“SUFFERABLE” OR SATISFICING? HARD POLICY CHOICES WITHIN
THE USA PATRIOT ACT OF 2001
Breena E. Coates, Ph.D.
School of Public Administration and Urban Studies
San Diego State University
The USA Patriot Act (2001)
has the laudable mission of providing national security and stability. Yet many see this hastily crafted
legislation as raining down collateral damage upon individual rights that are
protected by the 1st, 4th, 5th, 6th
and 14th Amendments to the U.S. Constitution. It has also been seen as providing for
expansion of executive power, and a broader authority for the federal
government. Those that argue in its
favor claim that the government was confronted
with the quandary known as the lesser-of-evils—i.e., given policy
choices where no alternative is optimum, it satisficed by choosing the least
evil to preserve the national welfare.
The policy outcomes so far reveal that people got a policy that was at
best not even satisficing but merely sufferable. The paper discusses the implications of the USAPA.
1.INTRODUCTION:
Many social dilemmas, such as abortion,
euthanasia, gun control, etc., are really fundamental questions of ethics with
strong values that are intransitive and dichotomous. They often involve the clash of ideals, between, for example,
individual and collective choice, or between groups. In a pluralistic society, such as ours, such conflicts are
inevitable and generally quite useful(1) Yet,
the net result of this multiplicity of interests, makes administering public policies
much more difficult (Madsen and Shafritz, 1992). It is difficult
because on the one hand we have the teleological(2) politically-based ideals of security and
stability that are embedded into the legislation, which no reasonable person
can dispute. On the other hand, we have
the deontological(3) obligation-based
concepts of liberty, equity, due process, freedom of speech, privacy, etc.,
that are values which are often compromised the process of administering and
managing public policy.
The
Problem of “Satisficing” a Policy Issue:
In the public policy field we have become
familiar with the notion that policy decisions, especially those dealing with
complex (Mitroff and Sagasti, 1973), ill-structured, and highly-politicized
issues, satisfice—rather than optimize(4) (Simon, 1991)(5). With the Patriot
Act and others like it(6) one might argue that the notion of “satisficing”
possibly implies a far too positive characterization of quandaries of the
lesser-of-evils(7) category, where utilities are not transitive(8), (9). In
these instances the outcomes are interpreted less as satisfactory and
sufficient and closer to being Unsatisfactory + Insufficient by
social groups of various persuasions.
This suggests that a less positive
connotation may be appropriate in referring to
policy decisions whose outcomes we must suffer and endure, because one
“evil”—or difficult choice—was chosen over another. In which case, sufferable (Sufferance +
Endurable) may be a better choice of
terminology. It connotes the policy
decision that is less than
satisficing, and one that also elicits much highly-charged emotion(10) and
dismay on many sides. This could well
be the case in such areas as security vs.
individual rights, as in the Patriot Act.
The
Policy Issue:
Following the terrorist activities of
September 11, 2001, we, the people, and our government faced a quandary—the
issue of national safety and security on the one hand, and individual rights
and liberties on the other. American citizens were devastated over the
September 11, 2001 terrorist attack on the nation, not only for its human toll,
which was painful enough, but also for the collateral demise of the sense of
security and invulnerability within this nation. This sense of security had been given a massive blow with the
1993 bombing of the World Trade Center, and the latest attacks on the civilian
population in the United States sounded its death knell.
In order to restore security and
stability, Congress passed Public Law No. 107-56, the USA Patriot Act (USAPA)
also known as the Anti-Terrorism Bill.
President Bush signed the bill into law on October 26, 2001. The intent of this bill is stated as
follows: “An Act to deter and punish
terrorist acts in the United States and around the world, to enhance investigatory
tools, and for other purposes.”
This bill has laudatory political ideals behind it. Its very name—the USA Patriot Act—makes a
plea for patriotism, and also secondarily, makes it difficult for one to criticize
such a bill for fear that one might not be considered patriotic. Yet, in a free and open democracy such as
ours, other worldviews inevitably and simultaneously must prevail regarding
liberty costs. While deterrence as the
objective of this new law is supported by all, many believe that the passage of
this anti-terrorism law has deeper implications for the political curtailment
of individual rights in this country.
