It is a bright, sunny morning in Manhattan with the azure sky contrasting with the gray skyscrapers of the city. The date is September 11, 2001. It is supposed to be another ordinary day in America. However, this would not be the case. At 8:46AM, the hijacked Flight 11 crashed into the North Tower of the World Trade Center. A mere seventeen minutes later, at 9:03AM, Flight 175 combusted as it flew into the South Tower. Thirty-four minutes following that, the western façade of the Pentagon was struck by Flight 77. In the chaos that ensued, it became clear that America was under attack. The Islamic terrorist group Al-Qaeda had formulated a complex plan to target the American homeland, training 19 extremists to orchestrate the attack. With the utter physical devastation of the attack tied with the strike inflicted to the American conscience, Congress and the President sought to act quickly. Forty-five days later, on October 26th, George W. Bush signs the USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001) into law after Congress voted to pass the bill. There was initial debate regarding the constitutionality of the act, with the controversy surrounding it growing over time.
The purpose of the PATRIOT Act was to expand the power of the government in order to deter, detect, and punish terrorist activities within the United States and abroad. After being introduced in 2001, it was set to expire in 2005 but was renewed by Congress after intense debate over whether or not it violated the constitutional rights of American citizens. The PATRIOT Act aimed to improve national security through several measures including; enabling law enforcement to use surveillance and wiretapping to monitor terror-related crimes, permitting federal agents to request court permission to use roving wiretaps to track a specific suspect, allowing delayed notification search warrants to prevent a terrorist from learning they are a suspect, letting federal agents seek permission of federal courts to obtain bank records and business records to assist in national security terror investigations and prevent money laundering for the financing of terrorism, improving information and intelligence sharing between government agencies, providing tougher penalties for convicted terrorists and those who harbor them, allowing search warrants to be obtained in any district where terror-related activity occurs (no matter where the warrant is executed), ending the statute of limitations for certain terror-related crimes, making it harder for aliens involved in terrorist activities to enter the United States, and providing aid to victims of terrorism and public safety officers involved in investigating, preventing, or responding to terror attacks.
Key sections of the bill are Sections 203, 206, 215, 218, 213, and 805. Section 203 (AUTHORITY TO SHARE CRIMINAL INVESTIGATIVE INFORMATION) serves to allow and promote communication between government agencies in the investigation of terrorist suspects and activities. This is an important provision of the law as in relation to the attack, the Justice Department has blamed the lack of communication between the FBI and the CIA for the failure to find and detain the hijackers Khalid al-Midhar and Nawaf al-Hazmi prior to the attacks. CIA agents allegedly had information that both men were in the United States and were suspected terrorists, but the FBI did not receive that information until a month prior to the attack. In short, this makes information obtained from grand juries be available to more government agencies and agents.
Section 206 (ROVING SURVEILLANCE AUTHORITY UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978) allows “roving wiretaps” to be used against suspected terrorists. Roving wiretaps refer to a wiretap being placed on a specific individual rather than a specific device or phone. This makes it so new authorizations do not have to be granted for each new device that a suspect may be using, facilitating investigation. Essentially, roving tap activity increased after the passing of the bill under this section.
Section 215 (ACCESS TO RECORDS AND OTHER ITEMS UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT) permits investigators to “make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.” (50 U.S. Code § 1861). This was also used as the basis for the NSA’s infamous phone recording program which was ousted by whistleblower Edward Snowden.
Section 218 (FOREIGN INTELLIGENCE INFORMATION) lowers the requirements to gain permission to wiretap or search the residence of a suspect in counterterror or counterintelligence probes, “where investigators must only prove the suspect is an ‘agent of a foreign power.'”
Section 213 (AUTHORITY FOR DELAYING NOTICE OF THE EXECUTION OF A WARRANT) makes it so that the FBI does not have to immediately notify a suspect that their home or business is the target of an investigation. This was included so that suspected terrorists do not become aware that they are being investigated. Finally, Section 805 (MATERIAL SUPPORT FOR TERRORISM) is an amendment of the Antiterrorism and Effective Death Penalty Act of 1996. AEDPA banned providing support to terrorist organizations, whether it be material support or training. This amendment extended that ban to “expert advice or opinion”. Critics claim that this is too vague and may lead to guilt by association.
Upon being passed by Congress in the weeks following 9/11, ire was garnered by civil liberties advocacy groups regarding the infringement of the civil liberties of citizens and violations of privacy. The ACLU is among the most vocal of these groups. There are several points of the Act which the organization objects to, both procedural and substance-based. They claim “Many Senators complained that they had little chance to read it, much less analyze it, before having to vote. In the House, hearings were held, and a carefully constructed compromise bill emerged from the Judiciary Committee. But then, with no debate or consultation with rank-and-file members, the House leadership threw out the compromise bill and replaced it with legislation that mirrored the Senate version. Neither discussion nor amendments were permitted, and once again members barely had time to read the thick bill before they were forced to cast an up-or-down vote on it.” (Surveillance Under the USA/PATRIOT Act. https://www.aclu.org/other/surveillance-under-usapatriot-act.)
