"The Slow, Systematic Death of the Bill of Rights" By Nicki Fellenzer Editor/Writer - www.TheWarOnTerrorsim.com December 19, 2002 It's time to 'Take Aim' at the USA PATRIOT Act. I realize this legislation has been in effect for over a year. However, with the Homeland Security Department well on its way to becoming a reality, and numerous individuals, civil rights groups and even localities crying for changes, the law is once again in the spotlight. INTRODUCTION AND BACKGROUND "They who would give up an essential liberty for temporary security, deserve neither liberty or security." - Benjamin Franklin The 9-11 attacks left the country on edge, legislators jittery, and the public demanding that "something be done." One of the legislative consequences of the attacks was the USA PATRIOT ACT - Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act. The legislation was passed overwhelmingly in the House of Representatives (356-66) and nearly unanimously in the Senate (98-1). The nearly superstitious fervor that accompanied the passage of this bill and subsequent signing of the legislation by President George W. Bush on October 26, 2001 was rivaled only by its much ballyhooed potential as a weapon in the war on terrorism. There were no public hearings and nearly no debate on the bill.[i] There was no conference or committee report on the legislation. According to Rep. Ron Paul of Texas, the text of the USA PATRIOT Act was not made available for review before the vote.[ii] And yet, this extensive measure was hastily drafted and passed in six weeks and touted as a recipe for battling terrorism. In fact, this legislation represents a potential hazard to the Bill of Rights, especially the Fourth and Fifth Amendments to the US Constitution. It's a danger to due process guarantees and safeguards against unreasonable searches and seizures. And yet, the legislators who whizzed this legislation through without subjecting it to the usual deliberative process have chosen to promote this legislation as an expression of patriotism, rather than what it really is a constitutionally vague, knee-jerk reaction of government officials to an atrocity committed on US soil. During the Carter administration, Congress passed the Foreign Intelligence Surveillance Act (FISA), which created a new federal court to approve electronic surveillance of citizens and resident aliens who were suspected of acting on behalf of a foreign power. The standard for FISA approval is actually lower than "probable cause," which has been the Constitutional standard for granting warrants in criminal matters. The USA PATRIOT Act allows FISA approval for domestic and criminal matters under the guise of "national security" in effect circumventing or gutting Fourth Amendment protections against reasonable search and seizure.[iii] This legislation is dangerous. It represents a gigantic loophole in the law, allowing the state to evade Constitutional issues and apply loose standards to criminal investigations. The FISA revision is only one of the expanded powers granted to the federal government by the USA PATRIOT Act. Other expanded powers and loopholes which could lead to possible infringements on civil rights include government access to financial records, inflated surveillance capabilities on Internet surfing and certain searches of personal property without the knowledge of the owner.[iv] The bill also allows expanded detention, allowing the Attorney General to keep suspects in custody for up to seven days if they're non-citizens suspected of terrorism, violating the due process protections afforded to them by the Constitution.[v] The USA PATRIOT Act sacrifices the very freedoms we cherish at the altar of "national security." The unprecedented power grab represented by this legislation and its granting of broad surveillance and detention powers in the name of "national security" is nothing less than an impotent executive branch trying to exert its authority over the general populace to foster an appearance of efficiency and competence. BROAD NEW POWERS Under the Act, Americans' reasonable expectation of privacy under the Fourth Amendment is compromised by expanded surveillance and search and seizure powers granted to the executive branch. These powers are largely unchecked and include the ability to track email and Internet usage, conduct sneak-and-peek searches and conduct nationwide roving wiretaps.[vi] Congress has set a sunset clause on several of these procedures, with some of these new, expanded powers due to expire on December 31, 2005. However, this still leaves the executive branch with a largely unrestricted authority to violate the Fourth Amendment rights of Americans for over four years. Meanwhile, foreign intelligence investigations that began before the sunset date, and offenses that began or occurred before the sunset date are exempt from this expiration date. (a) IN GENERAL- Except as provided in subsection (b), this title and the amendments made by this title (other than sections 203(a), 203(c), 205, 208, 210, 211, 213, 216, 219, 221, and 222, and the amendments made by those sections) shall cease to have effect on December 31, 2005. (b) EXCEPTION- With respect to any particular foreign intelligence investigation that began before the date on which the provisions referred to in subsection (a) cease to have effect, or with respect to any particular offense or potential offense that began or occurred before the date on which such provisions cease to have effect, such provisions shall continue in effect.[vii] The Bush administration made no secret of its hopes that the Patriot Act would be broadly interpreted by the judiciary branch. In a letter to Senators Bob Graham, Orrin Hatch, Patrick Leahy, and Richard Shelby, Assistant Attorney General Daniel J. Bryant had the unmitigated goal to state: The courts have observed that even the use of deadly force is reasonable under the Fourth Amendment if used in self-defense or to protect others... Here, for Fourth Amendment purposes, the right to self-defense is not that of an individual, but that of the nation and its citizens... If the government's heightened interest in self-defense justifies the use of deadly force, then it certainly would also justify warrantless searches.