Patriot, Privacy, and Politics

By WAYNE McCORMACK

It seems that every generation in U.S. history must go through the experience of a national crisis, threats to civil liberties, and a resurgence of interest in personal freedom. For most of us, the personal contact with the “war on terrorism” is just that we endure long lines at airports or have our belongings searched while entering a courthouse. But we also read and wonder what is actually happening with Arab men detained and, according to internal Department of Justice (DOJ) reports, in a few instances mistreated pending review of their immigration status. There are now three persons known to be imprisoned as “unlawful enemy combatants” in military custody with little or no benefit of counsel or judicial review. And the DOJ remains vague about its use of wiretap and record-seizing powers under the USA PATRIOT Act (PATRIOT).1
Much of the current controversy focuses on PATRIOT for political reasons. The vast bulk of the law would be subject to only mild debate were it not that the administration has made it the focal point of its domestic “war on terror,” thus making it also the lightning rod for critics. In a sense, PATRIOT has come to stand for other policies such as administrative detention of aliens or military detention of alleged terrorist plotters. There are many elements in the recent approaches to terrorism to be explored, including ethnic profiling, investigative detentions, military detentions, intelligence gathering, and prosecutions for “material support of terrorism,” but this article, in focusing on PATRIOT, merely attempts to decipher which issues are about the law and which issues are about enforcement.

Taking the Broad View: Courts and Politics
There is nothing unusual or particularly threatening about heightened security and decreased mobility during time of war. As Professor Oren Gross points out, “Experience shows that when grave national crises are upon us, democratic nations tend to race to the bottom as far as the protection of human rights and civil liberties, indeed of basic and fundamental legal principles, is concerned. Emergencies suspend, or at least redefine, de facto, if not de jure, much of our cherished freedoms and rights.”2 Gross goes on to point out that, so far at least, the ship of State tends to right itself as the emergency passes, but in the meantime the response threatens the very democratic values for which the State intends to stand.
Some may be tempted to sit back, take the “longer view” of history, and assume that as the crisis eases, protection for civil liberties will regenerate in both political and judicial settings. Or it might be tempting to take the opposite view, that this is a crisis for civil liberties that must be fought with every tool in every forum lest even a minute erosion of our freedoms become a landslide. Either approach could be tied to an assumption that the federal judiciary will take care of any serious problems that emerge.
It has been over 50 years since U.S. courts dealt with these issues in a time of recognized “national emergency,” and many observers note that the American judiciary has not exactly been aggressive in response to government actions in times of crisis.3 As noted judges such as Learned Hand4 and Robert Jackson5 have pointed out, the judiciary is not the final bulwark against government repression. We the People ultimately must decide to what extent we are willing to sacrifice freedom for security.6
The rhetoric of war in responding to terrorism has its historical roots in some loose use of language beginning with the “War on Poverty” followed by the “War on Drugs.” Some would argue that the “War on Poverty” did not do much to civil rights, but the “War on Drugs” may have pushed the envelope.7 Now enhanced powers of law enforcement, legislated in response to the “terrorism” threat, are being deployed in pursuit of drug dealers and other criminals.8
Most of the issues ultimately are not about the law so much as they are about the people, both those enforcing the law and those involved in the political process. How well We the People respond to these challenges is up to us.

What PATRIOT Provides
PATRIOT was passed on October 26, 2001, just six weeks after 9/11. It was a compendium of provisions that had been drafted and debated over the prior decade by various elements within the federal government. It runs 130 pages in the Statutes at Large. It contains 156 sections, most of which contain several technical and detailed amendments to various other sections of existing law. At a rough guess, it probably contains close to a thousand individual statutory changes, most of which cannot be understood without seeing how the amending language fits into pre-existing law. It is likely that not all members of Congress understood fully what this complex legislation did when it was passed. It has taken many people two years now to parse through the language to determine the actual import of the statute.9
What did PATRIOT do? Not that much, actually. There are a number of potentially significant provisions, and one that could well be unconstitutional, but most of the statute consists of tweaking existing law in some reasonably non-controversial steps.