Critics of this bill assert that legislation was rushed through
Congress(11), without adequate study and hearings of expert-commentary on the
vast majority of sections included therein(12).
The bill, consisting of Titles I-IX, is
343 pages long. It is far-reaching in
scope. This legislation makes changes
to over 15 statutory laws in small and large ways. The Act substantially increases the police power of domestic and
international U.S. law enforcement and intelligence agencies. Because it has eliminated many of the checks
and balances(13) that allowed the judiciary to ensure that state police power
is not abused, this bill has come under strong fire from civil
libertarians. The center for Democracy
and Technology (CDT) notes, “There is potential for serious collateral damage
to our Constitution.” A similar
sentiment was earlier expressed in Brown v. Glines (1980)(14)when
Justice William Brennan observed, “The concept of military necessity is
seductively broad and has a dangerous plasticity. Because they invariably have the visage of overriding importance,
there is always a temptation to invoke security ‘necessities’ to justify an
encroachment upon civil liberties. For
that reason, the military-security argument must be approached with a healthy
skepticism.”
The “lesser-of-evils” camp also may see
this legislation as a slippery slope, as have the policymakers. Policymakers have shown some concern by
including sunset language provisions in this bill for the year 2005. This, however, say critics, will not help,
as the provisions can be reinstated.
Both sides of the debate face the ultimate quandary of public
policies—i.e., the quandary of values in public policymaking that involves
choosing between values—i.e., between the social good of security and stability
vs. the individual good of liberty—each of which on its own would be considered
desirable. However, those who support
the legislation say that in this instance—i.e., at a time of great trauma to
the nation—there were an array of choices that the government encountered, but
none of which could have been considered optimum. In choosing between alternatives, they chose the one that does
the least harm. This is the
“lesser-of-evils” principle (Madsen and Shafritz, 1992).
2.COLLATERAL DAMAGE TO INTELLECTUAL LIBERTY:
Intellectual freedom of expression
is one of the liberties that is likely to take a hit from the USAPA. This also includes the freedom of
universities, and individuals and groups within them. A number of issues are worrisome in this regard. These are divided into general concerns and
specific concerns:
General
Concerns:
Generating
a Suspect Class:
It must be acknowledged that the
government has done an excellent job in reaching out to communities via
television and other advertisements, asking the general population to refrain
from unfairly targeting minority citizens who are either Middle-Eastern, or
look like Middle-Eastern peoples. This followed in response to several
incidents around the country where people were randomly selected for
retaliation based entirely on visual characteristics—color, physiognomy and and
dress(15),(16). Schools, colleges and
universities are some of the common venues where Middle-Eastern, and other races (in addition to those who might
simply look Middle-Eastern) generally cluster.
Thus, universities, colleges, schools and other public venues in
California were closed after the bombings to prevent retaliation. Yet, now via
the USAPA, the government itself targets (what amounts to) a suspect class of its own citizens
without providing the proper legal safeguards statutorily and constitutionally.
Examples of American-Japanese in World War II, the Chinese-Indians during the
Indo-Sino conflict of the 1960s, and others come to mind.
Redefinition
of Terminology:
Amnesty International argues that some of
the definitions of “terrorism” or “terrorist” used in the legislation are so
broad they could be used to criminalize
anyone out of favor with those in power.
The first Amendment’s right to freedom of association and expression
might well be compromised—especially in intellectual circles (ibid,
11/29/01). There are new, as well as
three expanded, definitions of terrorism.
In Sec. 802, the definition of domestic terrorism raises concerns for
intellectuals engaged in legitimate activity, which could result in terrorism
charges, especially if violence has occurred.
The Patriot Act expands other definitions of terrorism for acts
transcending national borders, and on federal terrorism. These will expose more intellectual activity
to surveillance and liability for “harboring” and “material support.”
