Paper 2

The Ethics of Government Surveillance


Americans woke up on September 11, 2001 not realizing that their country was about to change forever. In the wake of one of the deadliest days in the history of the United States, all eyes looked to Washington. A controversial war was launched, and waves of new laws and executive orders were enacted to strengthen the nation’s homeland security and ensure that another attack of that nature could never occur again. One such legislative effort was the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, colloquially known as the USA PATRIOT Act. The PATRIOT Act sought to increase government surveillance of its citizens by allowing for roving wiretaps, strengthening immigration restrictions, and removing the right to due process for certain warrants and investigations. The act has been both lauded for its efforts to protect the American homeland—parts of the law were extended in 2011—and criticized for its effects on American civil liberties. Detractors argue: at what point does government surveillance to stop terrorism become spying? This paper seeks to do two things: first, create a case study of the PATRIOT Act analyzing the passing of the bill, its supporters, and its enemies; and second, produce an ethical examination of the act, most notably through the school of utilitarian ethics.

 

“I will never relent in defending America – whatever it takes”

The above quote by George W. Bush perfectly encompasses the sentiment of the American people after 9/11. After the initial grieving period ended, and all the facts were gathered, America was ready to take action against its attackers. A War on Terror was announced, with military personnel being sent to battle in Afghanistan and Iraq to fight Al Qaeda and quell Middle Eastern regimes that may have had negative intentions against the homeland. The question on everyone’s mind next was this: how did this happen? Perhaps an attack on the scale of 9/11 may have never occurred had America gathered better intelligence on suspected terrorists. And thus the basic premise behind the PATRIOT Act began to develop in the minds of Congress.

The USA PATRIOT Act was the product of a few separate bills that had reached the floors of Congress in the weeks after 9/11. The act passed with overwhelming support—it received ninety-eight votes for and only one vote against in the Senate—and with incredible speed—the bill became law within two days of being presented on the floor in its final form (Ball, 47). More interesting, the act showed significant bipartisan support. Though the majority of the dissenters were Democrats—only three Republicans voted against the act—the fact that all echelons of the political spectrum championed the act added to its bravado. The message had been sent: America’s leaders were committed, beyond doubt, to ending threats of terrorism.

In its entirety, the act consists of ten main provisions. Title I establishes that the act has no intentions of revoking civil liberties. Title II allows for roving surveillance—suspected terrorists can be monitored by any means available—as opposed to previous investigation methods where separate warrants were needed for each method of communication. Title III strengthens money-laundering laws, and Title IV bolsters anti-immigration policies. Title V alters protocol with national security letters, or NSLs, which function similar to a warrant. PATRIOT makes these NSLs more accessible for use against U.S. citizens without due process. Titles VI through X include smaller arrangements relating to the sharing of intelligence among branches of government and the definition and crimes associated with acts of terror (Ball, 51-53).

 

An Effective Inhibitor of Terrorism

Support for the act was widespread along both party lines, capitalizing on the anti-terrorism and patriotic attitudes of the American people and its media at the time. Then Senator Joe Biden was quoted discussing the inefficiencies that would be remedied with the passing of the act: “The FBI could get a wiretap to investigate the Mafia, but they could not get one to investigate terrorists. To put it bluntly, that was crazy” (Ball, 48). Among the act’s largest patrons on the interest group front is the Heritage Foundation, a conservative think-tank. Arguing against the notion that the PATRIOT Act harms civil liberties, the Heritage Foundation lists five key points that assert the act’s constitutionality and effectiveness. First, the act “protects civil liberties and provides for the common defense” (McNeill, 2011). Secondly, Americans are not entitled to complete privacy; it is the duty of government to conduct criminal investigations against its people when these instances occur. Thirdly, the law has checks and balances in place to minimize the surveillance of innocent citizens. Fourth, no part of the act has ever been proven unconstitutional in a court of law. Fifth, an argument about the act expanding the power of the federal government (i.e.: the Big Brother question) is not a legitimate rebuttal to make in support or defiance of one piece of legislation (McNeill, 2011).

 

Fighting Terror or Becoming Big Brother?

For as many people there are that support the PATRIOT Act, there are just as many that vehemently oppose it. Among these disparagers include various interest groups, legislators, the media, and individuals. The argument is usually the same: the PATRIOT Act is unconstitutional, a serious breach of privacy and civil rights, and will lead to more acts of government surveillance. Democratic Senator Russ Feingold summed it up quite nicely: “If we lived in a country where the government was allowed to open your mail, eavesdrop on your phone conversations, or intercept your e-mail communications…  the government would probably discover and arrest more terrorists… But that would not be a country in which we would want to live” (Ball, 48).

Political advocacy groups such as the American Civil Liberties Union echo this response. The ACLU, known for protecting the Constitution and rights for all Americans, have argued that the PATRIOT Act has not been successful in thwarting terror, but rather has been used to monitor and punish everyday citizens. Appendix 1 features one such graphic about NSLs. Of the 143,074 issued since 2001, only 53 actually resulted in criminal charges. None of these criminal charges were linked to terrorism. It is statistics like this that give the ACLU and other interest groups reason to believe that the PATRIOT Act is not working.

