POLI150 - American Government
Mr. Jonathon Pyles
October 13, 2004
The Patriot Act and Its Effects on American's Constitutional Rights
The conclusion of Patrick Henry's speech on March 23, 1775 is one that is well known among Americans. Boldly, Henry declared, "I know what course others may take; but as for me, give me liberty or give me death!" It was this statement that rang throughout a colonial land seeking to achieve independence from the tyranny of King George III; thus, a nation was born on the principle that the pursuit of liberties and rights were at times more important than individual lives. Typically, the commencing statement in Henry's speech is often overlooked:
No man thinks more highly than I do
of the patriotism, as well as abilities, of the very worthy gentlemen who have
just addressed the House. But different men often see the same subject in
different lights; and therefore, I hope it will not be thought disrespectful to
those gentlemen if, entertaining as I do opinions of a character very opposite
to theirs, I shall speak forth my sentiments freely and without reserve.
It seems two hundred years later, following countless major wars, and a large-scale terrorist attack on U.S. soil, the American nation is are not much further along in its the struggle between patriotism and liberty. The "Uniting and Strengthening America By Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001," which is commonly referred to as the "USA Patriot Act," has set off many red flags among civil liberty unions and Americans alike. Everything from the method in which the bill was passed, to the sections within the bill are being called into question as some feel that Americans are yielding their rights in order to ensure security.
The major question in the minds of Americans following the events of September 11, 2001 is "how did this happen to us?" It seemed to shock the American government and its people that such a large scale attack could be carried out with civilian tools (American and United Airlines Planes) and escape U.S. intelligence knowledge. In the reactionary days that followed the attack, a majority of the President's agenda can be summarized as two-fold: 1) hunt down and bring to justice those responsible for the planning and execution of the attacks, and 2) implement changes within the American government system of intelligence so that an event like 9/11 will never happen again. Both of these agendas were the motivation behind the creation and execution of The Patriot Act.
Patriot Act is composed of 342 pages of legislation that is not as much
original legislation, as it is a modification of existing legislation,
primarily the Foreign Intelligence Surveillance Act (FISA) of 1978. The Act
passed in both houses of Congress with prompt speed, as it was a matter of
weeks from its creation to its signing. But what was understood then as an
appropriate response with the intention of providing law enforcement agencies
with the power needed to protect this country is currently being called into
question. The Act itself bypassed most of the usual committee processes, and
most of the decisions made regarding the act were made in closed-door
negotiations between the Executive and Legislative Branches. The House
Judiciary Committee did review the opportunity to preview and modify the bill,
which then passed, 36-0, on October 3, 2001, within the committee. However, by
the time it hit the House floor on October 12, the bill had largely been
changed due to private agreements between the Speaker of the House Dennis
Hastert (R-Illinois) and the White House. These agreements were not discussed
nor even made aware to the House Judiciary Committee. The bill passed in the
House on October 24, 2001 with a 357-66 vote.
passing of the bill in the Senate was similar to that of the House. The Senate
Judiciary Committee negotiated the bill; however, it never was voted on within
committee and went straight to the Senate floor, where it was cleared by a 98-1
vote, on October 25. President Bush then signed the bill into law on October
The method in which this bill passed received little attention in the days directly following September 11, 2001, and like most of the Representatives voting on the bill, Americans felt that it was needed and needed fast. Now, three years, and a Michael Moore documentary later, many Americans are wondering if it wasn't just the procedure, but also the elements of the bill are too infringing upon the rights of the American people. Assistant Attorney General Daniel Bryant said, "We are safer [today than before Sept. 11], without having sacrificed any of our constitutional liberties and traditions."
simply, the debate boils down to security and liberties, yet even a cursory
study will indicate that it is far more complicated than that. There are seven
key provisions within the Act that are causing much of the debate.
Section 206, which has become known as the "Roving Wiretaps Clause," allows the FISA court to authorize law enforcement agencies the ability to wiretap individuals regardless of which phone or computer they are using. In the past, in order to get court approval for wiretaps, the law enforcement agency was only allowed to ask for specific phone number and computers to tap only after they had proved that the person in question uses the specific phone or computer. Now they are given the freedom to tap any source they desire as long as they can justify that the information they are receiving aids in the intelligence acquisition against terrorism.