Destruction
of Presumption of Innocence:
One cannot help but agree with Attorney
General Aschcroft’s claims that individuals who commit terrorist acts must be
apprehended and brought to justice swiftly.
Yet, the Patriot Act sweeps in with a very broad brush even “suspects”
into this class of people—i.e., those who have not yet been proven guilty. This
circumvents the guarantees under the Sixth Amendment (17) in the Bill of Rights
that accrue to any individual in a civilian or military court. It is thought that the Patriot thus damages
the presumption of innocence doctrine(18).
This paper looks at several issues
with particular reference to certain institutions that might be impacted more
than others—for example intellectual sites, such as colleges, universities and
their faculties and students.
Specific
Concerns:
Increased
Surveillance:
The legislation extends surveillance
powers from written records to electronic sites. This in itself is not out of order. Government must keep up with current technology use, and unlike prior
anti-terrorist statutes, today much of the work of higher education is
conducted electronically. How can the
field agents measure intellectual curiosity (the legitimate backbone of
research) versus true evil intent? Some
confusion might easily be possible. The
government now may also tell a judge that someone is a suspect merely because
they have peeked at him or her browsing the web and that the information being
sought is “relevant” for criminal investigation. Furthermore the government is not obligated to tell the
individual that it is doing a sneak peek.
For example, might a professor teaching about terrorism, have a module
of her curriculum picked up at random, without regard for the entire content,
and she, herself, become a target for surveillance? Any number of courses in the areas of political science,
sociology, and other related social science disciplines can, and do,
carry such material. In doing her
professional duties and carrying out her research, were our hypothetical
professor to attend some political rally, would she be under more
scrutiny? Herein lies the worry over
the interpretation of the data. What
about medicine or biology, where a student or professor could be doing
legitimate research on a suspected pathogen?
Already these people are subjected to various kinds of research
controls. Can the federal government
now step in and search and seize laboratory research? It is easy to see how the problem could escalate. Under this legislation, Internet Service
Providers (ISPs) network administrators, and organizational elites can
authorize surveillance of “computer trespassers” with judicial order. The FBI and the CIA can also go from one
phone to another, and one computer to another without the showing of relevance
of criminal investigation.
Invasions
of Privacy:
An intellectual being interrogated is no
longer entitled to attorney-client privilege, where discussions between the two
are held in confidence. It brings to
mind the privacy violations of individuals during the McCarthy era, and the FBI
investigations of Martin Luther King and other civil rights groups in the
1960s—where confidential information was taped. Furthermore, university lifestyle is conducive to mixed racial
marriages. Will the federal government now be permitted into the bedroom of a
faculty member who is married to a person from a suspected class to ensure
safety and stability of the nation?
It is also important to note that
this law supercedes existing state and federal privacy policies if the FBI deems
it necessary to obtain information connected to an intelligence
investigation. Under its Titles, I, II,
V-IX,(19) authorities may browse through medical, financial and educational
records (including library records) without showing evidence of need to do
so. If the FBI states that information
is required in connection with a terrorist investigation then the individual’s
private information must be revealed.
DNA
Samples:
In Sec. 503, the executive branch can
order collection of DNA from known terrorists. This is a legitimate activity. However, the section also allows for
collection of DNA from any person suspected of “any crime of violence.”(20)
Might this not be construed as unwarranted search and seizure, forbidden under
the Fourth Amendment of the Constitution?
Military
Tribunals:
Concern over military tribunals is
expressed especially when civilian courts are functioning appropriately. The restrictions of a military tribunal will further impact
judgments on so-called “suspect” individuals.
