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Patriot Act

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Patriot Act Titles
Title I: Enhancing Domestic Security against Terrorism
Title II: Enhanced Surveillance Procedures
Title III:
Title IV: Protecting the border
Title V: Removing obstacles to investigating terrorism
Title VI: Providing for victims of terrorism, public safety officers and their families
Title VII: Increased information sharing for critical infrastructure protection
Title VIII: Strengthening the criminal laws against terrorism
Title IX: Improved intelligence
Title X: Miscellaneous
Patriot Act
Great Seal of the United States
Long titleUniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001
Acronyms (colloquial)USA PATRIOT Act
Enacted bythe 107th United States Congress
EffectiveFebruary 1, 2002
Citations
Public law107-56
Statutes at Large115 Stat. 272 (2001)
Legislative history

The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56), known as the USA PATRIOT Act or simply the Patriot Act, is an Act of Congress which U.S. President George W. Bush signed into law on October 26, 2001.

The Act expanded the authority of U.S. law enforcement agencies for the stated purpose of fighting terrorism in the United States and abroad. Among its provisions, the act increased the ability of law enforcement agencies to search telephone and e-mail communications and medical, financial, and other records; eased restrictions on foreign intelligence gathering within the United States; expanded the Secretary of the Treasury’s authority to regulate financial transactions, particularly those involving foreign individuals and entities; and enhanced the discretion of law enforcement and immigration authorities in detaining and deporting immigrants suspected of terrorism-related acts. The act also expanded the definition of terrorism to include "domestic terrorism", thus enlarging the number of activities to which the Patriot Act’s expanded law enforcement powers can be applied.[1]

The Act has been criticized from its inception for weakening protections of civil liberties. In particular, opponents of the law have criticized its authorization of indefinite detentions of immigrants; "sneak and peek" searches through which law enforcement officers search a home or business without the owner’s or the occupant’s permission or knowledge; the expanded use of "National Security Letters", which allow the FBI to search telephone, email, and financial records without a court order; and the expanded access of law enforcement agencies to government records, including library and financial records.[2] Since its passage, several legal challenges have been brought against the act, and Federal courts have ruled at least one provision unconstitutional.[3]

Many of the act's provisions were to sunset beginning December 31 2005, approximately 4 years after its passage. In the months preceding the sunset date, supporters of the act pushed to make its sunsetting provisions permanent, while critics sought to revise various sections to enhance civil liberty protections.[4] In July 2005, the U.S. Senate passed a reauthorization bill with substantial changes to several sections of the act, while the House reauthorization bill kept most of the act's original language. The two bills were then reconciled in a conference committee that was criticized by Senators from both parties for ignoring civil liberty concerns.[5] The “compromise bill,” which removed most of the changes from the Senate version, passed Congress on March 2, 2006 and was signed into law by President Bush on March 9, 2006.

Financial Anti-Terrorism Act

The Financial Anti-Terrorism Act was passed on October 17, 2001 by both Houses and also folded into the USA PATRIOT Act. It claims the power to freeze assets, investigate and prosecute those whom it suspects of being financial supporters of terrorism. Whether Congress has the Constitutional power to make this claim is the subject of much litigation.

Legislative history

President George W. Bush signing the USA PATRIOT Act, in the White House's East Room on October 26, 2001.

Introduced into the House of Representatives as House Resolution (HR) 3162 by Congressman James F. Sensenbrenner (R, WI) on October 23, the Act swept through Congress remarkably quickly and with little dissent. Assistant Attorney General Viet D. Dinh and future Secretary of Homeland Security Michael Chertoff were the primary drafters of the Act. The bill passed in the House the next day and in the Senate (Senator Russ Feingold (D-WI) cast the lone dissenting vote, and Senator Mary Landrieu (D-LA) was the sole non-voting member) on October 25. President Bush signed the bill into law on October 26.

The original Act had a sunset clause to ensure that Congress would need to take active steps to reauthorize it. One of the challenges to the original Act had been perceived civil liberties intrusions; consequently, the reauthorization resolution, which passed in 2006, included a number of relevant safeguards.

The Library of Congress' legislative history website, THOMAS, tracks the 45-day passage of the 300-plus page act, including links to successive versions.

