Difference between revisions of "Patriot Act"

Revision as of 18:50, September 1, 2007

President George Bush signing Patriot Act before Bi-Partisan gathering of Members of Congress

The Patriot Act -- The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (more commonly known as the USA PATRIOT Act of 2001 or simply the Patriot Act) -- is an antiterrorism bill written in response to the September 11, 2001 attacks. It was signed into law by President George W. Bush on October 26th, only 45 days after the terrorist attacks. The primary purpose of the bill was to provide law enforcement with the tools it needs to fight the domestic war on terror. The bill expanded the definitions of other crime-fighting bills to include terrorists, it provided funds to the Justice Department for fighting terrorism, and, made broad changes to surveillance and intelligence procedures.

Passage of the Act

The Patriot Act was easily one of the fastest bills ever passed through Congress. Then Attorney General John Ashcroft proposed the increases in law enforcement powers on September 19th, requesting that they be passed within a week. ^[1] Ashcrof and the Bush administration, along with many members of Congress felt these provisions were necessary to find and apprehend the perpetrators of the 9/11 attacks as well as prevent any more imminent or future attacks. Many of the proposed powers had been sought by the Justice Department for years (the Clinton administration, for example, sought but was denied so-called roving wiretaps – a power that was included in Ashcroft’s bill), but the new and real threat of terrorism on American soil gave the Justice Department a more agreeable atmosphere in which to propose the measures again. ^[1]

The House Judiciary Committee debated the proposal for weeks and reached an agreement on October 2nd. It made mostly minor changes, with one exception: the committee added sunset clauses to most of the surveillance and investigative powers, against the wishes of the administration.^[1] These clauses would cause certain provisions of the bill to expire in 2003 unless Congress agreed to extend the date. The committee said that it understood the need for expediency, so it would add the sunset clauses to allow debate on the issue when time was not as much of an issue. The administration, however, was worried that the United States would still be fighting the war on terror when the clause came into effect.^[2]

The Democratically controlled Senate version of the bill went more in favor of the White House. While the bill was never considered by the Senate Judiciary Committee, the committee’s chair Patrick J. Leahy, a Democrat from Vermont, along with members from both parties met with the Bush administration to negotiate a bill that the Senate and White House could agree on. This version (finalized on October 4th) did not include a sunset provision, and it allowed lower barriers to allowing search warrants. Additionally it gave the federal government new tools to fight money laundering. ^[1]

The Senate passed its version of the bill with a 96-1 vote (only Senator Russ D. Feingold, a Democrat from Wisconsin voted nay) after just three hours of debate on October 11th. The House revised its version of the bill to make it a little more to the Administration’s liking than that from the House Judiciary Committee, including moving the date of the sunset back three years, to 2006. This version passed a day after the Senate’s version 337-79 vote. The House and Senate negotiated an agreement between the two versions (including changing the sunset date to December 31st, 2005) and sent the bill, now officially known as the USA PATRIOT Act of 2001, back to their respective chambers, where it passed 357-66 in the House on October 24th and 98-1 in the Senate (with Senator Feingold again voting against) a day later. It was signed into law by President Bush on the following day, only 37 days after the original proposal to Congress.^[1]

How the Act Fights Terrorism

The Patriot Act Fights Terrorism in three main ways: disrupting terrorist’s funding, improving methods of prosecuting terrorists, and expanding surveillance procedures and intelligence sharing. There were other minor parts, such as setting up a fund in the Treasury Department to reimburse the Department of Justice for fighting terrorism and a section which condemns discrimination against Muslims and Arab Americans.^[3] Most of the provisions deal directly with terrorism, but some have broader applicability, and some are not related to terrorism at all.