[viii] The above obscenity actually represents a public official voicing his hopes that the Constitution will be circumvented! WARANTLESS SEARCHES According to Section 213 of the Act, police may conduct searches of homes and offices without notifying the owner that the search is being conducted. Furthermore, this section allows an officer to delay notifying the subject of the search that a warrant is being executed if reasonable cause exists "...to believe that providing immediate notification... may have an adverse result." This same section also allows the government to delay notifying a home or business owner about the execution of a warrant if a court finds there's a "reasonable necessity for the seizure." The above stipulation represents a further erosion of Fourth Amendment inquiry into what constitutes a "reasonable" search and violates Rule 41(d) of the Federal Rules of Criminal Procedure. Part of the "reasonableness" statute of the Fourth Amendment, according to case law (Wilson v. Arkansas, 514 U.S. 927, 929 (1995).), is the right of the home or business owner to examine the warrant for any deficiencies and to ensure that the search is being properly conducted in accordance with the warrant. Meanwhile, under the aforementioned Rule 41(d) "The officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken or shall leave the copy and receipt at the place from which the property was taken." If notification of the execution of the warrant is delayed, both the precedent set in Wilson v. Arkansas and Rule 41(d) can be violated.[ix] According to Section 213, notification may be delayed for a reasonable period of time, but no specific limit is set, allowing the government to conduct unconstitutional searches of homes of offices. Additionally, this section doesn't just apply to investigations into suspected terrorism, but to all criminal investigations, and is not included in the sunset clause of Section 224.[x] Furthermore, under Section 203 of the Act, law enforcement has the authority to share criminal investigative information with agencies such as the CIA, NSA and the Secret Service. No judicial review is required for the sharing of wiretap and grand jury information, which effectively allows these intelligence agencies to keep tabs on ordinary citizens under the guise of "national security." Section 218 is a radical provision in the USA PATRIOT Act, which amends FISA's wiretap and physical search provisions. Prior to the passage of this bill, FISA's lax standards could only be applied if the actual purpose of the surveillance was the gathering of foreign intelligence. No more, however. Section 218 relaxes that standard to apply to a domestic criminal investigation if the gathering of foreign intelligence information merely constitutes a significant purpose of the surveillance. ELECTRONIC SURVEILLANCE Prior to the September 11th attacks, a wiretap order targeted toward a specific person or group was confined to a particular computer or telephone. This is no longer the case. The new law allows a court to issue an order that is valid anywhere in the U.S. that is it may "rove" wherever a target goes, including a public library. Additionally, roving wiretaps and pen trap orders to include searches performed on the internet and keywords typed into browsers.[xi] Under Section 216, a law enforcement agent or a government attorney can get a pen register, which records the telephone number of an outgoing call, or trap and trace order, which records the source of an incoming telephone call. To get such an order, the agent must simply certify to a judge that the information to be obtained is "relevant to an ongoing criminal investigation." According to case law, information about who sent an email to whom and when holds no reasonable expectation of privacy much like the address blocks on a regular envelope or telephone numbers, which are necessarily provided to the telephone companies in order to complete a call. Much like the outside of an envelope, or a telephone number that's dialed, envelope information on emails isn't protected by constitutional privacy expectations.[xii] However, this is where the constitutional challenges arise. While the sender of a letter can reasonably expect that the contents of a sealed letter will be private, unless no envelope is provided with the address block on the letter serving as an address device for the post office, and while a caller can reasonably expect that the content of his telephone conversation can be private, unless it's transmitted over public airwaves... ...because the content of email messages is invariably contained on the same "page" as the "envelope information", the courts could reasonably rule that the content of an email message is not constitutionally protected. To give credit where credit is due, however, Congress did make an attempt to protect content - that "dialing, routing, addressing or signaling informati... shall not include the contents of any communication." With email messages, the line between "envelope information" and actual content is blurred, since email messages move in packages that include both contact information and content. Since courts have ruled that a letter traveling without an envelope is not subject to the same constitutional protections as a sealed letter, the same could conceivably apply to an email message. While the pen register statute makes it a crime to obtain such information without a court order, the USA PATRIOT Act makes it much easier for the court order to be obtained under FISA provisions, which are much more lax than the "probable cause" standards used for search warrants. According to Professor Susan Herman of the Brooklyn Law School, "Between 1996 and 2000, out of 4,275 applications for FISA warrants, 4,275 were granted. Because the point is to gather intelligence rather than evidence, challenges to the legality of surveillance aren't likely to arise. The subjects may never even know that they have been under surveillance." FINANCIAL RECORDS AND READING HABITS Under Section 215 of the USA PATRIOT Act, a law enforcement agent may apply for a court order "requiring the production of 'any tangible things (including books, records, papers, documents, and other items)' upon his written statement that these items are being sought for an investigation 'to protect against international terrorism or clandestine intelligence activities.'" Under this section, the FBI may obtain personal records, education records, financial records and even medical records as long as it certifies these records will be used for an investigation "to protect against international terrorism or clandestine intelligence activities." The FBI doesn't even have to suspect the person whose records are being sought of any wrongdoing. The subject may simply be "relevant" to the investigation.[xiii] Think your school records are private? They aren't. The Act amends the Family Education Records and Privacy Act to permit educational institutions to disclose student records to federal law enforcement officials without student consent. All the Attorney General or a similarly ranked official has to do is obtain a court order certifying a "terrorism investigation."[xiv] According to Cornell's Center for Information Technology, federal agents can also gain access to survey information, which is otherwise deemed "confidential." Furthermore, according to Cornell staff: - FBI can seize with a court order certain business records pursuant to an investigation of "international terrorism or other clandestine intelligence activities..." - Prohibits record keeper to disclosure FBI action to anyone "other than those persons necessary to produce the tangible things under this section..." And while the Patriot Act doesn't require proactive storage of data on individuals, it can require learning institutions, libraries and even bookstores to collect and store specified personal data for as long as 180 days.