Nearly two decades since its initial passage in the aftermath of the 9/11 attacks, the Patriot Act has continued to linger in our collective memory. Though few Americans probably remember much about its provisions or specifics, the Bush-era legislation long ago entered into general usage as an synonym for heavy-handed domestic surveillance and institutional overreach — the words “Patriot Act” now being practically synonymous with secrecy, eavesdropping, and the rolling back of civil liberties under the intentionally broad guise of “national security.”
Given the law’s contents and implications in practice, this reputation is well deserved. Passing the Senate with only a single dissenting vote, the Patriot Act dramatically expanded the power of federal authorities to spy on ordinary Americans with minimal oversight: enabling the FBI to obtain detailed information about citizens’ banking history and personal communications without having to seek judicial approval and even allowing “sneak and peek” searches of homes and offices. “The Patriot Act,” in the rather blunt words of a brief prepared by the ACLU, “[turned] regular citizens into suspects.”
Predictably, a great deal of law enforcement activity resulted from the ludicrously titled law (USA PATRIOT was a backronym for “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism”). According to data released by the Department of Justice, the FBI made hundreds of thousands of incursions into personal phone, computer, and financial records in the years immediately following its passage — the utility of these searches in identifying or preventing actual terrorist activities being debatable, to say the least.
Despite passing with widespread support, the Patriot Act was still considered extreme enough for lawmakers to attach sunset clauses to several of its major provisions, guaranteeing their expiry in lieu of congressional renewal (which, incidentally, eventually came under George W. Bush and again under Barack Obama).
One prominent Delaware lawmaker, however, felt it didn’t go far enough.
Ahead of the nearly unanimous October 25, 2001, Senate vote on the Patriot Act, Joe Biden was regularly claiming the law as his own, boasting in an interview with the New Republic: “I drafted a terrorism bill after the Oklahoma City bombing. And the bill John Ashcroft sent up was my bill.” Biden wasn’t wrong. In fact, key parts of the Bush administration’s signature national security law were drawn from provisions contained in Biden’s own 1995 anti-terrorism bill. Originally called the Omnibus Counterterrorism Act, Jacobin’s Branco Marcetic summarized it contents as follows:
The bill made “terrorism” a new federal crime, allowed those charged with terrorism to be automatically detained before trial, outlawed donations to government-designated terrorist groups, allowed electronic surveillance of suspected terrorists, and created a special court to deport noncitizens accused of terrorism (ironically, when Bush had proposed a similar measure years before, Biden had denounced it as “the very antithesis of our legal system”). It also let the government use evidence from secret sources in those trials.
Calling the Patriot Act “measured and prudent” during an approving speech on the Senate floor, Biden would nonetheless lament the removal of sections from his 1995 bill that would have given police even more sweeping powers of surveillance.
This particular episode aside, Biden’s career and voting history suggest a decidedly dodgy record on civil liberties. In 1996, he voted for Bob Dole’s Antiterrorism and Effective Death Penalty Act—deemed by legal scholar Lincoln Caplan to be “one of the worst statutes ever passed by Congress” thanks to its undermining of habeas corpus. Though he eventually took to criticizing the administration’s surveillance programs once they became unpopular, Biden’s positions later in the Bush era often earned him only middling ratings from the ACLU.
Given this history, and recent events, Biden’s purported plan to introduce a new domestic terrorism law gives us plenty of reason to worry. As in 2001, the ground currently looks fertile for such legislation to find a big (and potentially bipartisan) constituency even if its contents prove repressive or heavy-handed. The Trump era, with its incessant valorizing of security and intelligence officials and general atmosphere of emergency, has worryingly seemed to lay the groundwork for something resembling a second Patriot Act to find support among liberals — especially if they’re encouraged to believe its sole targets will be figures associated with the likes of QAnon. Against this backdrop, the deep (and understandable) sense of shock in the wake of this month’s Capitol storming will probably act like gasoline poured on an open flame.
However such legislation may be justified with liberal-sounding language, there’s absolutely no reason to believe authorities wouldn’t use new powers to target groups that have nothing to do with Donald Trump or Trumpism. Police almost certainly infiltrated Black Lives Matter protests last summer, and American law enforcement has a long and ignominious history of targeting progressive groups — not to mention socialists, trade unions, and civil rights activists. As this history suggests, the premise behind any new anti-terrorism law will also be wrong on its face: the American state hardly faces excessive restrictions on its capacity to surveil, discipline, and punish. (The FBI, to take an obvious example, already possesses considerable power to investigate groups suspected of extremist activity.)
And, while there is seldom a good time to restrict civil liberties, the aftermath of a bloody riot in the Capitol that raises serious questions about police conduct, and about the presence of far-right forces inside law enforcement, seems like a particularly bad moment to do so.
After the September 11 attacks, Congress hastily approved a sweeping and Orwellian piece of legislation that drew heavily on a bill written by Joe Biden. With Biden about to enter office amid a climate of social instability and deep public anxiety, there’s an all-too-real risk that history will repeat itself.