Organization

The Act has ten titles, each containing numerous sections. These are:

Provisions

The Act mostly incorporates the provisions of the earlier anti-terrorism USA Act (H.R. 2975 and S. 1510). The Senate passed the USA Act on October 11, 2001. The House passed it on October 12, 2001. The primary differences between the USA Act and the USA PATRIOT Act are:

  • The inclusion of the Financial Anti-Terrorism Act (H.R. 3004), which expands money laundering abatement to international terrorism.
  • Immunity against prosecution for the providers of wiretaps in accordance with the Foreign Intelligence Surveillance Act of 1978.
  • Request for a report on integrating automated fingerprint identification for ports of entry into the United States.
  • Start of a foreign student monitoring program.
  • Request for machine readable passports.
  • Prevention of consulate shopping.
  • Expansion of the Biological Weapons Statute.
  • Clearer definition of "Electronic Surveillance"
  • Miscellaneous benefits for victims of the September 11 attack and extra penalties for those who illegally file for such benefits.

Much criticism against the 2001 Act had been directed at the provisions for Sneak-and-Peek searches — a term coined by the FBI. Critics argued that Provision 213 authorizes "surreptitious search warrants and seizures upon a showing of reasonable necessity and eliminates the requirement of Rule 41 of the Federal Rules of Criminal Procedure that immediate notification of seized items be provided."[6]

In special cases covered by FISA (amended by the USA PATRIOT Act), the warrants may come from the Foreign Intelligence Surveillance Court (FISC) instead of a common Federal or State Court. FISC warrants are not public record and therefore are not required to be released. Other warrants must be released, especially to the person under investigation.

A second complaint against Sneak-and-Peek searches is that the owner of the property (or person identified in business/library records) does not have to be told about the search. There is a special clause that allows the Director of the FBI to request phone records for a person without ever notifying the person. For all other searches, the person must be notified, but not necessarily before the search. The judge providing the warrant may allow a delay in notification when there is risk of:

  • endangering the life or physical safety of an individual;
  • flight from prosecution;
  • destruction of or tampering with evidence;
  • intimidation of potential witnesses; or
  • otherwise seriously jeopardizing an investigation or unduly delaying a trial.

The delays are on average 7 days, but have been as long as 90 days. [1] Section 213, which federal agencies report they have used 155 times since 2001, does not expire later this year like other USA PATRIOT Act provisions.

The American Civil Liberties Union argues that the term "serious jeopardy" is too broad "and must be narrowly curtailed."[7]

However, "sneak and peek" searches have been in use for a long time in criminal cases. Title II of the USA PATRIOT Act was intended to bring the monitoring of foreign powers and the agents of foreign powers into line with such criminal legislation. The main difference between criminal and FISA delayed notification on search warrants is that FISA warrants use a different legal standard when approving such orders (they use reasonable cause, not probable cause).

See also: United States Foreign Intelligence Surveillance Court

Government access to library records

Perhaps the most controversial section of the original Act was Section 215, dealing with a very narrow, implied right of federal investigators to access library and bookstore records. Section 215 allows FBI agents to obtain a warrant in camera (in secret) from the United States Foreign Intelligence Surveillance Court for library or bookstore records of anyone connected to an investigation of international terrorism or spying. On its face, the section does not even refer to "libraries," but rather to business records and other tangible items in general.[8] Civil libertarians and librarians in particular, argue that this provision violates patrons' human rights and it has now come to be called the "library provision." The Justice Department defends Section 215 by saying that because it requires an order to be issued by a FISA Court judge, it provides better protection for libraries.

On August 26, 2005, The New York Times reported that according to the ACLU, the FBI is demanding library records from a Connecticut institution as part of an intelligence investigation. This would be the first confirmed instance in which the Federal Bureau of Investigation has sought library records, federal officials and the ACLU said. Interestingly, though, the government did not seek the records under section 215, but instead used "National Security Letters," which are the FISA equivalent of grand jury subpoenas and do not require a court order and thus are easier to use than section 215.[9]

Reauthorization safeguards

The reauthorization resolution passed in 2006 contained the following civil liberties protections ("Safeguards"):[10]