Gathering Intelligence
The Foreign Intelligence Surveillance Act (FISA) in 1978 created a special court of federal judges10 to approve electronic surveillance (wiretaps and bugs) for the purpose of gathering intelligence on foreign operatives.11 FISA as amended by PATRIOT (1) permits “roving” surveillance of persons rather than site-specific surveillance, (2) allows application for a FISA surveillance or search order when gathering foreign intelligence is a significant reason for the application rather than the reason, and (3) allows sharing of intelligence information with prosecution teams. Prior to PATRIOT, when information was not easily shared with prosecutors, there were few motions to suppress and the courts could rely on a specialized approach to probable cause for gathering foreign intelligence information.12
The major significance of FISA is that the court does not inquire whether there is probable cause to believe that a crime has been committed and only seeks assurance that one purpose of the surveillance is information about foreign operations or potential terrorist activities. The effect of the PATRIOT changes will be to allow interception and recording of communications of U.S. persons and use of those communications in a prosecution with a probable-cause showing prior to interception that relates only to the purpose of protecting against international terrorism. Absent the foreign intelligence element, this prospect would almost certainly violate the Fourth Amendment. We shall see whether the claim of need for flexibility and secrecy in pursuing foreign intelligence will persuade courts to permit this type of surveillance.13

Gathering Records
PATRIOT section 215 provides that either the FISA court or a magistrate judge shall order third parties (such as internet service providers, libraries, travel agencies) to turn over records upon an FBI certification that the records are sought in connection with an intelligence investigation.14 The third party is prohibited from disclosing to anyone that the records have been sought.
The ACLU has challenged this provision in a lawsuit in Ann Arbor, Michigan on behalf of Arab-American plaintiffs.15 The claimed problem is similar to that of surveillance—there is no required showing of probable cause to believe that a crime has been committed before seizure of these records, but here the constitutional issue is more starkly presented by the far-reaching potential of its use combined with the nature of the records likely to be sought.16

Tracking Communications
Prior federal statutes prohibited electronic eavesdropping on telephone conversations or computer and other forms of electronic communications without a court order, which was available only for investigation of specified crimes, and required notice to the parties to any conversations seized when the order expired. PATRIOT expands the “predicate crimes,” extends time periods for notice, and removes stored electronic communications from this protection (thus treating them as records susceptible to administrative demand or grand jury subpoena). Court orders authorizing trap-and-trace devices or pen registers (which record the source or destination of calls made to or from a particular telephone) are available on mere certification, rather than a finding of a court, that use of the device is likely to produce information relevant to the investigation of a crime. In general, this is a statutory issue rather than a constitutional issue because the Supreme Court has held that this information belongs to the telephone provider and thus is not subject to Fourth Amendment protections of the telephone user.17

Tracking Money
PATRIOT expands prior requirements for filing reports on suspicious financial transactions, imposes customer identification standards on banks, prohibits a bank from disclosing to a customer that information has been provided to an agency involved in an intelligence investigation or regulatory demand, and strengthens the ability to freeze or forfeit accounts connected to terrorist organizations.

Tracking Persons
PATRIOT authorizes extended detention of aliens pending a determination of whether a person is connected to terrorist activities, encourages expanded computerized monitoring of aliens, and authorizes funding for interpreters and investigative resources.

What PATRIOT Has Accomplished
This is a much more difficult question. While Attorney General John Ashcroft has toured the nation extolling the virtues of the Act, other units in the DOJ have been assuring Congress and the public that it really hasn’t been used very much. In May 2003, the DOJ Office of Legislative Affairs submitted 60 pages of public answers to 38 questions posed by the House Committee on the Judiciary.18 There were two questions as to which it claimed the answers were classified and did not make them public. For the most part, the answers downplayed the significance of PATRIOT, or at least its controversial aspects.
For example, in response to questions about the use of “sneak and peek” warrants, the DOJ said that the standard of “reasonable cause” was “in accord with prevailing case law” before the Act. As of April 1, 2003, it had sought 47 orders for delayed notice “and the courts have granted every request.” The tone of the answer would have us believe that 47 occasions in 17 months is not many more than under prior law, and that the Act just codified existing practice.
In response to questions about use of PATRIOT authority to detain aliens suspected of terrorist activities or links to terrorist organizations, the DOJ responded that it had not used this authority. “Numerous aliens who could have been considered for . . . certification have been detained since September 11, 2001 and the enactment of the USA PATRIOT Act. It has not been necessary, however, to use the new certification procedure in these particular cases because traditional administrative bond proceedings have been sufficient to detain these individuals without bond.”
On the other hand, the DOJ submitted 10 pages of information about how PATRIOT had enabled it to combat terrorist plots. The response stated that wiretap orders had been obtained in cases of suspected terrorism, that grand jury testimony and wiretap intercepts had been forwarded to intelligence agencies, that it had used subpoenas to obtain information from electronic communication providers, and that nationwide search warrants had been used in at least three instances. The general tone of this portion of the response is that PATRIOT has provided a number of useful, even valuable, and noncontroversial tools to make life easier for investigators.