 

An Ethical Examination

The jury is out on the PATRIOT Act. There is seemingly no way to measure which side has won the debate and whether or not PATRIOT has been successful in deterring terrorist attacks or protecting Americans’ civil liberties. Regardless, it is important to rationalize the act on an ethical basis. Since the act is currently being enforced as this paper is being written, it is imperative to prove that the government has been acting ethically throughout the last decade the act has been in place.

An examination of the USA PATRIOT Act through the school of utilitarian ethics is the most logical starting point for a discussion on the morality of government surveillance. Utilitarian ethics can be defined in this quote by one of its evangelists, the eighteen-century philosopher Jeremy Bentham: “”it is the greatest happiness of the greatest number that is the measure of right and wrong” (A Fragment on Government, 1776). Often associated closely with consequentialism, utilitarianism uses the ends to justify the means. If a certain decision results in the most positive outcome for the largest number of stakeholders, regardless of what the decision entails, it is ethically justified. It is, then, easy to see how the PATRIOT Act is ethically sound according to this school. If the PATRIOT Act results in the deterrence of future terrorist attacks—again, this assumption has not been proven—then it would clearly result in the increase of American citizens’ safety. In turn, minimized security risks could have other positive ramifications for American society, perhaps an economic boost. The ends justify the means of government surveillance; no matter what that government surveillance entails, and no matter how many civil liberties are lost in the process—whether or not they are actually lost at all.

One could even justify the PATRIOT Act on virtue ethics grounds. Virtue ethics seeks to identify the virtues of the decision maker. Whether or not the ends justify the means, if the person who is making the decision is attempting to act virtuously, the act is justified. In this case, we could look at Congress as individual decision makers, or even at President George W. Bush. If President Bush was trying to act virtuously in his decision to pass the PATRIOT Act—meaning that he believed signing the bill into law was the honest thing to do and he was making a righteous decision—then the act is justified. There is really no way to prove what Bush’s actual intentions were, but the PATRIOT Act could potentially by justified on a virtue ethics level if it is assumed that Bush and Congress were acting morally and truly strived to create a law that enhanced the security of our nation without harming personal rights.

This is not to say that everyone would consider the PATRIOT Act to be ethical, but rather that it can be ethically justified according to these two schools. Many detractors would argue that the act is not ethical, and could potentially use the school of deontological ethics as their support for that claim. In his work, How Patriotic is the Patriot Act?: Freedom Versus Security in the Age of Terrorism, author Amitai Etzioni uses the responsive communitarian school of philosophy to refute the ethics of the PATRIOT Act. He writes: “a good society is based on a carefully crafted balance between liberty and social order” (Etzioni, 4). Etzioni, and others, would argue that the PATRIOT Act disrupts that balance, and is thus unethical.

 

Land of the Free, Home of the Brave

The ACLU put it best when defining the current state of affairs regarding the PATRIOT Act: “The Patriot Act debate is far from over”. This paper has examined that this dispute seems to have no real winner. There is an argument that the PATRIOT Act has prevented terrorism, has protected civil liberties of Americans, and is in no way a stepping-stone towards greater government surveillance tactics. There is a counterargument that the PATRIOT Act has not prevented terrorist acts, has severely reduced civil liberties, and is pushing America one step closer to an Orwellian future. Regardless of which side of the spectrum one falls on, it is clear that the USA PATRIOT Act can be ethically justified in terms of utilitarian and virtue ethics. As the PATRIOT Act is set for extension again in 2015, it will be interesting to see how this debate over one of the most criticized pieces of legislation in recent memory is handled in Washington. If America wishes to remain the land of the free and the home of the brave, how much freedom, if any, will Americans have to relinquish? There needs to be a middle ground, and many are unsure that the USA PATRIOT Act is that solution.

 

 Appendix 1:

Screen Shot 2013-11-16 at 3.24.39 PM

Source: American Civil Liberties Union

References

Ball, Howard. The USA PATRIOT Act of 2001: Balancing Civil Liberties and National Security. Santa          Barbara, CA: ABC-CLIO, 2004. Print.

Bentham, Jeremy, J. H. Burns, and H. L. A. Hart. A Fragment on Government. Cambridge [England:               Cambridge UP, 1988. Print.

Etzioni, Amitai. How Patriotic Is the Patriot Act?: Freedom Versus Security in the Age of Terrorism.             New York: Routledge, 2004. Print.

“George W. Bush Quotes.” BrainyQuote. Xplore, n.d. Web. 16 Nov. 2013.                   <http://www.brainyquote.com/quotes/authors/g/george_w_bush_4.html&gt;.

Grabianowski, Ed. “How the Patriot Act Works.” HowStuffWorks. N.p., n.d. Web. 16 Nov. 2013.                   <http://people.howstuffworks.com/patriot-act.htm&gt;.

McNeill, Jena Baker. “The PATRIOT Act and the Constitution: Five Key Points.” The Heritage      Foundation. N.p., n.d. Web. 11 Nov. 2013.     <http://www.heritage.org/research/reports/2011/02/the-patriot-act-and-the-          constitution-five-key-points>.

“Reform the Patriot Act.” American Civil Liberties Union. N.p., n.d. Web. 16 Nov. 2013.     <https://www.aclu.org/reform-patriot-act&gt;.

 

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