  1. Requiring High-Level Approval and Additional Reporting to Congress for Section 215 Requests for Sensitive Information Such as Library or Medical Records: Without the personal approval of one of these 3 officials (FBI Director, Deputy Director or Official-in-Charge of Intelligence), the 215 order for these sensitive categories of records may not be issued.
  2. Statement of Facts Showing Relevance to a Terrorism or Foreign Spy Investigation Required for Section 215 Requests: The conference report requires that a Section 215 application must include a statement of facts demonstrating that the records sought are "relevant" to an authorized investigation to obtain terrorism or foreign intelligence information. This statement of facts civil liberty safeguard contained in the conference report does NOT exist under current law.
  3. Explicitly Allowing a United States Foreign Intelligence Surveillance Act (FISA) Court Judge to Deny or Modify a Section 215 Request: The USA PATRIOT Act conference report explicitly provides a FISA Court judge the discretion not only to approve or modify a Section 215 application, but also to deny an application.
  4. Requiring Minimization Procedures to Limit Retention and Dissemination of Information Obtained About U.S. Persons From Section 215 Requests: The USA PATRIOT Act conference report requires that the Attorney General create minimization procedures for the retention and dissemination of this data and that the FBI use these procedures. This civil liberty safeguard is not contained in current law and was requested by Senator Leahy.
  5. Explicitly Providing for a Judicial Challenge to a Section 215 Order: Current law requires judicial review before a Section 215 can be issued. The pending USA PATRIOT Act conference report explicitly established a judicial review process after the 215 order has been issued, to allow the recipient of a 215 order to challenge the order before the FISA Court.
  6. Explicitly Clarifying that a Recipient of a Section 215 Order May Disclose Receipt to an Attorney or Others Necessary to Comply with or Challenge the Order: Current law is silent as to whether a 215 order recipient may disclose the receipt of such an order to an attorney to comply with the order. The pending USA PATRIOT Act conference report clarifies this issue by stating explicitly that the recipient of a 215 order may disclose receipt to an attorney or others necessary to comply with or challenge the order.
  7. Requiring Public Reporting of the Number of Section 215 Orders: At the request of Senator Leahy and other Senate Democratic conferees, the USA PATRIOT Act Conference report requires the Justice Department to report to the public annually the aggregate number of Section 215 applications submitted, approved, modified, and denied.
  8. Requiring the Justice Department's Independent Inspector General to Conduct an Audit of Each Justice Department Use of Section 215 Orders: The USA PATRIOT Act conference report provides additional public information and congressional oversight by requiring the Justice Department's independent Inspector General to conduct an audit for each Justice Department use of Section 215 orders.
  9. Explicitly Providing for a Judicial Challenge to a National Security Letter (NSL): Current Law does not specify that an NSL can be challenged in court and provides no process for challenging an NSL. The conference report provides explicit authority to challenge in court an NSL under all existing statutes authorizing NSLs. This civil liberty safeguard is stronger than the Senate-passed bill, which only addressed one of the NSL statutes, does not exist under current law, and was written by Rep. Jeff Flake (R-Ariz.).
  10. Explicitly Clarifying that a Recipient of a National Security Letter (NSL) May Disclose Receipt to an Attorney or Others Necessary to Comply with or Challenge the Order: Current law is silent as to whether an NSL may disclose the receipt of such an order to an attorney to comply with or challenge the order. The pending USA PATRIOT Act conference report clarifies this issue by stating explicitly that the recipient of an NSL may disclose receipt to an attorney or others necessary to comply with or challenge the order.
  11. Providing that a Nondisclosure Order Does Not Automatically Attach to a National Security Letter (NSL): Instead, a nondisclosure requirement will attach to an NSL only upon a certification by the government that disclosure could cause one of the harms specified in the conference report, such as endangering a witness or threatening national security.
  12. Providing Explicit Judicial Review of a Nondisclosure Requirement to a National Security Letter (NSL): The NSL recipient may challenge the nondisclosure requirement in the U.S. district court for the district in which the recipient does business or resides.
  13. Requiring Public Reporting of the Number of National Security Letters (NSLs): At the request of Senator Leahy and other Senate Democratic conferees, the USA PATRIOT Act conference report includes – for the first time – public reporting on the aggregate number of NSLs requested for information about U.S. persons.
