Patriot Act

Patriot Act

Patriot Act, anticrime and antiterrorist legislation enacted soon after the September 11, 2001, terrorist attacks on the World Trade Center in New York City and the Pentagon in Arlington, Virginia. The law was approved overwhelmingly by both chambers of Congress, the Senate and the House of Representatives, and signed into law by President George W. Bush on October 26, 2001.

The law was designed both as a political response to the attacks, which horrified the nation, and as a way of strengthening the powers of police agencies and prosecutors in hopes of preventing future attacks. The law’s name derived from the titles given to separate bills introduced in the House and Senate. The Senate bill was first known as the Uniting and Strengthening America Act of 2001, or the U.S.A. Act, while the House bill was named the Provide Appropriate Tools Required to Intercept and Obstruct Terrorism Act, or Patriot Act. When members of the Senate and House met to produce a compromise bill that was sent to President Bush, the bill became the USA-Patriot Act. After a time, however, people began referring to the law just as the Patriot Act.

The legislation passed in the House of Representatives by a vote of 357 to 66. In the Senate only one senator, Democrat Russell Feingold of Wisconsin, voted against it. The dissenting members of Congress and many more people outside the government said the law gave the government too much power to spy on ordinary Americans. Of particular concern, according to these critics, were provisions that allow searches of private records without having to demonstrate to a judge the likelihood that a crime has been committed.

The quick passage of the Patriot Act was a result of the shock and anger produced by the September 11 attacks. Intelligence agencies quickly established that the hijackings of four airplanes on the day of the attacks were carried out by members of the al-Qaeda terrorist network. All of the 19 Arab hijackers were citizens of Middle Eastern countries and were living in the United States on immigrant visas. Intelligence agencies quickly determined that some of the hijackers had been living in the United States for some time. Al-Qaeda leader Osama bin Laden orchestrated the attacks, which were paid for by a variety of methods that involved funneling money into the United States, often through groups that claimed to be charities aiding Islamic causes. The Patriot Act was, in part, an attempt to address the problem of monitoring suspected foreign terrorists living within the United States and to close off their methods of raising money.

There was little debate in Congress and even less dissent as the lawmakers had only a brief period to digest and consider carefully the 342-page Patriot Act. The Bush administration helped write the legislation, arguing for measures that it felt were needed to prevent future attacks, and Congress was willing to give the administration what it requested.

Because many in Congress were wary of the new provisions and the new powers given to government investigators, many of the Patriot Act’s most controversial provisions were due to “sunset” or expire on December 31, 2005. The sunset clauses were included in the legislation in order to win the support of those lawmakers who worried that the bill was going too far. The sunset provisions meant that Congress was forced to consider how the law had worked before it could continue beyond December 2005.

In March 2006 Congress amended some of the sunset provisions and made 14 of the law’s 16 major provisions permanent. The 89-10 vote in the Senate and the 280-138 vote in the House represented a major political victory for the Bush administration, which campaigned vigorously to make the law permanent and resisted significant changes to its provisions.

II

PROVISIONS OF THE PATRIOT ACT

The provisions of the Patriot Act include sections on electronic communications, foreign intelligence gathering, money laundering, private records, immigration, and material aid to terrorists.

A

Electronic Communications

The Patriot Act expands the government’s ability to eavesdrop on or to monitor electronic communications, such as telephone calls and e-mail. For the first time the government formally obtained the right to monitor e-mail communications. The Patriot Act also made it easier for law enforcement authorities to listen to a suspect who was using multiple phones by authorizing “roving” wiretaps. Once authorities get a warrant (permission from a judge), it can be used for any telephone or cell phone or computer the suspect uses. Previously, officials needed separate authorization for each and every telephone. The provision that allowed for roving wiretaps was one of two sunset provisions that were not made permanent when Congress renewed the Patriot Act in 2006. Instead, this provision was extended for four years.

To obtain a warrant to eavesdrop on electronic communications, some parts of the law, such as section 215, require the government to go before a judge. Only the judge has the power to decide if there is sufficient reason to violate someone’s privacy. However, if law enforcement officials stipulate that the investigation involves terrorism, under section 215 the judge has no discretion to refuse the government’s request, a situation that is sometimes known as having a judge “rubber stamp” the request.

