Contents
I. Introduction
In the aftermath of the September 11, 2001 terrorist attacks US Congress passed legislation known as the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 commonly known as the USA Patriot Act. This paper will attempt to prove that not only is the USA Patriot Act unconstitutional but many of its provisions do nothing at all to protect Americans from the dangers of terrorism.
While this act made legislative changes that increased surveillance and the investigative powers of law enforcement agencies to protect America from further terrorist acts, the passing of the USA Patriot Act has reduced the privacy rights of Americans and also does not provide for a system of checks and balances that safeguard civil liberties. Terrorism is a serious matter that should not be handled lightly, but the act has gone over the top in trying to stop terrorism. The USA Patriot Act, enacted for protecting America from further attacks, not only does little if anything to protect Americans, but rather undermines their civil rights. The Patriot Act targets not only terrorists, but also the American people which it intended to protect.
This paper will primarily speak of the violations of the First and Fourth Amendments and the lack of checks and balances in relation to the USA Patriot Act.
II. Background
After the September 11th terrorist attacks, America was understandably frightened that this could happen again. Less than a week after the attacks the Bush administration introduced legislation that included items which had previously been voted down, sometimes repeatedly, by Congress. (Surveillance Under the USA Patriot Act)
The Senate version of the Patriot Act, which closely resembled the legislation requested by Attorney General John Ashcroft, was sent straight to the floor with no discussion, debate, or hearings. 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. The Bush
Administration implied that members who voted against it would be blamed for any further attacks – a serious threat at a time when the nation was expecting a second attack would come at any moment and when reports of anthrax letters were appearing daily. (Surveillance Under the USA Patriot Act)
The bill was officially signed into law as the USA Patriot Act on October 26, 2001 by President Bush. Congress acted without determining whether the weaknesses in our surveillance had contributed to the attacks or whether the changes they were making would help prevent further attacks. The two amendments that were effected the most by the USA Patriot Act were the First and Fourth Amendments.
The First Amendment reads Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances . (United States House of Representatives-Amendments to the Constitution) Section 802 of the USA Patriot Act titled Definition of Domestic Terrorism states that acts committed within the United States “dangerous to human life that are a violation of the criminal laws” can be considered acts of domestic terrorism if they “appear to be intended” to “influence the policy of a government by intimidation or coercion” or “to intimidate or coerce a civilian population.” (H.R. 3162) With a definition as broad as “appear to be intended,” there is a great deal of opportunity for abuse. This greatly restricts Americans First Amendment rights to freedom of speech and protest. The PATRIOT Act’s Section 216 threatens free speech by authorizing the use of the Carnivore system, an electronic tracking system that is capable of capturing all forms of internet activity. Because Carnivore provides the FBI with access to the communications of all subscribers of a monitored Internet Service Provider and not just those of the court-designated target, it raises privacy issues for millions of law-abiding American citizens. The PATRIOT Act’s Section 411 infringes on our First Amendment rights as well. It broadens the definition of activities that can be considered punishable for citizens and “deportable offenses” for non-citizens. For example, it deems soliciting funds for an organization that the government labels as a “terrorist group” as “engaging in a terrorist activity.” The government often defines such organizations without due process, using alleged “secret evidence.” (H.R. 3162)
The Fourth Amendment reads 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. (United States House of Representatives-Amendments to the Constitution)The Patriot Act assumes that lack of information caused by laws that restricted government information-gathering was the major reason for the September 11th terrorist attacks. Section 215 of The USA Patriot Act, titled Access to Certain Business Records for Foreign Intelligence and International Terrorism Investigations (H.R. 3162) is in direct violation of this amendment by giving law enforcement the ability to obtain without subpoena, search warrant or probable cause, a court order giving them access to any records or tangible thing which includes personal records from libraries, booksellers, doctors, financial and educational institutions.
The government only needs to claim that the records may be related to an ongoing investigation related to terrorism or intelligence activities. Section 213 includes Sneak and Peek warrants that allow law enforcement agencies to break into a suspected terrorists’ home while they are not there, go through their things, take pictures, and seize property, all with no warning or notification after the fact. Section 411 allows the Secretary of State to label any person or group (foreign or domestic) which has engaged in any type of “violent activity” to be a “terrorist organization.” (H.R. 3162) Section 412 expands on section 411 by giving the Attorney General the authority to certify immigrants as a risk and requires no proof of probable cause. Section 206 expands FISA to permit “roving wiretap” authority, which allows the interception of any communications made to or by an intelligence target without specifying the particular telephone line, computer or other facility to be monitored. Such orders could have a significant impact on the privacy rights of large numbers of innocent users, particularly those who access the Internet through public facilities such as libraries, university computer labs and internet cafes. (H.R. 3162) Upon the suspicion that an intelligence target might use such a facility, the FBI can now monitor all communications transmitted at the facility. The problem is made worse by the fact that the recipient of the assistance order would be prohibited from disclosing the fact that monitoring is occurring on those patrons.