  14. Requiring the Justice Department’s Independent Inspector General to Conduct Two Audits of the Use of National Security Letters (NSLs): The USA PATRIOT Act conference report provides additional public information and congressional oversight by requiring the Justice Department’s independent Inspector General to conduct two audits on the use of NSLs during the years 2003 - 2006.
  15. Requiring Additional Reporting to Congress by the Justice Department on Use of National Security Letters (NSLs): Specifically, the conference report requires the House and Senate Judiciary Committees to receive all classified reports regarding use of NSLs; currently these committees only receive classified reports under one of the five statutes authorizing NSLs.
  16. Requiring the Justice Department to Re-Certify that Nondisclosure of a National Security Letter (NSL) is Necessary: If an NSL recipient challenges the prohibition on disclosure more than a year after the NSL is issued, the Justice Department must re-certify that nondisclosure is necessary, or else the nondisclosure requirement lapses.
  17. Narrowing the Deference Given to the Justice Department on a National Security Letter (NSL) Nondisclosure Certification: At the request of Senator Leahy, this heightened degree of deference is only provided to certifications made by a few Senate-confirmed officials at the time the nondisclosure petition is filed.
  18. Requiring a Report to Congress on Any Use of Data-Mining Programs by the Justice Department: The USA PATRIOT Act conference report enhances congressional oversight of data-mining programs by requiring the Justice Department to report to Congress on the use or development of any of these programs by the Justice Department.
  19. Requiring Notice Be Given on Delayed-Notice Search Warrants Within 30 Days of the Search: The USA PATRIOT Act reauthorization conference report narrows and clarifies the reasonable amount of time standard by providing a Court the discretion to delay notice for up to 30 days after the search is executed.
  20. Limiting Delayed-Notice Search Warrants Extensions to 90 Days or Less: The USA PATRIOT Act conference report narrows and clarifies the permissible delayed-notice extension period by providing a Court the discretion to extend the delay of notice for up to 90 days.
  21. Requiring an Updated Showing of Necessity in Order to Extend the Delay of Notice of a Search Warrant: To ensure that a Court considering extending a delay of notice has the best and most up-to-date information, the USA PATRIOT Act conference report requires an updated show of necessity by the applicant in order to extend the delay of notice of a search warrant.
  22. Requiring Annual Public Reporting on the Use of Delayed-Notice Search Warrant: Specifically, the annual public report will include the “number of applications for warrants and extensions of warrants authorizing delayed notice, and the number of such warrants and extensions granted or denied during the preceding fiscal year.”
  23. Requiring Additional Specificity from an Applicant Before Roving Surveillance May be Authorized: The USA PATRIOT Act conference report addresses concerns about vagueness in applications for “roving” wiretaps in foreign spying and terrorism investigations by requiring additional specificity in these applications in order for a FISA Court judge to consider authorizing a “roving” wiretap.
  24. Requiring Court Notification Within 10 Days of Conducting Surveillance on a New Facility Using a “Roving” Wiretap: The USA PATRIOT Act conference report addresses concerns the “roving” wiretap authority could be abused by requiring the investigators to inform the FISA Court within 10 days when the “roving” surveillance authority is used to target a new facility.
  25. Requiring Ongoing FISA Court Notification of the Total Number of Places or Facilities Under Surveillance Using a “Roving” Wiretap: The USA PATRIOT Act conference report enhances judicial oversight to address any concerns that the “roving” wiretap authority could be abused. Specifically, the conference report requires the FISA Court to be informed on an ongoing basis of the total number of places or facilities under surveillance using a “roving” wiretap authority.
  26. Requiring Additional Specificity in a FISA Court Judge’s Order Authorizing a “Roving” Wiretap: The USA PATRIOT Act conference report addresses concerns about vagueness about the target in a FISA Court judge’s order authorizing a “roving” wiretap in foreign spying and terrorism investigations by requiring additional specificity.
  27. Providing a Four-Year Sunset on FISA “Roving” Wiretap: Despite no evidence that the FISA “roving” wiretap authority has been abused, the USA PATRIOT Act conference report aggressively attempts to avoid any potential abuse of FISA “roving” wiretaps by providing a four-year sunset of this authority.