[xv] Think your financial records are your own personal business? Not anymore. Section 319 of the Patriot Act requires financial institutions to provide "information and account documentation for any account opened, maintained, administered or managed in the [U.S.] by the covered financial institution" within 120 hours of receiving a request for such information by an appropriate federal banking agency.[xvi] Additionally, if a foreign bank or financial institution fails to comply with or challenges a summons or a subpoena in any United States court, any American financial institution doing business with that bank must terminate any relationship with the aforementioned entity within ten business days of receipt of a written notice from the Justice or Treasury Departments notifying that the foreign entity has failed to comply with a summons or subpoena. Furthermore, the business relationship must be terminated regardless of the outcome of the challenge in court.[xvii] This certainly sounds like government interference in private commerce transactions. DUE PROCESS According to Charles Doyle, Senior Specialist with the American Law Division, the USA PATRIOT Act creates two types of forfeitures and creates modifications for several procedures related to confiscation. The Act: Establishes a mechanism to acquire long arm jurisdiction, for purposes of forfeiture proceedings, over individuals and entities; Allows confiscation of property located in this country for a wider range of crimes committed in violation of foreign law; Permits U.S. enforcement of foreign forfeiture orders; Calls for the seizure of correspondent accounts held in U.S. financial institutions for foreign banks who are in turn holding forfeitable assets overseas; and Denies corporate entities the right to contest a confiscation if their principal shareholder is a fugitive.[xviii] Furthermore, the law allows for the detention and deportation of aliens without due process. Section 412 of the Act allows the Attorney General to detain any alien certified to be engaged in terrorist activities and to begin deportation proceedings or charge them with criminal activity within seven days of detention. If deportation proceedings are unlikely to remove the alien within a reasonable amount of time, and if the release of the alien threatens national security, the Attorney General is authorized by the act to detain the individual for additional periods of up to six months. Your First Amendment rights are no longer sacred, thanks to paranoid, rash and overzealous politicians. Section 411 of the Act redefines "terrorist activity" and broadens the definition of "terrorist" to include persons or groups who publicly endorse terrorist activity in the United States (endangering First Amendment rights), anyone who uses a position of prominence to endorse terrorist activity or persuade others to do so, spouses and children of people engaged in terrorism and "any other person the Secretary of State or Attorney General determines has been associated with a terrorist organization and who intends to engage in activities that could endanger the welfare, safety, or security of the United States."[xix] Such a broad definition of "terrorism" essentially gives the Attorney General carte blanche to detain whomever he sees as a threat at any time. Furthermore, the bill broadens the definition of a terrorist "engaging in a terrorist activity" to include anyone who supports either financially or in other material ways - an organization that the individual knows or should know is a terrorist organization, "regardless of whether or not the purported purpose for the support is related to terrorism." In other words, under this definition, bad judgment in association or help to others could conceivably lead to surveillance, search and possibly detention. IS THE ACT CURRENTLY BEING ABUSED? A survey of nearly 2000 libraries performed by the University of Illinois last December and January revealed the FBI searched one of every nine of the nation's largest libraries for information after the September attacks on the World Trade Center and the Pentagon. Librarians are prohibited by law from telling patrons targeted in these probes and whose rights they feel have been violated that they've been under surveillance.[xx] Since the passage of the legislation, the Justice Department created a list of 5,000 foreign men wanted for questioning not because of any evidence of wrongdoing, but because they fit a profile. In Portland, Oregon, police refused to question Middle Eastern immigrants as they have been instructed by the DOJ, on the grounds that it would amount to religious discrimination under state law and could leave them open to a civil lawsuit. Acting police chief Andrew Kirkland said: "The law does not allow us to go out and arbitrarily interview people whose only offence is immigration or citizenship."[xxi] Just recently the University of California at San Diego has ordered a student organization to delete hyperlinks to an alleged terrorist Web site, citing the recently enacted USA Patriot Act. School administrators have told the group, called the Che Cafe Collective, that linking to a site supporting the Revolutionary Armed Forces of Columbia (FARC) violated a law that bans "providing material support to support terrorists," and warned that the student organization would face disciplinary action if it did not immediately remove the link to FARC. "The concern of the institution is that this could be interpreted as a violation of the law," UCSD University Centers Director Gary Ratcliff said. "What we're trying to be is pro-active here. If the FBI decided to pay attention to this matter, the repercussions would go way beyond their group because we're providing network services."[xxii] In November, 2001 the Justice Department admitted to holding and detaining about 1100 immigrants, none of whom had been charged with committing a terrorist act, and only a few of whom were actually held as material witnesses to the September 11th attacks. Only about 185 of these Middle Eastern detainees were being held on immigration charges.[xxiii] In September, Senators charged with overseeing the Department of Justice criticized the agency for over-stepping expanded wiretap powers granted last fall following the September 11th attacks.