Since 9/11, we are living in a political state where personal privacy, free flow of information and freedom of association have been diminished as a result of the Patriot Act, which weakens the rights of individuals while increasing the military and police power of the state and federal governments. The executive branch has undermined the rule of law by eroding rights established in the Constitution. One example is the Bush administration's use of offshore torture and rendition. Another is the failure to ask Congress for a Declaration of War before invading Iraq and other aggressive military expeditions. Another is the selected assassination of leaders like Osama Bin Laden.
Government actions are shielded by law from public scrutiny. For example, the Homeland Security Act is exempt from demands under the Freedom of Information Act. Yet our Constitution seeks to create an open and accountable government by the establishment of public records. Without knowledge of government activities, informed consent to govern with the approval of the electorate is impossible. Democracy is undermined by a government that shields itself from criminal prosecution when war crimes are authorized and carried out by those in government who are given our trust and consent to rule. Self-rule by "we the people" requires more than simply freedom of expression and freedom of speech. Democracy and the rule of law demand that a broad view of checks and balances exist to include the freedom of the press to protect sources, to gather news, to make the news understandable, to publish the news, to comment on the news to mobilize public opinion, to globally distribute the news and the right to uninhibited retransmission of the news by any recipient of information.
Outdated assumptions of media power and wealth no longer apply today. Profit and the desire to influence may still motivate organized institutional media controlled by magnates like Rupert Murdoch, but unorganized individuals, through websites and social networking, can expose injustice and raise the conscious awareness of the public to worthy causes and crusades. To attain this end, access to information is critical, yet it is often not legally available. This is why Private Bradley Manning allegedly chose to break the law by giving WikiLeaks information that the government refused to release in the name of national security.
One video from the leak showed a peaceful group of people walking down a street. Then, without provocation, American soldiers in Apache helicopters attacked and killed unarmed civilians and journalists. There was a lack of due diligence, responsibility and professionalism in the attitude of these soldiers who viewed their mission as an adventure and as a chance to use their weapons. When a van with children stopped to give assistance, a second air assault occurred, killing and injuring the would be rescuers. The video is an example of a shameful government cover up of a potential war crime.
This information is now in the public domain. As Bob Haldeman, President Richard Nixon's former chief of staff once said, once the toothpaste is out of the tube, it is hard to put it back in. Whistleblowers like Private Manning see themselves as heroes, for their goal is to hold the government accountable for moral wrongs, even if illegal means are used to expose the truth. Organizations like WikiLeaks would not exist if the government did not over-classify information and over-criminalize acts that serve the rule of law.
Our societal goal must always remain the pursuit of the rule of law, for rule by law invites totalitarianism and denies truth and justice.
I define the "rule of law" as government by laws that people are willing to obey because the laws are inherently just. The ideal of the rule of law is to live in a democratic society that places constitutional limits on the power of government, permanently protects inalienable human rights and fundamental freedoms from undue encroachment and provides equality before laws administered by an independent judiciary.
I define "rule by law" as the antithesis of the rule of law. Rule by law means to be governed by unjust laws in any society, including democratic ones, where the government may exercise arbitrary, unbridled powers to abridge inalienable human and civil rights. Rule by law leads to targeted assassinations, authorized torture, immunity from prosecution for war crimes and insidious invasions of citizens' privacy, resulting in the loss of accountability, an imbalance of political power and an absence of self-restraint from totalitarian authority.
The main difference between these opposing concepts is that justice is the defining characteristic in a society governed by the "rule of law," and deferential coerced obedience is the defining characteristic in a "rule by law" society.
Unless a society functions in accordance with the rule of law, guided by a moral component that squares with natural law, there is an absence of the flourishing of truth and justice. Truth and justice do not exist in a vacuum; they exist in a society of human beings, organized into a political state. When a nation state operates as a rule by law society, truth and justice can disappear, be stifled, manipulated or distorted.
The press serves as the guardian of truth and justice in a rule of law society. That is why deception and lies have no place in American political debate and public discourse so that democracy and the Constitution will be defended from all enemies, foreign and domestic. Christopher Harvey, editor of the Advocate, sums up my opinion on the WikiLeaks controversy: "We are of the view that Assange, love him, loathe him or remain indifferent to him, deserves the protections guaranteed by the rule of law. Anything less undermines the very foundation of the Western society."