Section 213, labeled the "Sneak and peek" clause, allows law enforcement agencies to receive search warrants, but gives them the right to refrain from divulging to the individual that one has been issued if it "may have an adverse result." This allows the agency to essentially to conduct searches with out the knowledge of the individual being searched, which in the past has been deemed unconstitutional. The clause does say that the target must be informed "within a reasonable time," but that time period is hardly defined and it can be extended with the court's approval.
Section 214, labeled the "Trap and Trace" clause, gives government agencies through the approval of the FISA court, the ability to trace outgoing or incoming phone calls as long as they pertain to intelligence gathered in regard to terrorism. Previously, this type of activity was only granted in foreign intelligence investigations.
Section 215, or the "Angry Librarian" clause, allows the FBI to appeal to the FISA court to give them the authority to obtain "any tangible things (including books, records, papers, documents, and other items) for an Ôauthorities investigation...to protect against international terrorism or clandestine intelligence activities.'" Additionally, the library, bookseller, or other business providing this information is not allowed to release that the FBI had sought information from them. Previously, this was done only when it concerned foreign intelligence information gathering or when it was related to foreign espionage.
Section 216 pertains to internet surveillance and it permits the government to monitor and process information transferred over the internet and other computer networks. The authorities are allowed to monitor the "dialing, routing, addressing or signaling," but not the specific content of the transmission. Previously, there had been no provisions within FISA for Internet transactions, as in 1978 the Internet was not public.
minor sections are 218 and 220. Section 218 allows physical searches,
wiretaps, and subpoenas that will produce foreign intelligence. Section 220
allows for a single federal court to approve national wiretaps that may or may
not be within the region or jurisdiction of that particular court.
There were some provisions that Attorney General John Ashcroft wanted in the Patriot Act but were later rejected by Congress. One example being that under Ashcroft's initial proposal, evidence obtained overseas that would be considered "illegal" in the states, but legal in the country they were obtained in, could be admissible as evidence. This was shot down by the Congress and serves to show that not everything
desired by the Justice Department was allotted, despite the hurried manner in
which the Act was passed.
debate over personal privacy and security deeply embedded in the history of
America as seen in Presidential orders, Congressional laws, and Supreme Court
decisions. For example, Abraham Lincoln suspended habeas corpus
eight different times through out his presidency,
along with restricting the media at the time from printing stories that did not
paint the Union in a favorable light.
But it is the progression through
the Supreme Court cases in involving search and seizures that shed historical
light into the complicated issue of the contemporary Patriot Act.
1928, the Supreme Court deliberated over Olmstead v. United States
. This case was brought to the courts attention
because for the first quarter of the 20th
century, the government
had been using wiretaps on phones with out receiving a warrant. The Court came
to the consensus that evidence acquired by law enforcement officials through
wiretaps with out a warrant was still admissible in court. It was a 5-4
decision, and though there was much discussion and division amongst the court,
ultimately they decided to remove electronic surveillance techniques from the
Fourth Amendment scrutiny.
In 1934, Congress attempted to curb this action by passing the Federal Communications Act, which made "intercepting and disclosing of any wire or radio communication illegal." However, this did little to stop the Executive branch from doing such activity, as they continued to follow the Supreme Court's interpretation of the Fourth Amendment, and the presence of unwarranted wiretaps continued.
was not until 1967, in Katz v United States, that the Supreme Court decided to revisit the issue of electronic
surveillance. It was this case that ultimately laid the foundation to modern
day surveillance techniques and procedures. The majority overruled Olmstead and decided that, although the Constitution does not
guarantee a general right to privacy, the Fourth Amendment had to extend to any
kind of searches, electronic or physical. Justice Stewart wrote:
For the Fourth Amendment protects
people, not places. What a person knowingly exposes to the public, even in his
own home or office, is not a subject of Fourth Amendment protection. But what
he seeks to preserve as private, even in an area accessible to the public, may
be constitutionally protected.
While this appears to be a victory
in the court for civil libertarians, there was an interesting footnote in the
concurring opinion given by Justices Douglas and White. Although all intelligence
gathering must have court approval in order to be constitutional, according to
footnote 23, this does not imply intelligence gathered for the purposes of
national security; thus, the beginning of the legal divide between domestic
criminal issues and domestic security issues.