[xxiv] Recently several civil rights groups have filed Freedom of Information Act (FOIA) requests to the DOJ asking for records of implementation of the Act during the past year. The ACLU has noted that the Justice Department has been less than forthcoming with simple statistical information and policy directives. And finally, thanks to a recent court ruling, which will give the Justice Department expanded surveillance powers under the USA PATRIOT Act, the Attorney General, like a spoiled kid with a new toy, has moved quickly to establish a new computer system to allow quick attainment of court approval for surveillance. Considering that 100 percent of the applications for FISA warrants from 1996 to 2000 have been approved, can we expect such lax standards to be applied to domestic criminal cases? Can we expect a judicial rubberstamp for surveillance? I wouldn't be surprised. CONCLUSION Compared to some countries, such as France, whose government passed sweeping new laws allowing police to search private property without a warrant; Germany, whose government engaged in religious profiling of suspected terrorists; Britain, where the Parliament passed a sweeping anti-terrorism law that authorizes a central government authority to record and store all communications data generated by e-mail, Internet browsing or other electronic communications, and to provide the data to law enforcement without a court order.[xxv] America's legal response to terrorism has been relatively restrained, focusing on the Constitution's checks and balances provisions to ensure that civil liberties are protected. While the executive branch has tried to increase its own authority across the board, the courts and Congress have acted to protect a more reasoned balance between liberty and security.[xxvi] However, it doesn't mean that the danger to Americans' civil liberties doesn't exist. The opportunity for First, Fourth and Fifth Amendment infringements are without a doubt contained within the passages of the USA PATRIOT Act. The fact that the executive branch has taken only limited advantage of the provisions, doesn't change the fact of their existence. It doesn't change the fact that existing law now provides a way for the executive branch to circumvent the Constitution. Providing such a tremendous opportunity to those in power to exercise even more control is dangerous and inconsistent with the spirit of the founders of our country. The American public has to ultimately decide whether or not it wishes to provide the executive branch with the opportunity to become a police state, exchanging some liberties for security in a post 9-11 world. BIBLIOGRAPHY 1. 107th Congress; H.R. 3162; Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 2. American Civil Liberties Union; Legislative Analysis; November, 2001; http://www.aclu.org/congress/l110101a.html 3. Campbell, Duncan; "CIA link to arrests in 50 countries"; Guardian Unlimited; November, 2001; 4. Carlson, Caron; "DOJ Accused of Abusing Wiretaps"; Eweek; September, 2002; http://www.eweek.com/article2/0,3959,526772,00.asp 5. Chang, Nancy; "The USA PATRIOT Act: What's So Patriotic About Trampling on the Bill of Rights?"; November, 2001; http://www.ccr-ny.org/whatsnew/usa_patriot_act.asp 6. Doyle, Charles; "The USA PATRIOT Act: A Sketch"; CRS Report for Congress; April, 2002; http://www.fas.org/irp/crs/RS21203.pdf 7. Goldstein, Amy et.al. "A Deliberate Strategy of Disruption"; Washington Post; November, 2001; http://www.washingtonpost.com/ac2/wp-dyn/A36356-2001Nov3 8. Herman, Susan; "THE USA PATRIOT ACT AND THE US DEPARTMENT OF JUSTICE: LOSING OUR BALANCES?"; December, 2001; http://jurist.law.pitt.edu/forum/forumnew40.htm 9. Kerr, Orin; "Internet Surveillance Law after the USA PATRIOT Act: The Big Brother that isn't"; August, 2002; http://papers.ssrn.com/sol3/papers.cfm?abstract_id=317501 10. Levy, Robert A. "The USA Patriot Act: We Deserve Better"; The Cato Institute; November, 2001; http://www.cato.org/current/terrorism/pubs/levy-martial-law.html 11. Libertarian Party News; August, 2002; http://www.lp.org/lpnews/0208/paul.html 12. McCullagh, Declan; "University bans controversial links."; Business Week Online; October, 2002; http://www.businessweek.com/technology/cnet/stories/959544.htm 13. Minow, Mary; "The USA PATRIOT Act and Patron Privacy on Library Internet Terminals"; December, 2001; http://www.cla-net.org/pubs/Minow_uspatriotact.html 14. Mitrano, Tracy; "The Patriot Act of 2001: Potential implications for Information Technologies in Colleges and Universities"; Slide show; January, 2002; http://www.cit.cornell.edu/oit/PatriotAct/present.html 15. Radelat, Ana; "Is the government snooping too much?"; Gannett News Service; August, 2002; http://www.baxterbulletin.com/ads/911-anv/civil-liberties/page2.html 16. Rosen, Jeffrey; "Liberty is winning so far"; Washington Post; September, 2002; http://www.bouldernews.com/bdc/insight/article/0,1713,BDC_2494_1444799,00.html 17. Schmidt, Susan; "Recognition of Patriot Act Urged"; Washington Post; August, 2002; http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&node=&contentId=A55070- 2002Aug23¬Found=true 18. Straub, Noelle; "USA Patriot Act powers prompt second look"; The Hill; May, 2002; http://www.hillnews.com/050102/patriot.shtm 19. Zdrojeski, Ronald W.; "Ramifications of the USA Patriot Act, Part II New Requirements on Financial Institutions."; April, 2002; http://www.internetlawjournal.com/content/ecomarticle04150203.htm 20. H.R. 3162: USA PATRIOT ACT of 2001: Section-by-section analysis; October, 2001; http://www.house.gov/judiciary_democrats/usapatriotsecbysec102301.pdf ENDNOTES [i] Levy, Robert A. "The USA Patriot Act: We Deserve Better"; November, 2001 [ii] Libertarian Party News; August, 2002 [iii] Levy, Robert A. Op. Cit. [iv] Ibid. [v] Ibid. [vi] 107th Congress; H.R. 3162; Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001; Sections 201-223 [vii] 107th Congress; H.R. 3162; Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001; Sections 224-225 [viii] Ibid. [ix] Ibid. [x] Herman, Susan; "THE USA PATRIOT ACT AND THE US DEPARTMENT OF JUSTICE: LOSING OUR BALANCES?"; December, 2001 [xi] Minow, Mary; "The USA PATRIOT Act and Patron Privacy on Library Internet Terminals"; December, 2001 [xii] Ibid. [xiii] Chang; op.cit. [xiv] Mitrano, Tracy; "The Patriot Act of 2001: Potential implications for Information Technologies in Colleges and Universities"; Slide show; January, 2002 [xv] Ibid. [xvi] Zdrojeski, Ronald W.; "Ramifications of the USA Patriot Act, Part II New Requirements on Financial Institutions."; April, 2002 [xvii] Ibid. [xviii] Doyle, Charles; "The USA PATRIOT Act: A Sketch"; CRS Report for Congress; April, 2002 [xix] H.R. 3162: USA PATRIOT ACT of 2001: Section-by-section analysis; October, 2001; [xx] Radelat, Ana; "Is the government snooping too much?"; Gannett News Service; August, 2002 [xxi] Campbell, Duncan; "CIA link to arrests in 50 countries"; Guardian Unlimited; November, 2001 [xxii] McCullagh, Declan; "University bans controversial links."; Business Week Online; October, 2002 [xxiii] Goldstein, Amy et.al. "A Deliberate Strategy of Disruption"; Washington Post; November, 2001 [xxiv] Carlson, Caron; "DOJ Accused of Abusing Wiretaps"; Eweek; September, 2002 [xxv] Rosen, Jeffrey; "Liberty is winning... so far"; Washington Post; September, 2002 [xxvi] Ibid. © 2002, All rights reserved. This article appears at www.TheWarOnTerrorism.com with the permission of the author, and courtesy of www.ArmedFemalesOfAmerica.com |
