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

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.