On September 11, 2001, al Qaeda terrorists, wielding box cutters, skyjacked and then crashed jets into the World Trade Center and Pentagon. Exactly 45 days later, on October 26, 2001, President George W. Bush signed Public Law 107–56. The act’s formal title is “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act”; however, it is better known as the USA Patriot Act, or simply “Patriot Act” (PA). Fifteen federal statutes were affected by the PA, some in major ways; that is, law-enforcement and intelligence personnel were provided with legal tools for fighting international and domestic terrorism. Once the PA was passed, the Bush administration and many others heralded it as a much-needed tool for combating terrorism and preventing future attacks on the United States. With the passing of time, however, critics of the PA have voiced concerns that the act violates basic constitutional guarantees of civil rights.
III. Legal Decisions
One major boon for authorities was how the PA streamlined the legal processes for obtaining authorization for surveillance on suspicious individuals as well as seizing money that may be used to support terrorism. The act also required financial institutions to report any suspicious activity, to effectively identify new customers, to sever all ties to fraudulent banks located in foreign countries, and to maintain anti–money laundering programs at all times. In addition, banks were encouraged to share information with federal, state, and local law enforcement agencies, while the federal government was empowered to confiscate the property of any individual or organization either performing terrorist acts or who had plans to do so. The PA expanded the definitions of money laundering and fraudulent activities—such as those, involving American credit cards that fall under the definition of supporting terrorism (see also Smith and Messina 2004).
The PA also changed the various requirements needed for the issuance of search warrants. Prior to September 11, 2001 (9/11), local judges, or the Foreign Intelligence Surveillance Court (used only when foreign spying was suspected), issued warrants authorizing electronic surveillance, such as wiretaps. Before the PA was passed, foreign intelligence gathering had to be the sole reason (Smith and Messina 2004). After 9/11, any federal judge could issue a nationwide warrant to tap phones and e-mail or any instrument a suspect could conceivably use. Examples include (1) “sneak and peek” search warrants; (2) permitted delays in serving some warrants until seven days after the surveillance authorized by the warrants; and (3) the requirement that libraries, bookstores, and Internet service providers are required to supply information about how their clients use their various services. Regarding foreign suspects, federal agents could (until 2007, when the policy was revised) request authorization for “warrantless” searches when the gathering of foreign intelligence was thought significant reason for the searches.
The PA was a compromise of the Anti-Terrorism Act of 2001 (ATA), a legislative package intended to strengthen the nation’s defense against terrorism. The ATA contained provisions vastly expanding the authority of law enforcement and intelligence agencies to monitor private communications and access personal information. The final legislation included a few beneficial additions from the administration’s initial proposal. Examples are a sunset provision, which provided that several sections of the PA would automatically expire after a specified period of time unless Congress renewed them, concerns about aspects of the electronic surveillance provisions, and an amendment providing judicial oversight of law enforcement’s use of the FBI’s Carnivore system (a method of electronic surveillance). On the other hand, the PA still retained provisions expanding the government’s investigative authority, especially with respect to the Internet. Those provisions address issues that are complex and implicate fundamental constitutional protections of individual liberty, including the appropriate procedures for interception of information transmitted over the Internet and other rapidly evolving technologies.
One primary purpose for the PA was stopping terrorists from staying within the United States. When reasonable grounds exist to believe that foreign visitors pose a threat to national security, they can be arrested and held for seven days without being charged, pending investigation or their deportation. Judicial review is nonexistent, except for habeas corpus, while the U.S. attorney general has the right to order aliens held indefinitely if no countries agree to accept them upon deportation (Brasch 2005).
The PA makes one liable for deportation, even if a person associates unknowingly with terrorists or terrorist organizations. In order to identify and track suspects, the act substantially increases rewards for information regarding terrorism, expands the exemptions to the Posse Comitatus Act of 1878, and gives the U.S. attorney general permission to collect samples of DNA from convicted federal prisoners. Domestic terrorism, a new category, is added; that is, an act intended to negatively influence governmental policy or to coerce civilians by intimidation committed by any citizen of the United States. Such acts, whether by citizens or foreigners, include attacking mass transportation, releasing biological agents, using weapons or explosives, spreading false information about terrorist attacks, or conspiring with terrorists (Etzioni 2004).
Congressman James F. Sensenbrenner introduced the Patriot Act into the House of Representatives as H.R. 3162. The act swept through Congress quickly with little dissent. House Resolution 3162 was introduced in the House of Representatives on October 23, 2001. Assistant Attorney General Viet D. Dinh and Michael Chertoff (future secretary of the Department of Homeland Security) were the primary drafters of the PA. The bill passed in the House of Representatives on October 24, 2001, as it did in the Senate (with one dissenter and one senator not voting) on October 25, 2001. President George W. Bush signed the bill into law on October 26, 2001 (Smith and Messina).
Quite possibly the single most controversial aspect of the act was Section 215, which dealt with a very narrow implied right of federal investigators to access library and bookstore records. The section allowed FBI agents to obtain a warrant in camera from the United States Foreign Intelligence Surveillance Court for library or bookstore records of anyone connected to an investigation of international terrorism or spying. The section never specifically mentions and civil libertarians argued that the provision violated patrons’ human rights; it has become known as the “library provision.”