The USA Patriot Act gives sweeping new powers to both domestic law enforcement and international intelligence agencies and eliminated the checks and balances that previously gave courts the opportunity to ensure that such powers were not abused. Most of these checks and balances were put into place after previous misuse of surveillance powers by these agencies were uncovered including the revelation in 1974 that the FBI and foreign intelligence agencies had spied on over 10,000 U.S. citizens, including Martin Luther King. (EFF Analysis Of The Provisions Of The USA PATRIOT Act)
III. Alternatives
The USA Patriot Act contains a sunset provision, terminating several of the amendments enhancing electronic surveillance authority on December 31, 2005. Thereafter, the authority remains in effect, only as it relates to foreign intelligence investigations begun before sunset or to offenses or potential offense begun or occurring before that date. There may be some disagreement of whether a potential offense is a suspected crime, an incomplete crime or both. (Doyle) This would be a good time to propose alternatives to the USA Patriot Act. There are three options, as I see it, when trying to decide if new legislation is needed or not.
The first alternative would be to have a watered down version of the Act, where some of the provisions are not as strict; such as libraries and internet service providers would have to inform their users before giving over all information so as to potentially give the borrower/consumer an opportunity to consider whether they want anyone to know what they are looking at. Government agencies would have to provide probable cause in order to obtain a search warrant. Perhaps the FBI would not be able to observe the internet activity of everyone, but just the actual suspected terrorists by getting a search warrant backed by probable cause. The advantages of this policy would be more government accountability and less government intrusion in our private lives and the disadvantages would be civil rights would not be completely restored and still some intrusion in our private lives would remain.
The second alternative would be to enhance and add on to the existing act with even more information gathering tools, investigative options and citizen restrictions. This may include the government being able to pull a citizens credit report and not letting them know about it, a DNA database where everyone is required to submit a DNA sample for tracking purposes, or a national security identification card that everyone will be required to carry. The advantage of this alternative would be increased protection from terrorism and the disadvantage would be severely diminished civil rights.
The third alternative would be to get rid of the Patriot Act altogether and go back to the way it was before the terrorist attacks. America seemed to function nicely and safely before the attacks and perhaps the September 11th terrorist attacks were a one time act by a severely deranged group of people. The advantage would be the American people would have increased privacy but more exposure to possible terrorist attacks which would definitely be a disadvantage.
IV. Recommendation
There has to be a better balance between protecting the American public against terrorism and denying those very same people their basic civil rights. In order to do this we need to step back and reevaluate the USA Patriot Act as it now stands, keeping some of the laws and changing others so as they will not infringe upon the rights of the American people. Therefore, I recommend going with the first alternative which is what I believe would be the most beneficial. This alternative would provide a workable balance in which the American people would have to give up some civil rights but in exchange I feel the increased protection against terrorist attacks is a fair trade-off.
I also believe that there should be a review panel to assess how well the USA Patriot Act has served the American people. Specifically, Congress should review how well law enforcement and government agencies have performed under the USA Patriot Act before recommending changes to the existing act. They should have ample time to do this and not feel rushed as they did with the signing of this Act. Congress should review some of the terminology in the Act such as the definition of Domestic terrorism to ensure we are not inadvertently including innocent individuals under the name of national security.
There should be a system of checks and balances where congress must review the methods the FBI, CIA and other law enforcement agencies are using in relation to wire taps, search warrants etc. Congress must ensure that the intelligence gathered is used in connection with terrorists and not just criminals in general.
States and the private sector should get more involved in security at the airports, banking procedures and surveillance so that the federal government does not have complete control and overstep their boundaries.
In conclusion, the idea behind the 2001 USA Patriot Act was a solid one made in a time of extreme duress and fearfulness. Now that we have had time to readjust and really look at the consequences of this act, it is time to reevaluate and pass into law a modified version to keep in line with what our forefathers believed for our country.