Enforcement

Wikinews has related news:

It is uncertain how many individuals or organizations have been charged or convicted under the Act. Throughout 2002 and 2003, the Department of Justice refused to release numbers. Former Attorney General John Ashcroft in his 2004 statement The Department of Justice: Working to Keep America Safer reported that there have been 368 individuals criminally charged in terrorism investigations, and later used the numbers 372 and 375. Of these he stated that 194 (later 195) resulted in convictions or guilty pleas. (The original statement;[11] the statement is reduced to a bullet list in 2004 Criminal Division Annual Report on page 9.). In June 2005, President Bush stated terrorism investigations yielded over 400 charges, more than half of which resulted in convictions or guilty pleas. In some of these cases, federal prosecutors chose to charge suspects with non-terror related crimes for immigration, fraud and conspiracy.

On September 11 2005 the American Civil Liberties Union reported:[12]

30,000 National Security Letters Issued Annually Demanding Information about Americans: USA PATRIOT Act Removed Need for FBI to Connect Records to Suspected Terrorists
[...] According to the Washington Post, universities and casinos have received these letters and been forced to comply with the demands to turn over private student and customer information. Anyone who receives an NSL is gagged - forever - from telling anyone that the FBI demanded records, even if their identity has already been made public.
In New York and Connecticut, the ACLU has challenged the NSL provision that was dramatically expanded by Section 505 of the USA PATRIOT Act. The legislation amended the existing NSL power by permitting the FBI to demand records of people who are not connected to terrorism and who are not suspected of any wrongdoing. [...]

Challenges to Limit the USA PATRIOT Act

U.S. Congress

On July 31, 2003, Senators Lisa Murkowski (R-AK) and Ron Wyden (D-OR), introduced the "Protecting the Rights of Individuals Act" (S. 1552).[13] This bill would revise several provisions of the Act to increase judicial review. For example, instead of PEN/Trap warrants to track Internet usage being based on the claims of law-enforcement, they would be based on "specific and articulable facts that reasonably indicate that a crime has been, is being, or will be committed, and that information likely to be obtained by such installation and use is relevant to the investigation of that crime." However, the Protecting the Rights of Individuals Act doesn't address the portion of Sec. 216 of the Act which allows unnamed persons to be subject to a PEN/Trap warrant based on law-enforcement certifying that those individuals should have been named.

On September 24, 2003, Congressman Dennis Kucinich (D-OH), Co-Chair of the Progressive Caucus, introduced legislation into the U.S. House of Representatives to repeal more than ten sections of the Act. The bill, titled the "Benjamin Franklin True Patriot Act", looks to review certain sections of the Act, including those that authorize sneak and peek searches, library, medical, and financial record searches, and the detention and deportation of non-citizens without full judicial review. Beyond the Act, the bill cements the right of attorney/client privilege and attempts to restore transparency in the Department of Justice and Department of Homeland Security by revoking FOIA secrecy orders, along with other important provisions.

Bernie Sanders (I-VT) with Reps. Jerrold Nadler (D-NY), John Conyers Jr. (D-MI), C. L. Otter (R-ID), and Ron Paul (R-TX) proposed an amendment to the Commerce, Justice, State Appropriations Bill of 2005 which would cut off funding to the Department of Justice for searches conducted under Section 215. The amendment initially failed to pass the House with a tie vote, 210–210. Although the original vote came down in favor of the amendment, the vote was held open and several House members were persuaded to change their votes. [2]

On June 15, 2005, a second attempt to limit Section 215 was successful in the House of Representatives. The House voted 238-187 in favor of the Sanders amendment to an appropriations bill. The Sanders amendment prevents the funds provided by the bill from being used by the FBI and the Justice Department to search library and book store records as authorized by Section 215 of FISA. This vote was misreported in many media outlets as a vote against Section 215.[14]

The Security and Freedom Ensured Act (SAFE) is legislation proposed by Senators Larry Craig (R-ID), John Sununu (R-NH) and Richard Durbin (D-IL) which would add checks and balances to the Act. This legislation, which was introduced in the House on April 6, 2005, would curtail some powers of the Act by requiring court reviews and reporting requirements.