The final action regarding surveillance took form in the Foreign Intelligence Surveillance Act of 1978 (FISA), and as previously mentioned, is the foundation of the Patriot Act of 2001. In the 1970s, it had become known that the CIA had complied large databases on thousands of Americans, which led President Ford and Congress to put together investigations into the allegations. What information surfaced was that during the 60s and 70s, the CIA had created large databases on anti-war efforts. All of these findings made one point clear, "The existing legal and policy constraints on intelligence activities were inadequate and...proper supervision and accountability within the Executive branch and to the Congress were sorely lacking."
was out of this that FISA was born. What FISA did for foreign intelligence
[It] create[d] a secure framework by which the executive branch [could] conduct legitimate electronic surveillance for foreign intelligence purposes within the context of [the United States'] commitment to privacy and individual rights.
And so for the first time, the
Executive branch had limited authority when conducting intelligence gathering;
hence the foundation of the Patriot Act put in place.
debate over the Patriot Act has caught many people in the crossfire of the
issue, and through often times political disputes can be divided amongst
political parties or ideologies, the Patriot Act has seemingly crossed all
lines on both sides of the debate.
Civil libertarians would have the American public believe that the CIA and NSA agents are empowered by the Patriot Act to roam through the streets allowing these agencies to collect information in any way it desires and round up anybody it wants. But as Eric Posner and John Yoo state in their Wall Street Journal article, "Nothing could be further from the truth. The Patriot Act represents a modest retrenchment from an overcautious interpretation of FISA, but nothing like the pre-1978 regime of warrantless searches." They continue to say:
Putting aside the hysterics, the
worst thing about the Patriot Act is its Orwellian name. It creates no
revolution in government powers, nor does it violate the Constitution. If the
Act marginally reduces peacetime liberties, this is a reasonable price to pay
for a valuable weapon against al Qaeda, a resourceful and adaptable enemy that
is skilled at escaping detection.
What many have come to realize as they have researched the topic of privacy vs. security following 9/11, is that most of the problems, or possible infringements, aren't found in the Patriot Act itself, but rather stem from other rules and guidelines put in place by the Justice Department (such as not allowing detainees to contact a lawyer, or once a lawyer is contacted, taping their sessions in order to further intelligence).
However, their are some who feel the Patriot Act is by nature, quite infringing on privacy rights. Ari Schwartz of the Washington, D.C.-based Center for Democracy and Technology says that, "[the Patriot Act] is clearly number one [on the President's sins against privacy." He continues by concluding that, "[the Patriot Act is the] biggest threat to privacy since the 1970s." Support for statements like this is not found so much in what the Patriot Act allows the agencies to do, but the means in which they allow them to do it. Civil libertarians, for example, are not arguing against the use of wiretaps, but rather, the process by which the agency has to go through in order to get a wire tap approved. The Patriot Act makes it one step easier, thus removing a level of check in balance established by the system. And what truly concerns most of those against the Patriot Act is the effects it is going to have on what many are labeling "The Patriot Act II." Attorney General John Ashcroft has not exactly maintained silence about his desire to include further expansion on intelligence gathering capabilities, which in turn would only further privacy advocates to put this fire out before it gets out of control.
the debate over civil liberties continues as the government continues to fight
terrorism on all fronts, the Patriot Act has proved to be a lot less
influential than initially thought. William C. Banks, a professor at Syracuse
University College of Law summarizes by saying:
Most people have this idea that [the Patriot Act] is a huge, monolithic charter. But you get down to brass tacks, there isn't that much to it, really. There are a few, maybe a half-dozen controversial provisions, some of which I think are quite problematic. It seems like it is a very thin debate on both sides. I have always reacted to the Patriot Act from its name to its implementation as something almost cartoon-like.
The Patriot Act is due to expire in 2005 and it will be interesting to see what happens to it in light President Bush's re-election. However, what is clear is that terrorism is not going to go away, nor will the essential responsibility of the government to protect its citizens from such terrorism. The goal should be however, to protect the citizens without sacrificing rights. Stephen J. Schulhofer puts it best, "If you can buy some security by giving up some liberty, it's by no means clear that giving up the liberty is the best way to buy that security."
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