What We Don’t Know
The DOJ has not provided details about the number of court orders issued under the revised FISA to obtain records “for an investigation to protect against international terrorism or clandestine intelligence activities.” This is the subject of the ACLU’s Michigan suit. FISA’s basic provisions, which allow surveillance with only a showing that a purpose is acquisition of intelligence related to foreign operations, are problematic enough and are saved only by the connection with foreign affairs along with some judicial oversight. The new authority could be read to provide very little judicial oversight because the judge “shall” issue the order with nothing more than a “not clearly erroneous” certification that the material is “for an investigation” that could potentially be broadened to access records of people only remotely connected to a suspect. If there is either an immediate threat or a completed crime, then other authorities exist for search warrants, wiretaps, and electronic surveillance. This provision is the most likely aspect of PATRIOT to be struck down by the courts, unless it is interpreted to mean that the showing of connection to prevention of terrorism means probable cause to believe that a crime (conspiracy to commit a terrorist act) has been committed. The problem is that we can’t be sure how FISA is being interpreted because most of the proceedings are secret.
The House Committee asked several questions about “FBI sweeps to monitor, question, arrest, detain, or deport various immigrants,” particularly those of Arab, Middle Eastern, or South Asian heritage. The questions focused on the number of persons, the details of the plans, the authority for the operations, and any prosecutions that resulted from the sweeps. The DOJ stated, “The answers relating to these questions are classified, and, accordingly, will be delivered to the Committee under separate cover.” There is no perceptible connection between these “sweeps” and PATRIOT.
Meanwhile, interest groups sought release under FOIA of the names and other information of persons detained in the post-9/11 investigations. The DC Circuit refused to require the DOJ to disclose any information,19 but in the course of the litigation some summary data did appear. The court divided detainees into three groups: INS detainees, those charged in criminal cases, and material witnesses. The first two categories were described this way:
Over 700 individuals were detained on INS charges. As of June 13, 2002, only 74 remained in custody. Many have been deported. INS detainees have had access to counsel, and the INS has provided detainees with lists of attorneys willing to represent them, as required by 8 U.S.C. § 1229(b)(2) (2000). INS detainees have had access to the courts to file habeas corpus petitions. They have also been free to disclose their names to the public.
The second category of detainees consists of individuals held on federal criminal charges (criminal detainees). The government asserts that none of these detainees can be eliminated as a source of probative information until after the investigation is completed. According to the most recent information released by the Department of Justice, 134 individuals have been detained on federal criminal charges in the post-September 11 investigation; 99 of these have been found guilty either through pleas or trials. While many of the crimes bear no direct connection to terrorism, several criminal detainees have been charged with terrorism-related crimes, and many others have been charged with visa or passport forgery, perjury, identification fraud, and illegal possession of weapons.20
With regard to material witnesses, the court stated that the DOJ had not provided data but it didn’t matter because the identity of grand jury witnesses is assiduously guarded from public scrutiny. Yet in the House Committee report, the DOJ stated that “the total number of material witnesses detained in the course of the September 11 investigation was fewer than 50” and only about five remained in custody more than 90 days. Again, these detentions are unrelated to PATRIOT.