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"The Slow, Systematic Death of the Bill of Rights" By Nicki Fellenzer Editor/Writer - www.TheWarOnTerrorsim.com December 19, 2002 It's time to 'Take Aim' at the USA PATRIOT Act. I realize this legislation has been in effect for over a year. However, with the Homeland Security Department well on its way to becoming a reality, and numerous individuals, civil rights groups and even localities crying for changes, the law is once again in the spotlight. INTRODUCTION AND BACKGROUND "They who would give up an essential liberty for temporary security, deserve neither liberty or security." - Benjamin Franklin The 9-11 attacks left the country on edge, legislators jittery, and the public demanding that "something be done." One of the legislative consequences of the attacks was the USA PATRIOT ACT - Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act. The legislation was passed overwhelmingly in the House of Representatives (356-66) and nearly unanimously in the Senate (98-1). The nearly superstitious fervor that accompanied the passage of this bill and subsequent signing of the legislation by President George W. Bush on October 26, 2001 was rivaled only by its much ballyhooed potential as a weapon in the war on terrorism. There were no public hearings and nearly no debate on the bill.[i] There was no conference or committee report on the legislation. According to Rep. Ron Paul of Texas, the text of the USA PATRIOT Act was not made available for review before the vote.[ii] And yet, this extensive measure was hastily drafted and passed in six weeks and touted as a recipe for battling terrorism. In fact, this legislation represents a potential hazard to the Bill of Rights, especially the Fourth and Fifth Amendments to the US Constitution. It's a danger to due process guarantees and safeguards against unreasonable searches and seizures. And yet, the legislators who whizzed this legislation through without subjecting it to the usual deliberative process have chosen to promote this legislation as an expression of patriotism, rather than what it really is a constitutionally vague, knee-jerk reaction of government officials to an atrocity committed on US soil. During the Carter administration, Congress passed the Foreign Intelligence Surveillance Act (FISA), which created a new federal court to approve electronic surveillance of citizens and resident aliens who were suspected of acting on behalf of a foreign power. The standard for FISA approval is actually lower than "probable cause," which has been the Constitutional standard for granting warrants in criminal matters. The USA PATRIOT Act allows FISA approval for domestic and criminal matters under the guise of "national security" in effect circumventing or gutting Fourth Amendment protections against reasonable search and seizure.[iii] This legislation is dangerous. It represents a gigantic loophole in the law, allowing the state to evade Constitutional issues and apply loose standards to criminal investigations. The FISA revision is only one of the expanded powers granted to the federal government by the USA PATRIOT Act. Other expanded powers and loopholes which could lead to possible infringements on civil rights include government access to financial records, inflated surveillance capabilities on Internet surfing and certain searches of personal property without the knowledge of the owner.[iv] The bill also allows expanded detention, allowing the Attorney General to keep suspects in custody for up to seven days if they're non-citizens suspected of terrorism, violating the due process protections afforded to them by the Constitution.[v] The USA PATRIOT Act sacrifices the very freedoms we cherish at the altar of "national security." The unprecedented power grab represented by this legislation and its granting of broad surveillance and detention powers in the name of "national security" is nothing less than an impotent executive branch trying to exert its authority over the general populace to foster an appearance of efficiency and competence. BROAD NEW POWERS Under the Act, Americans' reasonable expectation of privacy under the Fourth Amendment is compromised by expanded surveillance and search and seizure powers granted to the executive branch. These powers are largely unchecked and include the ability to track email and Internet usage, conduct sneak-and-peek searches and conduct nationwide roving wiretaps.[vi] Congress has set a sunset clause on several of these procedures, with some of these new, expanded powers due to expire on December 31, 2005. However, this still leaves the executive branch with a largely unrestricted authority to violate the Fourth Amendment rights of Americans for over four years. Meanwhile, foreign intelligence investigations that began before the sunset date, and offenses that began or occurred before the sunset date are exempt from this expiration date. (a) IN GENERAL- Except as provided in subsection (b), this title and the amendments made by this title (other than sections 203(a), 203(c), 205, 208, 210, 211, 213, 216, 219, 221, and 222, and the amendments made by those sections) shall cease to have effect on December 31, 2005. (b) EXCEPTION- With respect to any particular foreign intelligence investigation that began before the date on which the provisions referred to in subsection (a) cease to have effect, or with respect to any particular offense or potential offense that began or occurred before the date on which such provisions cease to have effect, such provisions shall continue in effect.[vii] The Bush administration made no secret of its hopes that the Patriot Act would be broadly interpreted by the judiciary branch. In a letter to Senators Bob Graham, Orrin Hatch, Patrick Leahy, and Richard Shelby, Assistant Attorney General Daniel J. Bryant had the unmitigated goal to state: The courts have observed that even the use of deadly force is reasonable under the Fourth Amendment if used in self-defense or to protect others... Here, for Fourth Amendment purposes, the right to self-defense is not that of an individual, but that of the nation and its citizens... If the government's heightened interest in self-defense justifies the use of deadly force, then it certainly would also justify warrantless searches.