3. POWER, SECURITY AND LIBERTY:
Assumption
of Extra Powers by the Executive Branch?:
There are those who see the USAPA as an
exercise in assumption of prerogative powers for the Presidency. This theory of executive privilege was
espoused by John Locke in his Second Treatise of Government, 1690, where he
noted: “many things there are which
the law can by no means provide for; and those that must necessarily be left to
the discretion of him that has executive power in his hands.” President Abraham Lincoln used this theory
of executive power in support his assumption of dictatorial power during the
civil war. Here Lincoln saw it fitting
for the chief executive not only to slightly exceed the Constitution but also,
perhaps, to go well beyond constitutional bounds.(21) Since then when other
presidents have sought similar arguments to go beyond the Constitution the
Supreme Court has checked these assumptions of “executive privilege.”(22) As
noted by Shafritz and Russell, “…the theory of executive power is quietly
reserved to support the efforts of a leader, who sees the nation through a time
of crisis; or alternatively, it lurks in the hands of an unprincipled
opportunist or demagogue to stifle republican institutions” (ibid, 48, 2000)…. Many view this as being counter to the
provisions of the Tenth Amendment of the Constitution, which states: “The powers not delegated to the United
States by the Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people.”
Peter A. French has observed that
even though public officials such as presidents must engage in acts that for
the rest of humanity are morally wrong, they could be exonerated and not be
condemned for they do these acts in the name of all citizens with our implicit
consent (ibid, 15-24, 1983).
These wrongs, as Michael Walzer has noted, are unique to duty,
unlike the wrongs of ordinary citizens (ibid, 160-180, 1973). While conceding that these wrongs are
“unique”, however, Walzer says that the
wrong action taken is still a
“wrong.” If the wrongs amount too greatly, such individuals need to punish
themselves, and save the office from embarrassment, by resigning from
office. Since public policies like the
USAPA are, in fact, social experiments, time will tell how much wrong will
occur. In this case, either the
provisions will be sunsetted, or there may be so much hue and cry that
officials will be compelled to resign in response to democratic demands.
Enlarged
Role for the Federal Government:
When Health and Human Services Secretary
Tommy Thompson was Governor of Wisconsin, he was one of those who called loudly
for states’ rights, noting that the federal government was growing too powerful
and that states had to go to Washington on bended knee “to kiss the ring”
(Shafritz and Russell, 174, 2000).
Today, he and other Republicans in the administration uphold the
competing doctrine of federalism to the letter, with even greater powers to the
federal government, as shown in the USAPA.
On the other side, civil libertarians claim that this bill circumvents
the First, Fourth, Fifth, and Sixth Amendments to the Constitution, and lays
the framework for a police state(23).
It gives the federal government large powers to target anybody who is
deemed a threat to its authority. They
argue that the statute goes well beyond the scope of fighting terrorism.(24)
Local governments are protesting the law.
For example, in Portland, Oregon, the “Anti-McCarthyism” doctrine is
invoked over police questioning of students and other individuals who are not
associated with any crime. It is said that such questioning of the citizenry
“goes too far.” Oregon’s Attorney
General has declared that police departments do not have to do this. Police Chief Mark Kroeber agreed. Similar local government fears of the USAPA
and its targeting of “suspect classes” have been expressed in Eugene, Oregon,
Washington State, San Francisco and San Jose (Leherer News Hour, 12/17/2001).
4. THE DIRTY HANDS
DILEMMA:
Quandaries of ethics such as those
inherent in the USAPA 2001 are teleological and utilitarian based on costs and
benefits. In this case, as in others,
someone benefits more than someone else.
There is a benefit to security, but also a cost. The one that pays could do so heavily vis-à-vis
the denial of civil liberties. Yet,
what is the government to do? How can
it be pure and perfect in everything it does?
After all it manages a plurality of interests—the very thing that was
seen to be useful in a democracy at the country’s founding. Government must necessarily and often dirty
its hands in one way to provide benefits in some other way. As noted by the Communist leader in the play
Dirty Hands, “I have dirty hands right up to the elbows. I’ve plunged them in filth and blood. Do you think you can govern innocently?” (Sartre, 1955). The issue is that if the politicians have dirty hands, it is by
our consent that they are there and by our consent that public policies are
promulgated.
