The Patriot Act and Crisis Legislation: The Unintended Consequences of Disaster Lawmaking

Author:Kyle Welch
Position:J.D. 2014, California Western School of Law, B.S. Mechanical Engineering 2011, The Ohio State University. He would like to thank the editors of Capital University Law Review for assisting in this endeavor and making publication of this monstrosity possible.
Pages:481-554
SUMMARY

The fear inspired by disaster and tragedy has frequently produced overreactions at watershed moments in American history. This Article argues that these recurring spasms of fearful congressional overreaction should be properly labeled as “crisis legislation.” Most instances of crisis legislation pass unheeded, and any allusions to the phenomenon in discourse lack a universal term. In The Shock... (see full summary)

 
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THE PATRIOT ACT AND CRISIS LEGISLATION: THE
UNINTENDED CONSEQUENCES OF DISASTER
LAWMAKING
KYLE WELCH*
I. INTRODUCTION
Over the course of American history, the people have endured many
crises that have tested their character and resolve. These trials and
tribulations have also prodded the Constitution, trying its durability and the
capability of the government it created. Since its inception, the United States
Government has proven its ability to respond to these crises to protect its
citizens while adequately preserving the Constitution they hold so dear.
Nevertheless, U.S. lawmakers have never been reluctant to exploit these
crises for political gain. Again and again, Congress has exploited
emergencies to pass legislation that would not otherwise have been tenable
to either the American public or the political opposition. When faced with
trying, often frightening times, the nation’s democratically elected
representatives have used disaster as fuel to propel previously unacceptable,
even unconstitutional1 laws through Congress.2 Often, these emergency acts
are marginally related or altogether unrelated to the crisis they purport to
relieve.3
The fear inspired by disaster and tragedy has frequently produced
overreactions at watershed moments in American history. This Article
argues that these recurring spasms of fearful congressional overreaction
should be properly labeled as “crisis legislation.” Most instances of crisis
legislation pass unheeded, and any allusions to the phenomenon in discourse
Copyright © 2015, Kyle Welch.
* J.D. 2014, California Western School of Law, B.S. Mechanical Engineering 2011, The
Ohio State University. He would like to thank the editors of Capital University Law Review
for assisting in this endeavor and making publication of this monstrosity possible.
1 See, e.g., Sedition Act of 1798, ch. 74, 1 Stat. 596, 596–97 (expired in 1801) (one of the
Alien and Sedition Acts, passed during the Quasi-War with France, which forbade conspiring
against the government and libeling the government and its officials). “Although the Sedition
Act was never tested in this Court, the attack upon its validity has carried the day in the court
of history.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 276 (1964) (footnote omitted).
2 See, e.g., Sedition Act of 1918, Pub. L. No. 65-150, 40 Stat. 553 (passed during World
War I, forbidding the use of “disloyal, profane, scurrilous, or abusive language” about the
United States government).
3 See discussion infra Parts III–IV.B.
482 CAPITAL UNIVERSITY LAW REVIEW [43:481
lack a universal term.
4 In The Shock Doctrine: The Rise of Disaster
Capitalism, Naomi Klein argued that modern governments have frequently
exploited periods of great shock, disaster, or crisis to promulgate free market
ideals.5 She described the phenomenon: “[O]nly a crisis—actual or
perceived—produces real change. When that crisis occurs, the actions that
are taken depend on the ideas that are lying around.”6 Following major
disasters that provoke fear, sadness, or anger, citizens demand action from
their legislators and, in their haste, “are too focused on the emergency . . . to
protect their interests.”7 Though Klein’s Shock Doctrine focused on the
economic aspects of our emergency responses, crisis legislation shares many
of the same attributes.8 Crisis legislation is the legislative equivalent of what
4 See, e.g., Robert O’Harrow Jr., Six Weeks in Aut umn, WASH. POST, Oct. 27, 2002,
(Magazine), at 6, 8–9, 10 (describing the “classic dynamic” of crisis legislation largely as this
Article does throughout, but without any widely-accepted term to express the dynamic in the
context of legislation). The only other instance of the term found by the author, rather
coincidentally, was in a 1940 Columb ia Law Review article discussing crisis legislation in
Britain. Cecil T. Carr, Crisis Legislation in Britain, 40 COLUM. L. REV. 1309 (1940).