[viii] The above obscenity actually represents a public official voicing his hopes that the Constitution will be circumvented! WARANTLESS SEARCHES According to Section 213 of the Act, police may conduct searches of homes and offices without notifying the owner that the search is being conducted. Furthermore, this section allows an officer to delay notifying the subject of the search that a warrant is being executed if reasonable cause exists "...to believe that providing immediate notification... may have an adverse result." This same section also allows the government to delay notifying a home or business owner about the execution of a warrant if a court finds there's a "reasonable necessity for the seizure." The above stipulation represents a further erosion of Fourth Amendment inquiry into what constitutes a "reasonable" search and violates Rule 41(d) of the Federal Rules of Criminal Procedure. Part of the "reasonableness" statute of the Fourth Amendment, according to case law (Wilson v. Arkansas, 514 U.S. 927, 929 (1995).), is the right of the home or business owner to examine the warrant for any deficiencies and to ensure that the search is being properly conducted in accordance with the warrant. Meanwhile, under the aforementioned Rule 41(d) "The officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken or shall leave the copy and receipt at the place from which the property was taken." If notification of the execution of the warrant is delayed, both the precedent set in Wilson v. Arkansas and Rule 41(d) can be violated.[ix] According to Section 213, notification may be delayed for a reasonable period of time, but no specific limit is set, allowing the government to conduct unconstitutional searches of homes of offices. Additionally, this section doesn't just apply to investigations into suspected terrorism, but to all criminal investigations, and is not included in the sunset clause of Section 224.[x] Furthermore, under Section 203 of the Act, law enforcement has the authority to share criminal investigative information with agencies such as the CIA, NSA and the Secret Service. No judicial review is required for the sharing of wiretap and grand jury information, which effectively allows these intelligence agencies to keep tabs on ordinary citizens under the guise of "national security." Section 218 is a radical provision in the USA PATRIOT Act, which amends FISA's wiretap and physical search provisions. Prior to the passage of this bill, FISA's lax standards could only be applied if the actual purpose of the surveillance was the gathering of foreign intelligence. No more, however. Section 218 relaxes that standard to apply to a domestic criminal investigation if the gathering of foreign intelligence information merely constitutes a significant purpose of the surveillance. ELECTRONIC SURVEILLANCE Prior to the September 11th attacks, a wiretap order targeted toward a specific person or group was confined to a particular computer or telephone. This is no longer the case. The new law allows a court to issue an order that is valid anywhere in the U.S. that is it may "rove" wherever a target goes, including a public library. Additionally, roving wiretaps and pen trap orders to include searches performed on the internet and keywords typed into browsers.[xi] Under Section 216, a law enforcement agent or a government attorney can get a pen register, which records the telephone number of an outgoing call, or trap and trace order, which records the source of an incoming telephone call. To get such an order, the agent must simply certify to a judge that the information to be obtained is "relevant to an ongoing criminal investigation." According to case law, information about who sent an email to whom and when holds no reasonable expectation of privacy much like the address blocks on a regular envelope or telephone numbers, which are necessarily provided to the telephone companies in order to complete a call. Much like the outside of an envelope, or a telephone number that's dialed, envelope information on emails isn't protected by constitutional privacy expectations.[xii] However, this is where the constitutional challenges arise. While the sender of a letter can reasonably expect that the contents of a sealed letter will be private, unless no envelope is provided with the address block on the letter serving as an address device for the post office, and while a caller can reasonably expect that the content of his telephone conversation can be private, unless it's transmitted over public airwaves... ...because the content of email messages is invariably contained on the same "page" as the "envelope information", the courts could reasonably rule that the content of an email message is not constitutionally protected. To give credit where credit is due, however, Congress did make an attempt to protect content - that "dialing, routing, addressing or signaling informati... shall not include the contents of any communication." With email messages, the line between "envelope information" and actual content is blurred, since email messages move in packages that include both contact information and content. Since courts have ruled that a letter traveling without an envelope is not subject to the same constitutional protections as a sealed letter, the same could conceivably apply to an email message. While the pen register statute makes it a crime to obtain such information without a court order, the USA PATRIOT Act makes it much easier for the court order to be obtained under FISA provisions, which are much more lax than the "probable cause" standards used for search warrants. According to Professor Susan Herman of the Brooklyn Law School, "Between 1996 and 2000, out of 4,275 applications for FISA warrants, 4,275 were granted. Because the point is to gather intelligence rather than evidence, challenges to the legality of surveillance aren't likely to arise. The subjects may never even know that they have been under surveillance." FINANCIAL RECORDS AND READING HABITS Under Section 215 of the USA PATRIOT Act, a law enforcement agent may apply for a court order "requiring the production of 'any tangible things (including books, records, papers, documents, and other items)' upon his written statement that these items are being sought for an investigation 'to protect against international terrorism or clandestine intelligence activities.'" Under this section, the FBI may obtain personal records, education records, financial records and even medical records as long as it certifies these records will be used for an investigation "to protect against international terrorism or clandestine intelligence activities." The FBI doesn't even have to suspect the person whose records are being sought of any wrongdoing. The subject may simply be "relevant" to the investigation.[xiii] Think your school records are private? They aren't. The Act amends the Family Education Records and Privacy Act to permit educational institutions to disclose student records to federal law enforcement officials without student consent. All the Attorney General or a similarly ranked official has to do is obtain a court order certifying a "terrorism investigation."[xiv] According to Cornell's Center for Information Technology, federal agents can also gain access to survey information, which is otherwise deemed "confidential." Furthermore, according to Cornell staff: - FBI can seize with a court order certain business records pursuant to an investigation of "international terrorism or other clandestine intelligence activities..." - Prohibits record keeper to disclosure FBI action to anyone "other than those persons necessary to produce the tangible things under this section..." And while the Patriot Act doesn't require proactive storage of data on individuals, it can require learning institutions, libraries and even bookstores to collect and store specified personal data for as long as 180 days.