It is unknown how many individuals or organizations have been charged or convicted under the act. Throughout 2002 and 2003, the Justice Department adamantly refused to release numbers. John Ashcroft in his 2004 statement The Department of Justice: Working to Keep America Safer claimed that 368 individuals were criminally charged in terrorism investigations, although the numbers 372 and 375 were later used. Of these, he stated that 194 (later 195) resulted in convictions or guilty pleas. In June 2005, President Bush reported that investigations yielded over 400 charges against terrorists, with more than half resulting in convictions or guilty pleas. In some cases, federal prosecutors chose to charge suspects with non-terror-related crimes for immigration, fraud, and conspiracy (Smith and Messina 2004).
Members of the U.S. Congress from both sides of the aisle have tried to curb some of the act’s policies. In 2003, Senators Lisa Murkowski (R-AK) and Ron Wyden (D-OR), introduced the Protecting the Rights of Individuals Act, which revised several provisions of the Patriot Act to increase judicial review. For example, instead of PEN/Trap warrants—a device used to collect all numbers dialed on a phone keypad after a call has been connected—based on the claims of law enforcement, rather, they would be based on “specific and articulable facts that reasonably indicate that a crime has been, is being, or will be committed, and that information likely to be obtained by such installation and use is relevant to the investigation of that crime” (see also Cole and Dempsey 2002).
Congressman Bernie Sanders (I-VT) with Reps. Jerrold Nadler (D-NY), John Conyers Jr. (D-Mich.), C. L. Otter (R-Idaho), and Ron Paul (R-Texas) proposed an amendment to the Commerce, Justice, State Appropriations Bill of 2005 that would cut off funding to the Department of Justice for searches conducted under Section 215. The amendment initially failed to pass the House with a tie vote, 210–210. Although the original vote came down in favor of the amendment, the vote was held open and several house members were persuaded to change their votes (Cole and Dempsey 2002).
The courts have also spoken out against the act. U.S. District Judge Audrey Collins ruled that Section 805 (which classifies “expert advice or assistance” as material support to terrorism) was vague and in violation of the First and Fifth Amendments, marking the first legal decision to set a part of the act aside. The lawsuit against the act was brought by the Humanitarian Law Project, representing five organizations and two U.S. citizens who wanted to provide expert advice to Kurdish refugees in Turkey. Groups providing aid to these organizations had suspended their activities for fear of violating the act, and they filed a lawsuit against the Departments of Justice and State to challenge the law, claiming the phrase “expert advice or assistance” was too vague. Collins granted the plaintiff ’s motion that “expert advice or assistance” is impermissibly vague but denied a nationwide injunction against the provision. The plaintiff s were granted “enjoinment” from enforcement of the provision (Chesney 2005).
In terms of the act remaining as it was in 2001, when it was signed into law, the future looks dim. To date, eight states (Alaska, California, Colorado, Hawaii, Idaho, Maine, Montana, and Vermont) and hundreds of cities and counties (including New York City; Los Angeles; Dallas; Chicago; Eugene, Oregon; Philadelphia; and Cambridge, Massachusetts) have passed resolutions against the PA in its present form. In Arcata, California, an ordinance was passed that bars city employees (including police and librarians) from assisting or cooperating with any federal investigations under the act that would violate civil liberties. In addition, a group called The Bill of Rights Defense Committee helped coordinate local efforts to pass resolutions. The validity of these ordinances is in question, however, since under the Constitution’s supremacy clause, federal law supersedes state and local laws. However, others have opined that the federal employees, in using such procedures for investigations, violate the Constitution’s clauses in the fourth amendment, and in these cases, the Constitution overrides the act’s provisions (Chesney 2005; Bill of Rights Defense Committee).
Cary Stacy Smith and Li-Ching Hung
- Abele, Robert P., A User’s Guide to the USA Patriot Act and Beyond. Lanham, MD: University Press of America, 2005.
- Bill of Rights Defense Committee, “Resolutions Passed and Efforts Underway by State.” http://www.bordc.org/list.php?sortAlpha=1
- Brasch, Walter M., America’s Unpatriotic Acts: The Federal Government’s Violation of Constitutional and Civil Rights. New York: Peter Lang, 2005.
- Chang, Nancy, Silencing Political Dissent. New York: Seven Stories Press, 2002.
- Chesney, R. M., “The Sleeper Scenario: Terrorism Support Laws and the Demands of Prevention.” Harvard Journal on Legislation 42, no. 1 (2005): 1–91.
- Cole, D., and J. X. Dempsey, Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security, 2d ed. New York: Norton, 2002.
- Etzioni, Amitai, How Patriotic Is the Patriot Act? New York: Routledge, 2004.
- Foerstel, Herbert N., The Patriot Act: A Documentary and Reference Guide. Westport, CT: Greenwood Press, 2008.
- Goldberg, Danny, et al., It’s a Free Country: Personal Freedom in America after September 11. New York: Nation Books, 2003.
- Pious, Richard M., The War on Terror and the Rule of Law. Los Angeles: Roxbury, 2006.
- Schulhofer, Stephen J., Rethinking the Patriot Act: Keeping America Safe and Free. New York: Century Foundation, 2005.
- Smith, Norris, and Lynn M. Messina, Homeland Security. New York: H. W. Wilson, 2004.