The dirty hands dilemma is a
perennial problem in implementation of the law of the land. Public officials “dirty” their hands when
they implement the law in a wrong way to promote the greater social good. The issue surrounds the dilemma involved in
administrative commitment to a wrong to further good political ideas. Implementation of the law, whether at the
hands of a street-level bureaucrat or judge is the point at which public policy
becomes subject to interpretation and decision. What a public agency or agent must do to further a political ideal
might directly clash with moral values.
This is particularly evident in the administration and implementation of
the USAPA. Here the Machiavellian
principle of utility “when the act accuses, the result excuses,” (The Prince)
comes into play. However as Madsen and
Shafritz point out (1992) two additional bipolar issues must be taken into account in discussing the
problem of dirty hands. Firstly, since
public officials act with our consent and on our behalf, how can they be
accountable for something that is simply a requirement of the role? This is the well-known functionary
argument employed by Adolf Eichmann(25).
In this a narrow interpretation of the law might teleologically
prevail. For example, putting all
suspected students or faculty under surveillance. Secondly, and in contradiction to this view, is the notion that
moral obligation is still applicable to the public officer doing the wrong
(Madsen and Shafritz, 210, 1992). Here
a broader commitment to ethics and careful administration of the policy is
required on deontological grounds. How
does a public official simultaneously manage both roles in administering the
USAPA?
Finally there is the issue, taken up
earlier in the section on executive privilege, as to whether it is permissible
for the executive to do something less than ethical when the country is in
crisis in order to make the situation right again. The famous Platonic “noble lie” is one of the many bases of this
argument. Sissela Bok addresses this
issue in her book Lying: Moral Choice in Public and Private Life. Her position is that even if there are
justifiable lies in government—as in a crisis situation or for national
security—engaging in them has its own grave risks, and hence they should be
avoided (1978). These are difficult issues, made more difficult in complex,
relativized relationships among people across borders and cultures.
1.
Here
“useful” is drawn from James Madison’s theory of utility of a multiplicity of
interests, which he claimed would have a moderating influence on special
interests to the benefit of democracy.
As Madison noted in his famous argument for democratic government: “In the extended republic of the United
States, and among the great variety of interests, parties, and sects which it
embraces, a coalition of a majority of the whole society could seldom take
place on any other principles than those of justice and the general good.”
(Federalist 51, 1787).
2.
The concept
of teleological ethics derives its name from the Greek telios or
purposeful. Teleological ethics takes
into account, ends, outcomes, or
purposes of action.
3.
The concept
of deontological ethics derives its name from the Greek deontos, or
obligation. Deontological ethics speaks
to obligations that are correlative with citizenship rights.
4.
Satisfactory
+ Sufficient (Simon, 1991).
“Models of what is called rational judgment in cognitive science,
economics, biology, and other fields
have traditionally held that [people] strive to reach the best possible, or
optimal, judgments by statistically weighing and comparing all information
relevant to a task. This scenario
largely ignores time pressures. Even if
the full solution eludes their grasp, this view states, creatures [people] look
for ways to edge closer to optimality.
As an alternative to optimality it is usually too difficult for a person
to calculate an optimal strategy [and] in many situations no single best
solution exists” (Bower, 1999).
5.
California’s
Proposition 209—known formally as:
“Prohibition Against Discrimination or Preferential Treatment by State
and Other Entities,” November 1997.
6.
Where no
single best solution exists, and solutions are less than satisfactory and/or
sufficient.
7.
“Whereas
well-structured and moderately-structured problems contain preference rankings
that are transitive—i.e., if alternative A1 is preferred to alternative A2, and
alternative A2 is preferred to alternative A3—ill-structured problems have
preference rankings that are intransitive (Dunn, 105, 1988).
8.
One is
again led back to Mitroff/Sagasti, 1973, which have pointed us to the
fundamental limitations for finding solutions to the ill-structured
problem. Unlike well-structured and
moderately-structured problems (Dunn, 105) where problem values are
transitive and can be evaluated in relation to each other, ill-structured
problems present the quandary of preference—it is impossible to select a single
policy alternative that is preferred to all others.