Still other parts of the law, such as section 505, call for no judicial oversight and allow the executive branch of the government to decide what is necessary and legal. For example, as a result of the Patriot Act, law enforcement and intelligence agency officials no longer have to seek authority from a judge to use either a “pen register” or a “trap and trace” device on telephones used by an alleged terrorist suspect.

These devices are forms of caller ID. Pen registers tell officials the numbers dialed from a suspect’s telephone; trap and trace devices monitor and record all the incoming numbers. Neither device enables authorities to listen in on the content of the conversations. They only provide the incoming and outgoing numbers. To listen in on the content of a conversation, the government has to obtain the approval of a judge and make a showing of probable cause—that is, a showing that a crime has likely been committed.

The Patriot Act also makes the same standards used for intercepting telephone calls and conversations applicable to the Internet. Prior to the Patriot Act, it was unclear whether the laws governing eavesdropping and monitoring of telephone communications also covered communications over the Internet, such as e-mail. To eavesdrop on the content of e-mail exchanges, the government has to go before a judge with a showing of probable cause that a crime was being committed. However, to simply monitor the sending and receiving of e-mail, no judicial review or showing of probable cause is required. In such cases the government can monitor only the To: and From: addresses, but not the content of the text messages. Government attorneys have indicated that even the Subject line of an e-mail communication is considered content and may not be used.

B

Foreign Intelligence Gathering Within the United States

The Patriot Act lowers the standards that the government is required to follow to gather intelligence on the activities of foreigners or of foreign governments within the United States. The Fourth Amendment to the U.S. Constitution prohibits unreasonable searches and upholds the right of people to be secure in their homes. This constitutional guarantee made it difficult to listen in on telephone conversations in the United States, even those involving people representing or associated with foreign governments.

Prior to the Patriot Act, the only law that enabled intelligence agencies to listen in on electronic conversations involving foreign government activity in the United States was the 1978 Foreign Intelligence Surveillance Act (FISA). Before FISA existed, the only way to get a wiretap on someone’s telephone was to present a judge with evidence that a crime was probably being committed. That probable cause standard was inadequate for a situation in which government investigators needed information about the activities of a foreign government in the United States, but did not necessarily want to use that information for criminal prosecution.

Under FISA, government investigators could go to a special court composed of a few select judges and obtain authorization to wiretap phones provided they could tell the court that it was for an investigation principally concerned with foreign intelligence matters such as espionage. Under the Patriot Act, the standards for going to the special court were lowered. Foreign intelligence had only to be a “significant” part of the investigation, not the principal part. So if investigators were pursuing a terrorist suspect who had only a connection to foreign intelligence, they could still obtain a warrant to eavesdrop on the suspect. Following passage of the Patriot Act, the number of FISA warrants granted by the court climbed from about 1,000 in 2000, prior to passage, to more than 1,700 in 2003. In 2005 the FISA Court approved 2,072 warrants out of 2,074 requests for warrants.

C

Money Laundering

The Patriot Act reinforces many of the tools used to prevent the easy flow of money for terrorists, especially by requiring that any movement of large sums of money be reported to the Department of the Treasury. The law requires banks and other institutions to maintain anti-money laundering programs. Money laundering is the way criminals or terrorists are able to move money without detection to help them commit their crimes. Government officials fight the ability of criminals or terrorists to launder money by several means, including seizing the money if it is discovered. The Patriot Act strengthened the ability to detect money laundering by requiring banks and other financial institutions to have special employees assigned to monitor the flow of large sums of money.

D

Private Records

The Patriot Act has two sections—section 215 and section 505—that make it easier for the government to obtain a person’s medical, library, financial, student, or mental health records. Law enforcement officials contend that in tracking shadowy figures and their contacts, they benefit from a greater amount of information. Medical records, for example, may be especially useful in identifying individuals who use different identities and aliases. But civil liberties advocates in Congress and elsewhere argue that obtaining such records opens the door to abusing the privacy of law-abiding citizens.

Section 215 attracted much attention among civil liberties advocates because it modifies the rules on record searches if the government says the searches are related in any way to fighting terrorism. Before the Patriot Act, a government investigator had to go to a federal judge and seek a warrant to obtain such records. The investigator had to convince a judge there was probable cause that a crime had been committed. Under the Patriot Act, however, an official can simply go to the FISA Court (the court created by the Foreign Intelligence Surveillance Act) and say that the search involves protecting the country against terrorism. There is no need to present evidence or to make a case for probable cause.