Additionally to the slipshod review of the bill in Congress, the Bush administration pressured Congress into voting for the bill by implying that anyone who voted against it would be the cause for additional attacks. The ACLU contends that the changes and revisions brought to existing surveillance and intelligence laws grants the government unchecked power to look through the financial records, medical histories, Internet and library usage, bookstore purchases, travel patterns, and “any other activity that leaves a record” of an individual. Several additional concerns are that; the government no longer has to provide evidence that the subjects of search warrants are agents of a foreign power. The FBI does not have to show a reasonable belief that the records of the individual are related to criminal activity, ignoring the provision of “probable cause” defined in the Fourth Amendment. As well, there is no little to no judicial oversight of these expanded government powers. A judge must only certify that a search meets the broad criteria of the statute without needing to see evidence or proof. Any entity that is required to hand over information and records in an investigation is prohibited from disclosing the inquiry to anyone. Thus, individuals have no clue that their records may have been accessed and investigated by the government.
More specifically, the ACLU posits that the expansion of records searches (SEC.215) violates both the First and Fourth Amendments. The First Amendment protects the freedoms of speech, religion, the press, the right of assembly and petition. The Fourth Amendment is “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The Fourth (additionally Fifth with its protection of due process) Amendment is violated by the failure to provide notice to an individual that their privacy was compromised, and that a search warrant and probable cause must be obtained prior to a search being conducted. A key principle of the Fourth Amendment that arises from common law is that of “knock and announce” which outlines that law enforcement officers must state their presence to a resident. With the amendments made by the Patriot Act, this principle is directly infringed upon. Government officials may not notify the target of a search until a long period of time after the search was conducted. Furthermore, the First Amendment is violated by the authorization of the FBI to launch investigations of American citizens in part for exercising their freedom of speech, and the prohibition of the recipients of search orders to tell others about those orders. Outside of the provisions based on surveillance, the ACLU alleges that the Act puts the CIA back into the business of spying on Americans. As well it “Creates a new crime of ‘domestic terrorism'” where protestors can be identified as terrorists if they engage in conduct categorized as “dangerous to human life” or influential in changing government policy through intimidation or coercion.
Although there are scathing criticisms made against the PATRIOT Act, there are still many Americans that support the changes in the law brought by it. According to a CNN/ORC poll in 2015, 61% of Americans believed that the law should be renewed by President Obama. (Kurtzleben, Danielle. “Americans Say They Want The Patriot Act Renewed … But Do They, Really?” NPR, NPR, 1 June 2015) The consideration of the weight to be given to privacy and oppositely security is a debate held by most Americans aware of the law. From the New York Times, Nathan A. Sales argues that the Act is a “Vital Weapon in Fighting Terrorism.” Sales points out that the provisions within the bill are modifications of existing legal tools used by domestic law enforcement agencies and that with the Act, they are merely extended to the intelligence community in order to be used in counterterrorism operations. As well, he posits that it is commonplace for grand juries in criminal cases to subpoena “business records” from companies such as banks and large retailers, and the Act additionally allows counterterrorism agents to receive the same information and documents. In short, he argues that the provisions under the Act are simply pre-existing laws that were transferred to be used against terrorism by intelligence agencies.
From this however, it is widely debated whether or not the Act has actually achieved its goal of preventing terrorist attacks. According to The Washington Times, “FBI agents can’t point to any major terrorism cases they’ve cracked thanks to the key snooping powers in the Patriot Act, the Justice Department’s inspector general said in a report Thursday that could complicate efforts to keep key parts of the law operating.” (Ybarra, Maggie. “FBI Admits No Major Cases Cracked with Patriot Act Snooping Powers.” The Washington Times, The Washington Times, 21 May 2015) However in direct contradiction to this the Heritage Foundation alleges that “at least 50 publicly known Islamist-inspired terror plots targeting the United States have been foiled since 9/11.” (Bucci, Steven. “Fifty Terror Plots Foiled Since 9/11: The Homegrown Threat and the Long War on Terrorism.” The Heritage Foundation) At least forty-two of these plots are considered “homegrown” with the plan having been developed within the United States. Forty-seven of the fifty were “thwarted due to the concerted efforts of intelligence and law enforcement.”
Infamous and unconstitutional to many, the PATRIOT Act also provides numerous Americans with a sense of security that was lacking after the tragic and abhorrent terrorist attacks of 9/11. With several provisions set to expire next month, the debate surrounding the legislation seems to have simmered down among the American public but it is still burning among civil rights and privacy advocacy groups.
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