THE USA PATRIOT ACT

"Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism"

      This sweeping legislation was signed into law on October 26, 2001 without being read in its entirety and debated by Members of Congress.  Many of its provisions had long been sought by law enforcement agencies, but withheld on constitutional grounds. Sixteen of the provisions had 5-year sunset provisions attached to them. 

      On March 9, 2006 – a day before the sunset provisions were due to expire, President Bush signed into law the "USA PATRIOT Improvement and Reauthorization Act."  The revised Act contained mainly cosmetic changes, which did little to restore checks and balances.  One positive change – the requirement that the Justice Department would report to Congress on how PATRIOT powers were being used – was rejected by President Bush in the "signing statement" he added to the legislation when he signed it into law. 

A.  The original USA PATRIOT Act

      Some of the 342-page Act was not controversial.  But other provisions caused immediate concern.  Critics from all along the political spectrum were concerned about sections of the Act which allowed the government to:

•  Spy on innocent Americans.  The Act permits a vast array of information gathering on US citizens to be collected and shared with the CIA and other spy agencies without proper judicial oversight or other safeguards.  It puts the CIA back in the business of spying on Americans [Sections 203 and 901]. 

•  Wiretap you under a warrant that doesn't even have your name on it.  The Act changes the nature of warrants for wiretaps by requiring judges to approve a wiretap without knowing who is to be tapped or where it is to be placed  [Section 206]. 

• Search your home and not even tell you.  The Act allows law enforcement to conduct secret "sneak and peek" searches of your home.  Investigators can enter your home or office, take pictures and seize items without informing you that a warrant was issued for a very long time – if ever.  You may think you had a burglary – when it was in fact the FBI or police paying you a secret visit [Section 213].

• Collect information about what books you read, what you study, your purchases, your medical history and your personal finances.  The Act gives law enforcement broad access to any types of records – educational, medical, financial, sales, library, etc. – without probable cause of a crime.  It prohibits people who have been asked for these records – such as librarians or doctors – from disclosing that they have produced such records, under threat of prosecution and jail time [the gag provision].  While an order from the secret FISA court is required to obtain the information, the Act requires that a judge rubber stamp such orders  [Section 215].

•  Monitor your emails and watch what Internet sites you visit.  The Act permits the government to monitor Internet traffic and email communications no any Internet service provider without probable cause by obtaining detailed routing information like a web address.  While this provision is supposedly aimed at lawbreakers, it sweeps broadly because emails and Internet traffic information of innocent individuals cannot be separated from the activity of targeted individuals  [Section 216].

•  Label you a "terrorist" if you belong to an activist group.  The Act broadly expands the official definition of terrorism, so many domestic groups that engage in certain types of protest or civil disobedience could very well find themselves labeled as terrorists [Sections 411, 802].

•  Put immigrants in jail indefinitely.  The Act permits the indefinite incarceration of non citizens without the government having to show that they are, in fact, terrorists  [Section 412].

•  Present you with a National Security Letter (NSL) requiring that you hand over electronic communications or business records  – this is a kind of administrative subpoena which is issued by the FBI and does not have to be reviewed by a court.  If you tell anyone you have been given a NSL, you can be prosecuted and jailed.   According to press reports an estimated 30,000 NSLs have been issued every year since 9/11  [Section 505]. 

•  Take away your property without a hearing.  The Act allows the government to seize the assets of an individual or organization without prior notice or a hearing if the government says that they have engaged in or are planning an act of "domestic terrorism."  Under this law, the government could effectively bankrupt an organization with which it disagrees  [Section 806].

 

B. USA PATRIOT Improvement and Reauthorization Act 

Here are some positive features of the reauthorized Patriot Act:

•  The original Act's overbroad definition of domestic terrorism remains, but assets can only be forfeited if the organization or individual is involved in a serious federal crime.  

•  Any business or third party that receives a National Security Letter or Section 215 order requiring it to hand over the records of employees or customers has the right to consult with a lawyer and decide whether to challenge the demand.

•  There are new hoops for the FBI to jump through to get a Section 215 order to obtain "tangible things" from libraries, bookstores and other businesses.  These include the requirement that they provide a "statement of facts" demonstrating the relevance of their request and detailing what they are after to the secret FISA court. 

•  The Justice Department must annually report on the number of times it has used Section 215 and the Inspector General of the Justice Department is supposed to report on any abuses. [This provision was rejected by President Bush in his "signing statement"]. 

Several other provisions that sound promising are in fact cosmetic.  A few examples:

•  Although the new language provides for the right to counsel and the right to challenge the gag order accompanying Section 215, it does so under terms that are illusory.  First, the gag remains in place for a year.  Only then can it be challenged.  Second, all a high-level government official has to say is that the disclosure would harm national security or diplomatic relations for the gag to be upheld by a court.  Anyone who intentionally violates the gag provision can go to prison for five years. 

•  The Act continues to allow records that are NOT connected to an international terrorist or spy to be obtained using either Section 215 or a National Security Letter, despite the additional requirements in the application process for the Section 215 court order (remember, there is no court, not even the secret FISA one, involved in issuing a National Security Letter – just the FBI).  

•  New time limits have been added to "sneak and peek" searches. But the initial 30-day period under which the government can keep a search secret can be indefinitely extended by the court, and secret search warrants can be issued by the court to search any home or office without any link to terrorism whatsoever.  Nearly 90 percent of the sneak and peek warrants that have been obtained by the Bush administration involve cases that have nothing to do with terrorism.  

C.  The USA PATRIOT Act: it's not just about terrorism

      The PATRIOT Act has been used in all sorts of non-terrorism criminal investigations to get around Fourth Amendment requirements of probable cause to get a warrant.   This has given many of the Members of Congress who originally voted for it second thoughts.  In the words of Rep. Shelley Berkely (D-Nevada), "It was never my intent to have the Patriot Act used as a kitchen sink for all of the law enforcement tool goodies that the FBI has been trying to get for the last decades.  It's a classic case of bureaucratic overreaching.  It is Patriot Act creep" (Sacramento Bee, December 21, 2003).  

      Is the PATRIOT Act a critical tool in the war against terrorism?  For years the executive branch said it was.  In fact, it was said to be the essential tool that kept the country safe.

      But in January 2006, after revelations that President Bush had authorized the National Security Agency to spy on Americans without getting a warrant from the FISA court, a different interpretation was put forward by the Attorney General.   In a legal brief entitled "Legal Authorities Supporting the Activities of the National Security Agency Described by the President," Attorney General Gonzales cited two sources for the president's power to ignore the law requiring warrants before Americans could be spied on:  

      1.  The president had the "inherent authority" under the Constitution to do what he thought necessary in the fight against terrorism;

      2.  The president had been given the power to do whatever was necessary by Congress when it passed the Authorization for the Use of Military Force (AUMF) resolution sanctioning the war on Iraq.

The Attorney General implied that the USA PATRIOT Act is largely superfluous in the war against Al Qaeda because the president already had authority under the Constitution or AUMF resolution to do whatever he needed to do.  The PATRIOT Act was mainly useful against non Al Qaeda terrorists and "in contexts unrelated to terrorism" (Boston Globe, January 25, 2006).   

Since the entire USA PATRIOT Act has now been made permanent except for three provisions which have 4-year sunset provisions attached to them, Americans may well be living with the Act for many years to come.  

QUESTIONS: 

1.  Where does this leave the Bill of Rights?

2.  Which amendment is most affected by the USA PATRIOT Act?

3.  People often say, "I don't care if the government is spying on me – I have nothing to hide."  Do you agree?  Why or why not?