What We Might Not Know
Now we come to the tricky part. How mistrustful of government officials should we be? Experience, and a good deal of rumor, with Joe McCarthy and J. Edgar Hoover were part of the basic civics education of a whole generation that is now the senior citizenry of the U.S. Our collective memories will guide our perceptions on some very important issues. What are the prospects that government officials could again assemble and misuse, either deliberately or accidentally, a host of information on ordinary citizens as well as on more vulnerable groups such as aliens or ethnic and religious minorities? By what mechanisms of law would this fear be either promoted or forestalled?
DOJ investigative guidelines address this type of issue by specifying the circumstances under which data can be assembled and retained when it is not to be used in a prosecution or civil action. The guidelines describe the differences among initial leads, preliminary investigations, and full investigations. If the checking of an initial lead or a preliminary investigation indicates insufficient reason to believe that a crime has been, is being, or will be committed, then data regarding the inquiry could ordinarily be expected to disappear from government files. But under the pressure of 9/11, a new concept has arisen called “data mining.”
Media accounts have highlighted a variety of data gathering and processing projects, some fanciful and some quite real.21 Meanwhile, PATRIOT along with various appropriations bills and oversight reports have encouraged the DOJ and Homeland Security to upgrade their computerized databases dramatically. Attorney General Ashcroft announced in February 2002 that databases from the State Department, INS, and FBI would be linked to provide connections identifying potential threats from suspected terrorists on various watch lists.22 The FBI announced in September 2003 that the combined database could be up and running by December 2003, noting that the “unified database also will allow the government to quickly correct errors resulting from similar names or faulty information.”23
There are two related problems with this kind of information accumulation. One is the sheer overwhelming volume of information collected, and the second is its susceptibility to corruption (in various senses of the word). Given the combination of both problems, it will be impossible for anyone to “watchdog” agencies and their accumulation of data on persons in the U.S. Before exploring these connected problems, let’s take a moment to examine the basics of American privacy concerns.

Why Should We Care About Privacy?
It is widely assumed that the reason for the Fourth Amendment’s limitations on search and seizure are to protect the innocent who might otherwise be subject to humiliation and harassment from government agents. It has also been suggested that these rules protect those who are guilty of something that should not be the focus of government attention.24 Basically, there are at least four distinct reasons for controlling government snooping into our affairs:

Substantive Abuse
Joe McCarthy did irreversible damage to the careers of many people as well as to the very fabric of citizen participation in government. J. Edgar Hoover’s notorious files on the Kennedys and Martin Luther King Jr. may have tilted balances of power in Washington for decades. The Nixon “enemies list” was a reasonably well-documented instance of government abuse of power.

Methods - Harassment
Closely related to substantive abuse of information are the prospects for harassment of politically active or disfavored groups and individuals. Neither the Fourth Amendment nor the First Amendment could possibly protect against all the informal methods of harassment that could occur at the lowest levels of street interaction between individual and police.

Methods - Deceit & Secrecy
Deceit and secrecy contribute to mistrust of government, which leads to anti-government actions, which can be used to justify greater controls on the populace. In a sense, repression breeds resentment, which in turn breeds more repression.

Mistakes and Factual Errors
The larger the data file, the greater the chance for mistakes and errors to creep in. With quantifiable data, such as numbers and symbols, computer programs can be built with relative accuracy and can be checked for verification. With more human data, there are fewer opportunities for correction. Moreover, as computer programs become more sophisticated and incorporate “fuzzy logic,” computers can be specifically instructed to do surprising things with information. Some of the possibilities for affecting the lives of ordinary citizens, such as freezing bank accounts or just leaving inaccurate impressions of their activities in the heads of agents, become increasingly likely as the data increases and data-mining programs proliferate.

What the Future Might Hold
In February 2002, a DOJ draft of PATRIOT II was leaked and immediately raised a hue and cry. As reported in the press, the draft “would allow the Justice Department to wiretap a person for 15 days without a warrant; federal agents could secretly arrest people and provide no information to their family, the media or their attorney until charges are brought, no matter how long that took; and it would allow the government to strip Americans of their citizenship for even unknowingly helping a group that is connected to an organization deemed to be terrorist.”25
The reaction to PATRIOT II from the left was quite predictable, but what apparently surprised the administration was the reaction from the conservative side of the political spectrum. Gun Owners of America posted an analysis on its website characterizing the proposal as “Terrorizing the American People.”26 The American Conservative Union cautioned that government should “take into account the civil liberties of the citizens.”
In August 2003, as Attorney General Ashcroft went on his speaking tour extolling the benefits of PATRIOT, Senator Orrin Hatch began promoting a watered-down version known as VICTORY (Vital Interdiction of Criminal Terrorist Organizations). This proposal attempts to combine counter-terrorism and drug enforcement into a single campaign against “narco-terrorism.” Several provisions would apply to both terrorism investigations and drug enforcement, such as easing controls on wiretaps and access to financial records that could be involved in money laundering, and prohibiting hawalas (informal methods of money exchange that are very popular with Asian and Middle Eastern expatriates). Much of the proposal is directed to sentencing in drug cases.27
Unless terrorist groups make another highly visible attack within the United States in the near future, it is unlikely that either PATRIOT II or VICTORY will receive much more than the cold receptions that both have obtained to this point.

