits are impersonal. Under the rule of law, the police cannot ticket you just because you are black, male, or Middle Eastern. They can only ticket you where you have exceeded the legal speed limit, which is both specific and clearly posted. Laws that are written or enforced in a discriminatory manner violate the principle of equality under the law.

Under the Patriot Act and executive orders implementing the Patriot Act, many U.S. residents who came to this country from Middle Eastern countries were detained by the FBI, Justice Department, or the INS. Usually picked up on suspicion or for minor immigration violations, these detainees were held indefinitely without being charged with any crime, in direct violation of the Sixth Amendment to the Constitution. These detentions were kept secret, making it difficult for family members to find out what had happened to missing relatives or to secure counsel for them. Where access to attorneys was granted, conversations between clients and attorneys were often wiretapped, eliminating attorney-client privilege. At least some were still confined even after agreeing to be deported.

While the hijackers who flew the planes into the World Trade Center were Middle Eastern, and Osama Bin-Laden draws his recruits from that region, the overwhelming majority of American citizens and resident aliens who came here from the Middle East and South Asia are not terrorists at all, have no plans to become terrorists, and have broken no laws. However much we might want to round up everybody who looks like a potential terrorist, detaining people because of their country of origin violates the principle of equality under the law.

Without question, terrorism poses a serious threat to our homeland security. Law enforcement officials should be given expanded powers to apprehend terrorists and prevent future terrorist attacks. However, these expanded powers must be compatible with the rule of law. Otherwise, none of us can be secure in our liberty or our privacy.

Michael Hayes has been Professor of Political Science at Colgate University since 1984. His most recent book is The Limits of Policy Change, published by Georgetown University Press in 2001.