2004, George W. Bush Defeats John Kerry: Due Process, Terrorism, And The Constitution – Guest Essayist: Andrew Langer
“One of (PATRIOT Act II’s) provisions would apparently enable federal employees to strip US citizens of their rights without due process. More broadly, it would create a separate, very shadowy justice system for terrorist suspects in which most of the rights and procedures normally guaranteed criminal suspects can be abrogated at the discretion of the government.” – John Kerry, A Call To Service, pp. 177-178 (2003)
To read those words in June of 2016, one might otherwise think that they were written by a Conservative Republican, a darling of the National Rifle Association. But no, they were written by then-candidate John Kerry in the run-up to the 2004 presidential election. Kerry was trying to contrast himself with the measures taken by President George W. Bush, who would be his rival the following year, and the discussions being undertaken as the successor to the original PATRIOT Act was being considered.
There is no small amount of irony to be seen in those words, especially this week, which saw Democrats take to the floor of the US House of Representatives to stage a “sit-in” demanding that congressional Republicans hold a vote on, among other things, whether the kinds of rights-stripping lists Kerry warned against in the 2004 election could be used to deny Second Amendment rights to American citizens.
Let’s underscore that point: former civil rights leaders staged a protest on the floor of the US House of Representatives to demand that Congress circumvent the due process rights of Americans by using the same secret lists that Democrats like Kerry complained about just over a decade earlier.
Both the initial PATRIOT Act, and its successor, PATRIOT II, were written while America was still reeling from the terrorist attacks of September 11,, 2001. Though PATRIOT II was being considered several years after 9/11, the wounds of those attacks were still very fresh in Americans’ minds—and one might consider that the same mentality that drove many in Congress to consider both pieces of legislation is what is driving Democrats in the wake of the recent Orlando night club shooting.
But that is, as always, very dangerous thinking, especially from a constitutional perspective. In 1992, Supreme Court Justice Sandra Day O’Connor wrote the majority opinion in New York v. United States, and said, both eloquently and rightly that,
“The Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.” [Emphasis added]
Justice O’Connor’s admonition, in that particular case, pertained to laws mandating the transportation of nuclear wastes within a state’s borders—but clearly it has broad application to a host of federal public policies (including, for example, the mandate via the “Brady Handgun Violence Prevention Act,” commanding state and local law enforcement authorities act as agents of the federal government in conducting background checks, as was at issue in Printz v. United States five years after New York).
The admonition in New York v. United States also has broad application across partisan and philosophical lines—the lesson is clear, one is ill-advised to use a crisis to drive public policy decisionmaking, whether that decisionmaking is being pressed by Democrats or Republicans.
Obviously, Republicans own some measure of culpability for driving crisis-borne policy in the post 9/11 world. They held the presidency and both houses of Congress. Moreover, Justice O’Connor recognized that such policies would invariably happen, which is why she issued her warning.
So by the time the 2004 election rolled around, it was high time that policymakers would step in and consider the impact of post-9/11 homeland security policy on individual rights and the Constitution—and given that the Democrats were the opposition party trying to win the White House (and win back both houses of Congress) in 2004, it is only natural that they would take the position that some questions had to be asked regarding due process rights and the expanding national security state.
But in a world that is fifteen years past 9/11, and twelve years past the 2004 elections, enough time has passed that both sides ought to have learned their lessons regarding the balance between national security and civil liberties—recognizing that freedom, the broadest protection of individual rights—is what we ought to strive for.
 New York v. United States, 505 US 144, 187 (1992)