In addition, such searches are conducted secretly—that is, without the subject of the search being made aware that his or her records were obtained by government officials. Before the Patriot Act, any search warrants from a court to combat crime would require notifying the person who is the subject of the search. Even when there was an allegation that terrorism was involved and the FISA Court was used, the government would have had to make a showing that the subject was linked to foreign intelligence. To ensure that the searches were secret, the holders of the records being searched were prohibited from revealing that a search was conducted under the original Patriot Act. Under the revised Patriot Act that passed Congress in March 2006, this provision was altered slightly. Recipients of subpoenas for record searches would have the right to consult with a lawyer to challenge the request in court.

Section 215 was one of two sunset provisions in the Patriot Act that were not made permanent. Instead, it was extended for four years but it was amended so that subpoena recipients could challenge their subpoena in court.

Another section of the Patriot Act, section 505, gives the government an even more powerful tool to obtain records that most people think are private. For example, most people think that their library and medical records are private, but because these records are actually held by third parties, the records do not belong to them and are not considered their private property. Section 505 authorizes the U.S. attorney general, as the head of the Justice Department, to issue “national security letters,” which function like subpoenas, only they do not require a judge’s approval or a showing of probable cause. These letters may be used to force people who hold records about citizens, such as librarians and physicians, to turn the records over to the Justice Department. Unlike section 215, even a rubber-stamp court order is not required to issue one of these national security letters.

Under the original Patriot Act, once a national security letter was issued, the holder of the record was gagged and could not divulge that the record was turned over to the government. The person whose records were seized would never know that the search took place unless the government eventually prosecuted that person. Moreover, the government can obtain private records even of persons who are not themselves suspected of a crime but are simply associated with someone who is under suspicion. And the attorney general can delegate the authority to issue national security letters to other officials, such as the head of a Federal Bureau of Investigation (FBI) field office. Under the revised Patriot Act of 2006, the recipient of a national security letter can challenge the nondisclosure requirement but only one year after receiving the national security letter. Recipients are not required to disclose the names of any attorneys they consulted, but they are required to tell the FBI if they consulted anyone other than legal counsel.

Under the revised Patriot Act, public, academic, and research libraries are exempted from section 505 and may not be subject to national security letters. Libraries may, however, be subject to warrants issued by the FISA Court.

In March 2006, when Congress renewed the Patriot Act, most accounts indicated that the FBI had issued about 30,000 national security letters annually since the law was originally enacted. The FBI used national security letters to obtain information about these citizens and residents from their banks and from companies that provided them with credit card, telephone, and Internet services. National security letters do not require a judge’s approval or a grand jury subpoena.

However, in March 2007 a report by the inspector general of the U.S. Justice Department revealed that the FBI had underreported the number of national security letters it had issued. The report also found that in many instances FBI agents had used such letters improperly and illegally. The inspector general found 48 violations of the law or of presidential directives during a two-year period from 2003 to 2005, based on an audit of only four of the FBI’s 56 field offices. FBI director Robert S. Mueller III conceded that the inspector general’s audit was accurate but said the underreporting and instances of illegal and improper use was a result of errors in judgment rather than criminal intent. He also blamed deficiencies in FBI databases and record-keeping. The inspector general’s 2007 report revised the number of national security letters that had been issued over a three-year period. According to the report, the actual number was 39,000 in 2003, 56,000 in 2004, and 47,000 in 2005. The report found that the FBI had underreported these numbers by 20 percent.

E

Immigration

The Patriot Act contains a number of provisions designed to prevent terrorists from entering the United States and to enable the government to deport suspected terrorists and their supporters. The law increased funding for the Immigration and Naturalization Service (INS) and the Customs Service in states along the U.S. border with Canada. It clarified or expanded the definition of terrorist group or terrorist activity in order to prevent foreigners associated with terrorist groups from entering the United States. For example, section 411 gives the government the right to deny admission to the country to representatives of political or social groups that have publicly endorsed terrorist activities.

Section 412 enables the attorney general to detain foreign terrorist suspects for up to seven days while certifying that there are reasonable grounds to believe that the suspect is a danger. Within seven days, the attorney general must initiate proceedings to deport, prosecute, or release the suspect. If the suspect is held in detention, the attorney general must confirm every six months that the suspect remains a threat.