Roving Wiretaps

The first step in disrupting terrorism is finding the terrorists before they can successfully act on a plot to attack the United States. The Patriot Act provides the means for the federal government to gather intelligence on these plots, primarily through wiretaps and search warrants. One such provision is the so-called roving wiretaps provision. Roving wiretaps themselves are not new, they have been use investigating crime since 1986; the Patriot act simply extends this tool to gathering intelligence of terrorists.^[4] Before roving wiretaps, the FBI would need to get a separate FISC (Foreign Intelligence Surveillance Court) warrant for each method of communication used by a terrorist. This means that if the suspect switched phones or used public computers the FBI would need to get multiple warrants. The Patriot Act allows for FISC warrants on a specific person, rather than a single specific phone line as under the old law. This means that the FBI could get one warrant, and tap whatever line the suspect happens to be using at the time.^[4]

Sneak and Peek Warrants

Another tool provided by the Patriot Act is delayed-notification search warrants, or sneak and peek warrants.^[5]DeRosa, Mary. “Section 213: ‘Sneak and Peek’ Search Warrants: A Summary” (American Bar Association, 2005). http://www.abanet.org/natsecurity/patriotdebates/section-213 (Accessed April 16th, 2007)</ref>These are warrants which allow for the execution of a search and seizure of a property in a federal crime without notification of the subject. The government must show the court “reasonable cause” to believe that notifying the suspect would lead to an “adverse result” such as destruction of evidence, intimidation of a witness, or jeopardizing the investigation. "Reasonable cause" is not defined in the act. Sneak and peek warrants, like roving wiretaps, have been used in the past under other circumstances, but they had never before been allowed to retrieve physical evidence, only information or photographs of a scene.^[5]

Libraries Provision

A third tool provided by the Patriot Act is the so-called “libraries provision,” sometimes just called Section 215. Section 215 broadens the FBI’s power to seize records of terrorist activities, specifically business records. Before the Act, the FBI could only subpoena “hotels, motels, car and truck rental agencies, and storage rental facilities,” but these powers were expanded through the act to include records from any place of business.^[6] Section 215 also expands the items the FBI can obtain to include “any tangible things (including books, records, papers, documents, and other items).”^[6] The Act also loosens the requirements to procure a warrant. Whereas before the FBI had to show evidence that the subject under surveillance was a foreign power or agent thereof, after the act, the FBI simply has to assert that the seizure is for a foreign intelligence investigation, clandestine intelligence activities or to protect against international terrorism. There is no requirement for an evidentiary hearing. Section 215 is called the libraries provision because it could potentially be used to subpoena a list of books checked out from a library, or a list of websites visited at a library computer, all without notifying the suspect.^[6]

Intelligence Sharing

The Patriot Act also has several provisions which allow for information and intelligence to be better shared among the investigative and intelligence agencies. The Act allowed information about terrorist activities to be shared between federal, state and local governments, as it was previously allowed for other types of crimes. It also allowed for adding DNA samples of terrorists and other violent offenders to the national database which already includes DNA samples of other certain crimes.^[3]

Money Laundering

Another way the Patriot Act fights terrorism is by cutting off sources of illegal funding, which it does by attempting to curtail money laundering. The act requires all monetary institutions (the definition of which is very broad; it includes pawn brokers, insurance agencies, and diamond dealers) to enact a four part program.^[7] The institution must appoint a compliance officer, establish a training program to recognize money laundering, establish a testing or auditing program to evaluate the accuracy of laundering detection and establish policies to avoid being used to launder money.^[7]

Definition of Terrorism

Finally, the Patriot Act expands upon the definition of terrorism to include acts which were previously not part of federal law. It makes illegal terrorist acts against mass transportation systems as well as harboring terrorists or persons one knows or should know to be terrorists. The Act also expands the definition of conspiracy to allow for conspiracies in other types of crime, such as arson, and creates a definition of domestic terrorist (someone who commits an offence which is “(1) dangerous to human life and violate[s] the criminal laws of the United States or any state; and (2) appear[s] to be intended (or have the effect) – to intimidate a civilian population; influence government policy by intimidation or coercion; or affect government conduct by mass destruction, assassination, or kidnapping (or a threat of)”). ^[3]

Controversy

Much of the Patriot Act is controversial. The largest criticisms come from civil libertarians and others who believe that the Act gives too much power to the executive branch and infringes on civil liberties. Some claim that these problems arose from the rushed nature of the passage of the bill. “The richest and most powerful government in world history was portrayed as a weakling vis-à-vis Al Qaeda terrorists. Until that legislative package was enacted, America was supposedly at a grave disadvantage.”^[8] They also claim that Ashcroft and the Bush administration pressured congressmen to vote for the package as a whole, instead of piece by piece, which lead to even more measures which would not have been passed had appropriate procedures taken place.^[8] Votes were scheduled to pass the bill before members of congress could get a copy, and in the days right after the terrorist attacks nobody wanted to be seen as unpatriotic by voting against the USA PATRIOT Act.