[xv] Think your financial records are your own personal business? Not anymore. Section 319 of the Patriot Act requires financial institutions to provide "information and account documentation for any account opened, maintained, administered or managed in the [U.S.] by the covered financial institution" within 120 hours of receiving a request for such information by an appropriate federal banking agency.[xvi] Additionally, if a foreign bank or financial institution fails to comply with or challenges a summons or a subpoena in any United States court, any American financial institution doing business with that bank must terminate any relationship with the aforementioned entity within ten business days of receipt of a written notice from the Justice or Treasury Departments notifying that the foreign entity has failed to comply with a summons or subpoena. Furthermore, the business relationship must be terminated regardless of the outcome of the challenge in court.[xvii] This certainly sounds like government interference in private commerce transactions. DUE PROCESS According to Charles Doyle, Senior Specialist with the American Law Division, the USA PATRIOT Act creates two types of forfeitures and creates modifications for several procedures related to confiscation. The Act: Establishes a mechanism to acquire long arm jurisdiction, for purposes of forfeiture proceedings, over individuals and entities; Allows confiscation of property located in this country for a wider range of crimes committed in violation of foreign law; Permits U.S. enforcement of foreign forfeiture orders; Calls for the seizure of correspondent accounts held in U.S. financial institutions for foreign banks who are in turn holding forfeitable assets overseas; and Denies corporate entities the right to contest a confiscation if their principal shareholder is a fugitive.[xviii] Furthermore, the law allows for the detention and deportation of aliens without due process. Section 412 of the Act allows the Attorney General to detain any alien certified to be engaged in terrorist activities and to begin deportation proceedings or charge them with criminal activity within seven days of detention. If deportation proceedings are unlikely to remove the alien within a reasonable amount of time, and if the release of the alien threatens national security, the Attorney General is authorized by the act to detain the individual for additional periods of up to six months. Your First Amendment rights are no longer sacred, thanks to paranoid, rash and overzealous politicians. Section 411 of the Act redefines "terrorist activity" and broadens the definition of "terrorist" to include persons or groups who publicly endorse terrorist activity in the United States (endangering First Amendment rights), anyone who uses a position of prominence to endorse terrorist activity or persuade others to do so, spouses and children of people engaged in terrorism and "any other person the Secretary of State or Attorney General determines has been associated with a terrorist organization and who intends to engage in activities that could endanger the welfare, safety, or security of the United States."[xix] Such a broad definition of "terrorism" essentially gives the Attorney General carte blanche to detain whomever he sees as a threat at any time. Furthermore, the bill broadens the definition of a terrorist "engaging in a terrorist activity" to include anyone who supports either financially or in other material ways - an organization that the individual knows or should know is a terrorist organization, "regardless of whether or not the purported purpose for the support is related to terrorism." In other words, under this definition, bad judgment in association or help to others could conceivably lead to surveillance, search and possibly detention. IS THE ACT CURRENTLY BEING ABUSED? A survey of nearly 2000 libraries performed by the University of Illinois last December and January revealed the FBI searched one of every nine of the nation's largest libraries for information after the September attacks on the World Trade Center and the Pentagon. Librarians are prohibited by law from telling patrons targeted in these probes and whose rights they feel have been violated that they've been under surveillance.[xx] Since the passage of the legislation, the Justice Department created a list of 5,000 foreign men wanted for questioning not because of any evidence of wrongdoing, but because they fit a profile. In Portland, Oregon, police refused to question Middle Eastern immigrants as they have been instructed by the DOJ, on the grounds that it would amount to religious discrimination under state law and could leave them open to a civil lawsuit. Acting police chief Andrew Kirkland said: "The law does not allow us to go out and arbitrarily interview people whose only offence is immigration or citizenship."[xxi] Just recently the University of California at San Diego has ordered a student organization to delete hyperlinks to an alleged terrorist Web site, citing the recently enacted USA Patriot Act. School administrators have told the group, called the Che Cafe Collective, that linking to a site supporting the Revolutionary Armed Forces of Columbia (FARC) violated a law that bans "providing material support to support terrorists," and warned that the student organization would face disciplinary action if it did not immediately remove the link to FARC. "The concern of the institution is that this could be interpreted as a violation of the law," UCSD University Centers Director Gary Ratcliff said. "What we're trying to be is pro-active here. If the FBI decided to pay attention to this matter, the repercussions would go way beyond their group because we're providing network services."[xxii] In November, 2001 the Justice Department admitted to holding and detaining about 1100 immigrants, none of whom had been charged with committing a terrorist act, and only a few of whom were actually held as material witnesses to the September 11th attacks. Only about 185 of these Middle Eastern detainees were being held on immigration charges.[xxiii] In September, Senators charged with overseeing the Department of Justice criticized the agency for over-stepping expanded wiretap powers granted last fall following the September 11th attacks.