F

Material Aid to Terrorists

Prior to the Patriot Act, U.S. law made it a criminal act to provide material support to an individual or organization that committed terrorist acts. The Patriot Act expanded on the definition of material support with section 805, which includes “expert advice or assistance” as a form of material support. The provision is controversial because the phrase is vague and therefore could infringe on the right of free speech.

III

THE DEBATE OVER THE PATRIOT ACT

The Patriot Act has become controversial for many reasons. Opponents of the act say that it infringes on the Constitution’s Bill of Rights and has led to unwarranted and abusive detentions of immigrants. Supporters of the law say it has improved the ability of law enforcement to discover and monitor possible terrorist activity.

A

Impact on Civil Rights and Civil Liberties

The principal underlying theme of the debate over the Patriot Act involves whether its provisions are really going to help fight terrorism. Many critics of the Patriot Act believe law enforcement officials are simply using the September 11 attacks as a pretext to obtain the kinds of expanded powers they have sought for years. These critics note that federal prosecutors and agencies such as the FBI had sought many of the Patriot Act’s features for years. Passage of the bill was simply giving them what had long been on their “wish list.” Supporters of the Patriot Act counter that the September 11 attacks highlighted the deficiencies of existing laws, deficiencies that were overcome by passage of the Patriot Act.

The most vocal critics of the Patriot Act came from two camps. One was the civil liberties community, composed of groups such as the American Civil Liberties Union (ACLU), which is devoted to monitoring whether the government is overreaching or infringing on basic civil rights and civil liberties. A bit more surprisingly, some of the opposition to the Patriot Act came from some conservative Republicans, who were also wary of too much government power. Conservatives may sometimes be divided into two groups, those who generally favor the government’s ability to crack down on crime, called authoritarian conservatives, and a smaller branch composed of people who favor limited government, called libertarians.

When President Bush and his White House aides promoted support for the Patriot Act, they found unexpected opposition from some fellow Republicans such as Representative F. James Sensenbrenner of Wisconsin, who was the chairman of the House Judiciary Committee. Sensenbrenner complained that the bill that was to become the Patriot Act contained too many exceptions to the Fourth Amendment’s prohibition on unreasonable searches of ordinary citizens. In particular, critics like Sensenbrenner and the ACLU pointed out that the Patriot Act expanded the government’s ability to investigate citizens by eliminating in many cases the precaution of having a judge review the action beforehand.

The ACLU emphasized that “common law,” which is the set of centuries-old principles underlying Western democracy, recognized that government may not invade a person’s property without telling the person. That is known as the “knock-and-search” principle. But under section 213 the Patriot Act authorized what have been called “sneak-and-peek” warrants in which a judge may allow investigators to enter a house or apartment, search it, take photos, and copy or download computer documents, among other actions, all without telling the occupant beforehand. Such sneak-and-peak warrants had been authorized under FISA but only in cases involving a foreign power or its agents. The government must eventually notify the occupant that a search was conducted, although the government can indefinitely request a delay in notification for good cause.

The ACLU maintains that the Patriot Act threatens the 1st, 4th, 5th, 6th, 8th, and 14th amendments to the Constitution. It claims that the act allows the FBI to investigate American citizens for criminal activity without probable cause and by simply saying that it is for “intelligence purposes.”

Other organizations, such as the American Library Association (ALA) and the Electronic Privacy Information Center, have stated their opposition to provisions of the Patriot Act. And more than 240 communities, including such major cities as Los Angeles and New York, have also passed resolutions opposing portions of the Patriot Act.

B

Impact on Immigrants

The ACLU and other civil liberties groups argue that the Patriot Act contains a number of provisions that violate the civil liberties of immigrants. They argue that under section 412 noncitizens could be jailed merely on suspicion of wrongdoing or for engaging in free speech, detained indefinitely in six-month increments, deported, and denied readmission to the United States. Under section 411, these critics say, an alien resident who unknowingly associated with a terrorist could be deported. Moreover, opponents of the Patriot Act say, the law allows the government to deport foreign residents associated with an organization deemed “terrorist” by the U.S. secretary of state or attorney general. These critics note that the African National Congress, now the governing party in South Africa, was at one time labeled a “terrorist organization” by the U.S. State Department.