Apparently the term did not catch on with legal scholars, though; and obviously there are
significant differences between Un ited States and British law. See id . at 1309.
5 See NAOMI KLEIN, THE SHOCK DOCTRINE: THE RIS E OF DISASTER CAPITALISM 3–11
(2007).
6 KLEIN, supra note 5, at 6 (quoting MILTON FRI EDMAN, CAPITALISM AND FREEDOM xiv
(3d ed. 2002)) (emphasis added). See als o, THE SHOCK DOCTRINE, at 8:00 (Renegade Pictures
& Revolution Films 2009) [hereinafter SHOCK DOCTRINE film] (Naomi Klein, reading from
FRIEDMAN, supra, during a lecture at the University of Chicago in October, 2008), available
at http://www.youtube.com/watch?v=SrpA46YS7P0 (emphasis added).
7 SHOCK DOCTRINE film, supra note 6, at 68:00 (quoting Naomi Klein at a lecture at
Loyola University, Chicago, 2009).
8 The chief attribute of crisis legislation acts is that they exploit a crisis (real or perceived)
to pass a previously politically impossible bill. See infra Parts IV–V. Additionally, acts of
crisis legislation usually—but not always—pass too quickly for a full and proper debate on
the matter; prey on the fears of American voters; are largely unrelated to their claimed
purpose; have drastic unintended consequences that become entrenched in the American legal
system; have catchy and voter-friendly names; have few critics that are often vocal and
perceptive; and require more the appearance of action than the efficacy through action. See
id. Beside the content of the policy, a major difference between crisis legislation and Naomi
Klein’s disaster capitalism is that crisis legislation is borne not out of design, but rather out
of the best of intentions. See KLEIN, supra note 5, at 6 (“I call these orchestrated raids on the
public sphere in the wake of catastrophic events, combined with the treatment of disasters as
exciting market opportunities, ‘disaster capitalism.’”) (emphasis added); id. at 7 (“For more
than three decades, Friedman and his powerful followers had been perfecting this very
2015] THE PATRIOT ACT AND CRISIS LEGISLATION 483
Klein brands “disaster capitalism”9 and is a tradition as old as the republic
itself.10 This type of “disaster lawmaking” is responsible for helping shape
the legal framework of the United States.
Perhaps no single act of Congress better exhibits the well-rehearsed
choreography of crisis legislation than the USA Patriot Act of 2001 (Patriot
Act).11 Passed in the frantic weeks following the terrorist attacks of
September 11th, 2001, the Patriot Act ostensibly empowered the
government to prevent future terrorist attacks.12 In reality, the Patriot Act
was a monstrous, sweeping piece of legislation that reshaped the landscape
of government-ordered surveillance, possibly irrevocably.13 Many of the
Patriot Act’s provisions that were criticized14 were only incidentally related
to the terrorism that the Patriot Act purported to stop—both in practice and
by design.15 When faced with the task of fixing the leaks in the U.S.
intelligence boat, Congress decided instead to buy a bigger boat.
Nearly twelve years since its enactment, the Patriot Act’s legacy is
complex and its history is turbulent. Despite the questionable behavior
surrounding the U.S. government during and in the wake of its passage,16
the Patriot Act still enjoys a great amount of bipartisan support in the face
strategy.”). One could take a more cynical view on the unintended consequences of crisis
legislation, but there is a dearth o f evidence to support that view.
9 KLEIN, supra note 5, at 6.
10 See Sedition Act of 1798, ch. 74, 1 Stat. 596, 596–97 (expired in 1801). See also Natsu
Taylor Saito, Wh ose Liberty? Whose Security? The USA Patriot Act in the Context of
Cointelpro and the Unlawful Repression of Political Dissent, 81 OR. L. REV. 1051, 1066–67
(2002) (“The Federalists who enacted the 1798 Alien and Sedition Acts cla imed th e acts wer e
necessary because of the increase in U.S.-French hostility . . . . As it turned out, only
Republicans were prosecuted under the Sedition Act, and they were clearly prosecuted for
political––not security––reasons.”) (footnotes omitted); David B. Kopel & Joseph Olson,
Preventing a Reign of Terror: Civil Liberties Implications of Terrorism Legi slation, 21 OKLA.
CITY U. L. REV. 247, 252 (1996) (“In the United States, there is a long, sad history of interest
groups or government officials taking a few isolated incidents and inflating them into some
kind of vast threat, requiring an immediate, repressive response.”).
11 USA PATRIOT Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (codified as amended
in scattered U.S.C. titles 8, 12, 15, 18, 20, 31, 42, 47, 49, and 50) [hereinafter USA Patriot
Act].
12 See infra Part III.A.
13 See infra Part V.
14 See Saito, supra note 10, at 1114–15.
15 See infra Part III.A.
16 See infra Part VI.C.

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