One point of contention with opponents of the Patriot Act is with the roving wiretaps provision. Some claim that the since the FBI does not have to determine the location of their suspect before they start collecting intelligence, the privacy of innocent citizens could accidentally be intruded upon.^[9] They also claim that, due to changes within FISA outside of the realm of the Patriot Act, it is not necessary to know the identity of the person upon whom the warrant is being issued. This could lead to “John Doe” warrants, in which the government does not specify a suspect or a place of interception.^[9]

Another problem opponents have with the Patriot act is with the sneak and peek search warrants. They claim that the standards are too low, and the definitions are too vague, such that warrants could be executed non-terror related crimes or even non-violent crimes like health care fraud.^[10] These opponents argue that the weak definition of a “reasonable” time to notify the suspect that he had been searched could lead to situations where the suspect is denied his constitutional rights.^[11] If, for example, the FBI got a search warrant to search a suspect’s garbage but found evidence by searching the subject’s desk, by the time the suspect was notified it is likely he will have no legal recourse.

A lot of criticisms have been aimed towards the libraries provision of the Patriot Act. As with other criticisms, those for the libraries provision rest largely in the broad and vague language in the bill. These types of searches had existed before in criminal law, but not with such loose and broad terms. The new law could be used to gain access to records usually subject to privacy protections, such as medical records.^[12] Opponents also dislike the gag rule, which makes it illegal for the business which has been subpoenaed to even reveal that they have received a FISA request. Gag rules have been in place for such things as ongoing wiretaps, where informing the suspect would result in negating the usefulness of the tap, but never before have they been used to keep a subject in the dark about completed searches (even sneak and peek suspects eventually discover that they were searched).^[12]

Eight states (Alaska, California, Colorado, Hawaii, Idaho, Maine, Montana and Vermont) and 396 cities and counties (including New York City; Los Angeles; Dallas; Chicago; Philadelphia; and Cambridge, Massachusetts) have passed resolutions condemning the Act for attacking civil liberties.^{[Citation Needed]} Despite these claims, however, the FBI reports that there have not been any verified abuses of any of the provisions of the Patriot Act^[13] nor any terrorist incidents causing loss of life on American soil since its passage.

Expiration

Sixteen sections of the original bill were set to expire on December 31st, 2001, unless Congress decided to extend them or make them permanent. These sections were all from Title II of the act, the title which contained surveillance procedures, including the controversial ones mentioned above. After months of wrangling, negotiation, and debate (and two deadline extensions) Congress finally on March 2nd, 2006 passed a bill which renewed the Patriot Act but implemented safeguards for civil liberties.^[14] Most of the measures were permanent, but the roving wiretap provision was extended only until 2009. Section 215, the libraries provision, was also extended to 2009, but now recipients of the FISA warrant may petition the government after one year to remove the gag order.

Success

The Department of Justice, now headed by Attorney General Alberto R. Gonzales, claims that the Patriot Act has been a useful tool in finding and dismantling terrorist organizations and plots. It claims to have disrupted over 150 terrorist threats and cells, incapacitated over 3,000 terrorists, broken up five terror cells within U.S. borders, charged 401 individuals on terror charges and convicted 212,^[15] though the department does not differentiate between those captured through the new provisions of the Patriot Act, and those who were discovered by other means.

External Links

• Text of Patriot act
• LIbrary of Congress info on Patriot Act
• view of American Library Association
• view of the Jurist
• Department of Justice Official Website
• FBI Official Website

References