What Americans Want
AG Ashcroft says that our “freedom is more secure because we are safer.”28 From the reactions to further legislative proposals, the American public could be heard as responding that “we feel quite safe enough now, thank you.” Obviously, that is not the real message. One can never be safe enough. There is always the prospect of violence around any corner. The more freedom we have, the greater the vulnerability to attack. Those are simple facts.
Ultimately, terrorism will prove to be little different from other crises that the U.S. has faced. We will give up some degree of liberty for some period of time to get us past the crisis. Then, the political psyche will start to reassert its ingrained demand for privacy and liberty. It’s really not about the laws so much as it is about the people, both those within government and those without. What We the People demand is what We the Government must provide.

Endnotes
1. The Act’s title sounds almost tongue in cheek: “Unifying and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism,” Pub. L. 107-56 (Oct 26, 2001). 2. Oren Gross, Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?, 112 Yale L.J. 1011, 1022 (2003). 3. William J. Brennan, Jr., The Quest To Develop a Jurisprudence of Civil Liberties in Times of Security Crises, 18 Isr. Y.B. Hum. Rts. 11 (1988). 4. Learned Hand, The Spirit of Liberty: Papers and Addresses of Learned Hand 189-90 (Irving Dilliard, ed., 3d ed. 1960). 5. Korematsu v. United States, 323 U.S. 214, 248 (1944)(Jackson, J., dissenting): “If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history.” 6. This is not to say that courts shouldn’t be expected to protect minority interests against the “tyranny of the majority,” but just to recognize that the rest of us have an obligation in this regard as well. 7. Judge Posner takes the interesting view that this is a good time to recognize that the “war on drugs has been a big flop” and to “redirect law-enforcement resources from the investigation and apprehension of drug offenders to the investigation and apprehension of international terrorists.” Richard A. Posner, Security Versus Civil Liberties, Atlantic Monthly (Dec. 2001). Meanwhile, as discussed below, Senator Hatch wants to conflate the two wars into a war on “narco-terrorism.” 8. David Caruso, “Use of Patriot Act Widens,” Associated Press (Sept. 15, 2003). According to this story, a county prosecutor in North Carolina is charging a methamphetamine manufacturer with making chemical weapons in violation of the state’s terrorism statute. It also was widely reported that the “Serial Sniper” case was prosecuted in Virginia under that state’s terrorism statute. 9. Much of the following summary is based on Congressional Research Service #RS21203. 10. 50 U.S.C. § 1803. 11. “Foreign intelligence information” and “foreign power” have complex definitions, but the common-sense notion of gathering information on foreign operatives will suffice for this purpose. FISA allows electronic surveillance without court approval only if the target is controlled by a foreign power and there is “no substantial likelihood” that communications of a “U.S. person” will be collected. “U.S. person” means a citizen, permanent resident alien, association in which a substantial number of members are citizens or permanent resident aliens, or a corporation incorporated in the U.S. An association or corporation does not qualify if it meets the definition of a “foreign power.” 50 U.S.C. § 1801(i). 12. United States v. Duggan, 743 F.2d 59 (2d Cir. 1984) establishes the basic proposition that the Fourth Amendment is satisfied by probable cause to believe that a target of the surveillance is an agent of a foreign power, which includes foreign political organizations. In United States v. Sarkissian, 841 F.2d 959 (9th Cir 1988), upholding the use of wiretap evidence in a criminal prosecution, the Ninth Circuit did not even mention the Fourth Amendment. In United States v. Isa, 923 F.2d 1300 (8th Cir. 1991), allowing FISC-approved electronic surveillance to be used in a state murder trial, the Eighth Circuit reviewed the FISA application to determine that “probable cause existed to believe that appellant was an agent of a foreign power and that each of the places where the electronic surveillance was conducted was being used or was about to be used by him.” 13. A motion to suppress in the “Portland Six” case challenges the very structure of FISA. United States v. Battle, CR 02-339 JO (D. Ore.), http:// news.findlaw.com/hdocs/docs/terrorism/ usbattle91903aclu.pdf. 14. PATRIOT § 215, 50 U.S.C. § 1861. 