The history and language of the First Amendment requires that the press must be free to publish news, whatever the source, legal or illegal, without censorship, prior or post restraints. The role of the press is to serve the people, not to serve the government. Without a free press, government deception would not be exposed. To claim secrecy in the name of national security denies the fundamental role of the press to uphold their constitutional role monitoring the monitors. National security is an illusion when information is denied and the scope of public debate is limited to censored information. The security of the public lies in the exposition of the truth, and not its suppression. On public questions there must be open and robust political debate. A vigilant and courageous press is needed to ensure our liberty. This is a public trust that carries with it a fiduciary duty to uphold the rule of law.
Justices Potter Stewart and Byron White, in New York Times Co. v. United States, implored the government to avoid secrecy for its own sake:
For when everything is classified, then nothing is classified, and the system becomes one to ... be manipulated by those intent on self-protection or self-promotion. ... A truly effective internal security system would be the maximum possible disclosure, recognizing that secrecy can best be preserved only when credibility is truly maintained.Repeated exposures of appalling and illegal government conduct will lead to more leaks, for ordinary Americans instinctively know that truth protects the values of democracy.
Congress is still able to pass criminal laws like the Espionage Act to guard the nation from the public disclosure of state secrets that are treasonous. Examples include the revealing of military capabilities and strategies threatening the very life and existence of this nation, such as troop movements, technological capacity and secret alliances with foreign powers. Only when there is a clear and dangerous threat that would cause a meltdown of the core of this nation and cause direct, immediate and irreparable damage should information remain suppressed or disclosure delayed for the safety of us all. Outside of this responsibility to create explicit and narrowly defined criminal laws to preserve this nation's existence, Congress must never make any law abridging the freedom of the press or the freedom of speech. Without specific knowledge of wrongs, the people lack reasons to peacefully assemble and to petition the government for a redress of grievances.
Judicial deference to the executive branch must be rare and must not amount to an abdication of responsibility. Judges are well equipped with the ability to discern from clear and convincing evidence whether or not the executive exceeded its jurisdictional authority or when this nation's life is or is not threatened by public exposure. As Justice Stewart observed in Jacobellis v. Ohio, a pornography case, "I know it when I see it."
Senator Mark Udall, a member of the Senate Armed Forces and Intelligence committees, is one of a few people who can actually see and know what is going on. He unsuccessfully attempted to pass amendments to the Patriot Act to correct the lack of checks and balances in the legislation, giving the government unfettered access to the personal information of everyone in America.
Prohibited from publicly disclosing what he knows, Senator Udall's actions speak volumes about the need for accountability of a government that exercises unchecked invasive powers of surveillance and secrecy. No one publicly knows the government's official legal interpretation of the Patriot Act, nor are intelligence agencies required to identify either the target or the place to be wiretapped. If "any tangible thing" means any kind of records, all business records may be searched and seized by the government whether or not there is any link to terrorism.
This de facto police state amounts to a political coup that substitutes a rule by law society in place of our cherished rule of law. The Patriot Act would not be constitutional in countries like Germany, where memories of fascism are not forgotten. Senator Udall summarized his grave concern by stating, "I believe Congress is granting powers to the Executive Branch that leads to abuse, and frankly shield the Executive Branch from accountability." Extending the Patriot Act in its current form for the next four years, Udall suggests, "threatens the liberty of the American people ... and seriously risks the constitutional freedoms of our people."
Charles Lugosi heads Lugosi Law Firm PLC, a criminal defense firm practicing in the US and Canada. He has three graduate law degrees from the University of Pennsylvania. He has also taught criminal law, criminal procedure, constitutional law and on terrorism and the law at Michigan State University School of Law and Ave Maria in Ann Arbor.
Suggested citation: Charles Lugosi, The Patriot Act and the End of the Rule of Law, JURIST - Sidebar, Aug. 12, 2011, http://jurist.org/forum/2011/08/patriotic-acts-expose-the-patriot-act.php.
This article was prepared for publication by Ben Klaber, an associate editor for JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org