[xxiv] Recently several civil rights groups have filed Freedom of Information Act (FOIA) requests to the DOJ asking for records of implementation of the Act during the past year. The ACLU has noted that the Justice Department has been less than forthcoming with simple statistical information and policy directives. And finally, thanks to a recent court ruling, which will give the Justice Department expanded surveillance powers under the USA PATRIOT Act, the Attorney General, like a spoiled kid with a new toy, has moved quickly to establish a new computer system to allow quick attainment of court approval for surveillance. Considering that 100 percent of the applications for FISA warrants from 1996 to 2000 have been approved, can we expect such lax standards to be applied to domestic criminal cases? Can we expect a judicial rubberstamp for surveillance? I wouldn't be surprised. CONCLUSION Compared to some countries, such as France, whose government passed sweeping new laws allowing police to search private property without a warrant; Germany, whose government engaged in religious profiling of suspected terrorists; Britain, where the Parliament passed a sweeping anti-terrorism law that authorizes a central government authority to record and store all communications data generated by e-mail, Internet browsing or other electronic communications, and to provide the data to law enforcement without a court order.[xxv] America's legal response to terrorism has been relatively restrained, focusing on the Constitution's checks and balances provisions to ensure that civil liberties are protected. While the executive branch has tried to increase its own authority across the board, the courts and Congress have acted to protect a more reasoned balance between liberty and security.[xxvi] However, it doesn't mean that the danger to Americans' civil liberties doesn't exist. The opportunity for First, Fourth and Fifth Amendment infringements are without a doubt contained within the passages of the USA PATRIOT Act. The fact that the executive branch has taken only limited advantage of the provisions, doesn't change the fact of their existence. It doesn't change the fact that existing law now provides a way for the executive branch to circumvent the Constitution. Providing such a tremendous opportunity to those in power to exercise even more control is dangerous and inconsistent with the spirit of the founders of our country. The American public has to ultimately decide whether or not it wishes to provide the executive branch with the opportunity to become a police state, exchanging some liberties for security in a post 9-11 world. BIBLIOGRAPHY 1. 107th Congress; H.R. 3162; Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 2. American Civil Liberties Union; Legislative Analysis; November, 2001; http://www.aclu.org/congress/l110101a.html 3. Campbell, Duncan; "CIA link to arrests in 50 countries"; Guardian Unlimited; November, 2001; 4. Carlson, Caron; "DOJ Accused of Abusing Wiretaps"; Eweek; September, 2002; http://www.eweek.com/article2/0,3959,526772,00.asp 5. Chang, Nancy; "The USA PATRIOT Act: What's So Patriotic About Trampling on the Bill of Rights?"; November, 2001; http://www.ccr-ny.org/whatsnew/usa_patriot_act.asp 6. Doyle, Charles; "The USA PATRIOT Act: A Sketch"; CRS Report for Congress; April, 2002; http://www.fas.org/irp/crs/RS21203.pdf 7. Goldstein, Amy et.al. "A Deliberate Strategy of Disruption"; Washington Post; November, 2001; http://www.washingtonpost.com/ac2/wp-dyn/A36356-2001Nov3 8. Herman, Susan; "THE USA PATRIOT ACT AND THE US DEPARTMENT OF JUSTICE: LOSING OUR BALANCES?"; December, 2001; http://jurist.law.pitt.edu/forum/forumnew40.htm 9. Kerr, Orin; "Internet Surveillance Law after the USA PATRIOT Act: The Big Brother that isn't"; August, 2002; http://papers.ssrn.com/sol3/papers.cfm?abstract_id=317501 10. Levy, Robert A. "The USA Patriot Act: We Deserve Better"; The Cato Institute; November, 2001; http://www.cato.org/current/terrorism/pubs/levy-martial-law.html 11. Libertarian Party News; August, 2002; http://www.lp.org/lpnews/0208/paul.html 12. McCullagh, Declan; "University bans controversial links."; Business Week Online; October, 2002; http://www.businessweek.com/technology/cnet/stories/959544.htm 13. Minow, Mary; "The USA PATRIOT Act and Patron Privacy on Library Internet Terminals"; December, 2001; http://www.cla-net.org/pubs/Minow_uspatriotact.html 14. Mitrano, Tracy; "The Patriot Act of 2001: Potential implications for Information Technologies in Colleges and Universities"; Slide show; January, 2002; http://www.cit.cornell.edu/oit/PatriotAct/present.html 15. Radelat, Ana; "Is the government snooping too much?"; Gannett News Service; August, 2002; http://www.baxterbulletin.com/ads/911-anv/civil-liberties/page2.html 16. Rosen, Jeffrey; "Liberty is winning so far"; Washington Post; September, 2002; http://www.bouldernews.com/bdc/insight/article/0,1713,BDC_2494_1444799,00.html 17. Schmidt, Susan; "Recognition of Patriot Act Urged"; Washington Post; August, 2002; http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&node=&contentId=A55070- 2002Aug23¬Found=true 18. Straub, Noelle; "USA Patriot Act powers prompt second look"; The Hill; May, 2002; http://www.hillnews.com/050102/patriot.shtm 19. Zdrojeski, Ronald W.; "Ramifications of the USA Patriot Act, Part II New Requirements on Financial Institutions."; April, 2002; http://www.internetlawjournal.com/content/ecomarticle04150203.htm 20. H.R. 3162: USA PATRIOT ACT of 2001: Section-by-section analysis; October, 2001; http://www.house.gov/judiciary_democrats/usapatriotsecbysec102301.pdf ENDNOTES [i] Levy, Robert A. "The USA Patriot Act: We Deserve Better"; November, 2001 [ii] Libertarian Party News; August, 2002 [iii] Levy, Robert A. Op. Cit. [iv] Ibid. [v] Ibid. [vi] 107th Congress; H.R. 3162; Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001; Sections 201-223 [vii] 107th Congress; H.R. 3162; Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001; Sections 224-225 [viii] Ibid. [ix] Ibid. [x] Herman, Susan; "THE USA PATRIOT ACT AND THE US DEPARTMENT OF JUSTICE: LOSING OUR BALANCES?"; December, 2001 [xi] Minow, Mary; "The USA PATRIOT Act and Patron Privacy on Library Internet Terminals"; December, 2001 [xii] Ibid. [xiii] Chang; op.cit. [xiv] Mitrano, Tracy; "The Patriot Act of 2001: Potential implications for Information Technologies in Colleges and Universities"; Slide show; January, 2002 [xv] Ibid. [xvi] Zdrojeski, Ronald W.; "Ramifications of the USA Patriot Act, Part II New Requirements on Financial Institutions."; April, 2002 [xvii] Ibid. [xviii] Doyle, Charles; "The USA PATRIOT Act: A Sketch"; CRS Report for Congress; April, 2002 [xix] H.R. 3162: USA PATRIOT ACT of 2001: Section-by-section analysis; October, 2001; [xx] Radelat, Ana; "Is the government snooping too much?"; Gannett News Service; August, 2002 [xxi] Campbell, Duncan; "CIA link to arrests in 50 countries"; Guardian Unlimited; November, 2001 [xxii] McCullagh, Declan; "University bans controversial links."; Business Week Online; October, 2002 [xxiii] Goldstein, Amy et.al. "A Deliberate Strategy of Disruption"; Washington Post; November, 2001 [xxiv] Carlson, Caron; "DOJ Accused of Abusing Wiretaps"; Eweek; September, 2002 [xxv] Rosen, Jeffrey; "Liberty is winning... so far"; Washington Post; September, 2002 [xxvi] Ibid. © 2002, All rights reserved. This article appears at www.TheWarOnTerrorism.com with the permission of the author, and courtesy of www.ArmedFemalesOfAmerica.com |