C

Effectiveness in Fighting Terrorism

The Patriot Act’s supporters argue that it has helped fight and suppress terrorist acts. Its opponents say it has not. It is difficult if not impossible to determine the truth of either position with any accuracy.

The government claims that many planned acts have been averted because of the information gained through the Patriot Act and also because authorities were able to detain many suspicious people who might have committed terrorist acts. But proving that something would have happened is hard to demonstrate or verify.

D

Court Rulings Regarding the Patriot Act

A number of legal challenges to various provisions of the Patriot Act are making their way through the judicial system, but none of these challenges have yet reached the Supreme Court of the United States. In January 2004 a federal district court judge in Los Angeles issued the first ruling striking down a provision of the Patriot Act. The provision regarded providing “expert advice or assistance” to alleged terrorist organizations. The judge found it unconstitutionally vague because it failed to distinguish between providing advice or assistance for lawful or peaceful activities and providing advice or assistance for illegal or criminal activities such as terrorism.

The case involved the Humanitarian Law Project, which had given advice to the Kurdish Workers Party, an organization that seeks self-determination for Kurds in Turkey, about how to present their grievances to the United Nations (UN). Because the U.S. State Department had labeled the party a terrorist organization, the law project stopped offering its advice for fear of prosecution. The Justice Department indicated that it would appeal the ruling.

In September 2004 a federal district court judge in the southern district of New York found that a provision in a law amended by the Patriot Act violated the Fourth Amendment to the Constitution by allowing searches without judicial review and violated the First Amendment right to free speech by prohibiting anyone from speaking about the searches. The ruling struck down a section of the 1986 Electronic Communications Privacy Act, which gave the FBI the power to issue national security letters (subpoenas) under conditions of strict secrecy. As originally written the law could be used only against persons suspected of espionage and only if the government believed that the suspects were foreign agents. It was amended in 1993 to relax the requirement that the target of the letter be suspected of being a foreign agent. The Patriot Act removed this requirement entirely and further amended the law so that national security letters could be issued to Internet service providers to obtain information about their customers. After the federal court struck down the entire provision, the Justice Department appealed the ruling.

A number of other cases also sought to test the constitutionality of the Patriot Act. For example, the ACLU filed suit in Detroit, Michigan, to challenge the provision allowing the government to search library records. The courts, however, have upheld some sections of the Patriot Act, such as the right of the government to freeze the assets of an organization or entity that has been labeled a terrorist organization and to use secret evidence in defending that decision. Muslim charities that have had their assets frozen have challenged these provisions of the Patriot Act, but the courts have rejected those challenges.

E

Renewing the Patriot Act

As the sunset provisions of the original Patriot Act were set to expire in December 2005, Congress wrangled with various proposed amendments raised by critics of the law. The same month the New York Times disclosed that the Bush administration had authorized a secret program by the National Security Agency (NSA) to monitor the overseas electronic communications of U.S. citizens and foreign nationals residing in the United States without seeking the approval of the FISA Court. In effect, the judicial review provisions built into the Patriot Act and the Foreign Intelligence Surveillance Act were nullified by the secret program. See also Surveillance, Electronic.

The disclosure added to the firestorm of controversy over renewing many of the sunset provisions. Unable to agree on how to amend the law, Congress granted two short-term extensions while it continued to debate. In March 2006 a revised law that made permanent 14 of the 16 sunset provisions passed both houses and was signed by President Bush. Senator Russell Feingold, who was the sole opponent of the law when the Senate first approved it in 2001, was able to persuade only eight other Democrats and one independent to join him in voting against the amended law. In the House, the vote was somewhat closer with 138 voting against, as compared with 66 in 2001.

The revised law added some measures intended to reassure those concerned about the loss of civil liberties. It gave recipients of FISA Court warrants in terrorist investigations the right to consult with a lawyer to challenge the warrant request in court. It also gave recipients of national security letters the right to challenge the nondisclosure requirement, but only one year after receiving the national security letter. In the meantime recipients are still compelled to obey the subpoena. The revised Patriot Act clarified that public, academic, and research libraries are not subject to national security letters, although they may still be subject to warrants issued by the FISA Court. Critics called these changes “cosmetic.” Defenders of the law argued that not a single case of abuse had been documented since the Patriot Act was enacted. Critics responded that with a veil of secrecy around many of its provisions, it was impossible to know if abuses were occurring.