9.
Some have
referred to the USAPA as “new-age
McCarthyism” (Rothschild, 2002).
10.
The bill was
put together in less than a month and has many uncertainties connected with
it. It has continued to draw fire about
lack of protection of civil rights of various groups. Despite this President Bush noted, “the bill was crafted with
skill and care, determination and a spirit of bipartisanship for which the
entire Nation is grateful [and] met with an overwhelming agreement in Congress
because it upholds and respects the
civil liberties guaranteed by our Constitution” (Bush, G.W., 2001).
11.
The
hatching period of public policy does not necessarily have to be lengthy. Another policy in response to imminent
national need —the Marshall Plan, [Public Law 472, April 3, 1948] was conceived
in 1947 and passed in 1948—a short time as well, but USAPA was rushed to
approval—due, of course, to the
unprecedented nature of the external threat that had occurred within the
nation.
12.
Many of
these checks and balances were put into place after previous abuses of
surveillance powers of such agencies—particularly the issue of spying by the
FBI and others on civil rights activities,such as that done on Dr. Martin
Luther King—information that came to light in 1974.
13.
Brown v.
Glines, 444 US 348,
1980.
14.
Amnesty
International documented 250 incidents on Sikhs—who originate from the Indian
subcontinent and 540 incidents on
Arab-Americans in the week following the hijackings (ibid, 11/29/2001).
15.
Amnesty
International documents incidents of mosques as well as Hindu temples that have
been fire-bombed. Incidents in the
United States have included Yemeni-Americans, Sudanese, and Christian
Middle-Easterners (ibid, 11/29/2001).
16.
Amnesty
International documents of mosques as well as Hindu temples that have been
fire-bombed. Incidents in the United
States have included Yemeni-Americans, Sudanese, and Christian
Middle-Easterners (ibid, 11/29/2001).
17.
Amendment
VI: In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury of the
State and district wherein the crime shall
have been committed, which district shall have been previously
ascertained by law, and be informed of the nature and cause of the accusation;
to be confronted with the witness against him; to have compulsory process for
obtaining witnesses in his favor, and to have the assistance of Counsel for his
defense.
18. Presumption of Innocence:
The indictment or formal charge against any person is not evidence of
guilt. Indeed, the person is presumed
by the law to be innocent. The law does
not require a person to prove his innocence or produce any evidence at
all. The Government has the burden of
proving a person guilty beyond a reasonable doubt, and if it fails to do so the
person is (so far as the law is concerned) not guilty. (The Electric Law
Library Lexicon, http://www.leclaw.com/def/i047.htm)
19.
Title I: Enhancing
Domestic Security Against Terrorism.
Title II: Enhanced Surveillance Procedures. Title V: Removing
Obstacles to Investigating Terrorism.
Title VII: Increased
Information Sharing for Critical Infrastructure Protection. Title VIII: Strengthening the Criminal
Laws Against Terrorism. Title
IX: Improved Intelligence.
20.
On the
surface, a “violent” act, seems easy to detect. In practice, however, violence can be extended to speech, as a
form of future action, as well.
21.
Lincoln
noted: “was it possible to lose the
nation and yet preserve the Constitution?
By general law, life and limb must be protected, yet often a limb must
be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures otherwise
unconstitutional might become lawful by becoming indispensable to the
preservation of the Constitution through the preservation of the nation.”
22.
In Youngstown
Sheet and Tube Co. v. Sawyer, 1952, the Court held that President Truman
had exceeded his powers. Later when
President Nixon in 1974 claimed that the Constitution provided him with
absolute and unreviewable executive privilege—i.e., the right not to respond to
a subpoena in a judicial trial for his tape recordings in the Oval office--the
Court, however, forced the President to turn over the tapes. This caused
the resignation of Richard Nixon from presidential office.
23.