15. Muslim Community Ass’n of Ann Arbor v. Ashcroft, Civ. Action No. 03-72913 (E.D. Mich.). Plaintiffs include a number of organizations that base their standing to challenge section 215 on inferences of governmental investigations that have led to actions against their members. They allege a “reasonable belief” that records pertaining to these members have been obtained from third parties. The discovery battle to determine whether the government must disclose whether evidence related to this belief will be very interesting. 16. The nature of the records could easily implicate First Amendment values, including rights of association. 17. Generally speaking, these devices are not a “search” within the meaning of the Fourth Amendment because the information is created by a third party, the phone company, and no user could have a reasonable expectation of privacy in that information. Smith v. Maryland, 442 U.S. 735 (1979). 18. Letter from Jamie E. Brown, Asst. Atty. Gen. for Legislative Affairs to Hon. James Sensenbrenner, Chair of House Committee on the Judiciary, May 13, 2003. 19. Center for National Security Studies v. U.S. Department of Justice, 331 F.3d 918 (DC Cir. 2003). 20. Id. at 921. 21. See David Isenberg, Multitude of Databases Complicates Information Sharing, http://www.cdi.org/terrorism/infosharing-pr.cgm. This report for the Center for Defense Information lists 16 databases including NSEERS (National Security Entry-Exit Registration System) and TIPS (Terrorism Information and Prevention System), both of which were instituted post-9/11 to collect and track information on aliens and suspicious persons. 22. Laurie Kellman, Feds Link Anti-Terrorism Databases, Associated Press (Apr. 11, 2002). 23. Michelle Mittelstadt, Terrorism-watch Databases To Be Combined by Dec. 1, Dallas Morning News (Sept. 17, 2003). 24. Arnold Loewy, The Fourth Amendment as a Device for Protecting the Innocent, 81 Mich. L. Rev. 1229, 1244-45 (1983): In a Utopian society, each policeman would be equipped with an evidence-detecting divining rod. He would walk up and down the streets and whenever the divining rod detected evidence of crime, it would locate the evidence. First, it would single out the house, then it would point to the room, then the drawer, and finally the evidence itself. Thus, all evidence of crime would be uncovered in the most efficient possible manner, and no innocent person would be subject to a search. In a real society (such as ours), the Fourth Amendment serves as an imperfect divining rod. Consider the following hypothetical: Principal X of Y High School, because of a hunch that students A, B, and C each have marijuana in their respective lockers, opens the lockers with a passkey. In A’s locker, he finds marijuana, which is subsequently given to the police and used to convict A of possession of marijuana, for which A receives a year’s imprisonment. In B’s locker he finds a picture of his (Principal X’s) head attached to the rear end of a horse with the caption: “X is a Horse’s Ass.” In C’s locker, he finds a picture of C’s mother with the caption: “Mom.” Assuming that these searches were unlawful, conventional wisdom suggests that A’s rights were violated more than the others since only he suffered a criminal conviction by virtue of the search. Yet B’s and C’s legitimate privacy interests were more seriously intruded upon. B had a Fourth (and probably a First) Amendment right to keep his opinion of the principal to himself. His belief that the principal’s prying eyes would not see his crude, but arguably cute, caricature is a reasonable one which ought to be protected. Similarly, C’s hanging his mother’s picture in his locker (though along with apple pie and the flag, the paradigmatic affirmation of true-blue American values) could be a source of embarrassment if made known to the public. 25. Dean Schabner, Conservative Backlash: Provisions of ‘Patriot II’ Worry Those on the Right, ABC News (3/12/02). 26. The Patriot Act II: Terrorizing the American People, http://www.gunowners.org/ patriotii.htm 27. Ryan Singel, Patriot Act II Resurrected?, http:// www. wired.com/news/politics/0,1283,60129-2,00.html 28. A different but somewhat related point is that wars and national crises may enhance the growth of freedom both by direct action as in the Civil War and Emancipation, but also indirectly as in the advancing of the status of women during the two World Wars. Michael J. Klarman, Rethinking the History of American Freedom (reviewing “The Story of American Freedom,” an essay by Eric Foner), 42 Wm. and Mary L. Rev. 265 (1998).


Wayne McCormack is a professor of law at the University of Utah. He earned a Bachelor of Arts degree from Stanford University in 1966 and a law degree from the University of Texas in 1969. He has been teaching and writing in the area of constitutional law for over 30 years.

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