Amendment
I: Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or the press; or the right of the people
peaceably to assemble, and to petition the government for a redress of
grievances. Amendment IV: The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no warrants shall issue, but upon probably
cause, supported by oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized. Amendment V: No person shall be held to answer for a
capital, or otherwise infamous crime, unless on a presentment or indictment of
a grand jury, except in cases arising in the land or naval forces, or in the
militia, when in actual service in time of war
or public danger; nor shall any person be subject for the same offense
to be twice put in jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against, himself, nor be deprived of life,
liberty, or property, without due process of law; nor shall private property be
taken for public use, without just compensation. Amendment VI: In all
criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury of the state and district wherein the crime shall
have been committed, which district shall have been previously ascertained by
law, and to be informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory process for
obtaining witnesses in his favor, and to have the assistance of counsel for his
defense.
24.
Ramifications
of his law are far-reaching in their influence. One of the countries that complained that their freedoms have
been compromised is Egypt, where it is believed that under coercion by the
American government, legitimate, non-terrorist organizations are being targeted
and marginalized (Leherer News Hour, 11/30/01).
6. CONCLUSION:
The tension between strong
government that can provide security, versus the liberty interest of
individuals is a concept as old as the foundations of the country itself. The Founding Fathers worried about how they
could make security and stability compatible with democracy (Diamond, 1981)
which they saw as having dangerous propensities to folly, feebleness,
ignorance, not to mention tyranny of majorities. On the other hand they also feared that the strong and stable
administrative structure needed to carry out public policy might well hinder
its original democratically-derived intent.
Indeed, despite these concerns The Framers did make, as Tocqueville
noted, “democratie safe for the
world” (as safe as it could be) with their system of checks and
balances, and levels of government in the American federal system of
government. Yet, throughout our history, as a nation, we have worried about
powerful government vesting itself with more powers, versus individual freedoms
and liberties guaranteed by our Constitution.
Such is the issue seen in the Patriot Act. No one can argue that the country needs security from terrorist
attacks, but how do we secure this without endangering some liberty
interests? Those whose liberty is
denied in these circumstances could well ask whether the majority, who have
consented (via the national principles of sovereignty and republicanism) are in
fact respecting liberty of others? It
is a thorny issue.
Are we as a nation too naïve that we
give consent to our leaders to promulgate policies, yet shudder from the full
ramifications of them? We want a clean
house, but abhor the dirty tasks involved in cleaning it. Yes, it is not a perfect world and we
compromise, satisfice and suffer policies, because as yet we have no
formula to optimize. The issue does not
rest here. It is appropriate to be
vigilant and to monitor to what extent we must dirty our hands on individual
liberty issues to achieve collective good, for we do have correlative
responsibility to be cautious about strong government, lest it get out of hand.
Thus, when we—through our various watchdog agencies—note: “governments must not use the ‘war’ or
terrorism to introduce draconian measures that limit civil rights and allow
violations of human rights. Such
measures are likely to stifle dissent and curtain basic freedoms. For this reason they must be resisted” (Amnesty
International, 11/29/01). In a similar
vein, when Katz notes, “we must not sacrifice our most fundamental
principles or we run the risk of losing our freedom even at the same time that
we prevail over those who hate us for our very system of freedom” (ibid,
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BIOGRAPHICAL SKETCH:
BREENA E. COATES, Ph.D., is Chairman of the Divisions of Business and Public Administration, and Assistant Professor of Public Administration at
San
Diego State University--Imperial Valley Campus. Her research
interests
are: public policy impacts on organizational behavior; organizational behavior
in global organizations; informational technology impacts on organizational
behavior. Dr. Coates teaches
administrative behavior, organizational behavior--managing across borders and
cultures; and administrative law at San Diego State University. Professor
Coates has written and published in scholarly journals and books in the above
fields.
ADDRESSES:
Breena
E. Coates
School
of Public Administration
San
Diego State University—IVC
720
Heber Avenue
Calexico,
CA 92231
(760)
768-5542, (760) 353-0558, FAX (760) 768-5631
bcoates@mail.sdsu.edu