Courts

Section 805 ruled vague

January 23, 2004, U.S. District Judge Audrey Collins ruled that Section 805 (which classifies "expert advice or assistance" as material support to terrorism) was vague, but did not violate the First or Fifth Amendment. The ruling was one of the first legal decisions to set a part of the Act aside.[15] The lawsuit against the act was brought by the Humanitarian Law Project, representing five organizations and two U.S. citizens who wanted to provide expert advice to Kurdish refugees in Turkey. Groups providing aid to these organizations had suspended their activities for fear of violating the Act, and they filed a lawsuit against the Departments of Justice and State to challenge the law, claiming the phrase "expert advice or assistance" was too vague.[16]

Collins granted the plaintiff's motion that "expert advice or assistance" is impermissibly vague, but denied a nationwide injunction against the provision. The plaintiffs were granted "enjoinment" from enforcement of the provision.

ACLU v. Ashcroft

Main article: American Civil Liberties Union v. Ashcroft (2004)

On April 9, 2004 the ACLU filed a lawsuit challenging the national security letter (NSL)[3] provisions of the Electronic Communications Privacy Act, which allows the Director of the FBI (or a designee not below Deputy Assistant Director of the FBI) to obtain customer records from phone and Internet companies in terrorism investigations. The ACLU successfully argued that phone companies and Internet Service Providers should be able to disclose receiving a subpoena from the Director of the FBI, and that doing so outweighs the Director's need for secrecy in counter-terrorism investigations. The Act is only affected indirectly by this lawsuit because the case is about a terrorism investigation and the Act extends the use of NSLs to non-terrorism investigations, but the ACLU's argument would apply to investigations of both types.

On September 29, 2004, U.S. District Judge Victor Marrero struck down Section 505—which allowed the government to issue "National Security Letters" to obtain sensitive customer records from Internet service providers and other businesses without judicial oversight—as a violation of the First and Fourth Amendment. The court also found the broad gag provision in the law to be an "unconstitutional prior restraint" on free speech, so it was turned down.[4]

After the ruling, Congress amended Section 505, codified at 18 U.S.C. 2709. On appeal, the case was dismissed as moot, but in May, 2006 the appeals court asked the district court to rule again on the amended version. On August 15, 2007 the ACLU argued the new case (Doe v. Gonzales) on behalf of the same anonymous Internet Service Provider, before the district court.[17] On September 6, 2007 Judge Marrero struck down the NSL provision of the revised Act, ruling that even with limited judicial review granted in the amended law, it was still a violation of the First Amendment and the separation of powers. However, Marrero has delayed enforcing the decision—and the unnamed plaintiff remains under a gag order—pending a possible appeal by the government.[18]

Resistance of state and local governments

Eight states (Alaska, California, Colorado, Hawaii, Idaho, Maine, Montana and Vermont) and 396 cities and counties (including New York City; Los Angeles; Dallas; Chicago; Eugene, Oregon; Philadelphia; and Cambridge, Massachusetts) have passed resolutions condemning the Act for attacking civil liberties. Arcata, California was the first city to pass an ordinance that bars city employees (including police and librarians) from assisting or cooperating with any federal investigations under the Act that would violate civil liberties (Nullification). The Bill of Rights Defense Committee is helping coordinate local efforts to pass resolutions. Pundits question the validity of these ordinances, noting that under the Constitution's supremacy clause, federal law overrides state and local laws. However, others have opined that the federal employees, in using such procedures for investigations, violate the Constitution's clauses in the fourth amendment, and in these cases, the Constitution overrides the USA PATRIOT Act's provisions.

Warrantless record seizures

A federal judge said that investigators cannot order Internet providers to turn over records without telling customers unless they first have court approval. U.S. District Judge Victor Marrero said on September 6, 2007 that the recently rewritten Patriot Act "offends the fundamental constitutional principles of checks and balances and separation of powers." The ACLU had challenged the law, saying it gave the FBI and other agencies the power to seize Internet service, telephone and public library records without the approval required by the constitution. [5]

Public opinion

In January 2002, 47% of Americans wanted their government to stop terrorism even if it reduced civil liberties. By November 2003 this number had dropped to 31%, indicating increasing concern about expanding government powers or reduced fear of terrorism. From 2003 to 2004, a majority of Americans felt that the Act was either just right or did not go far enough. By 2005, the people polled were statistically divided half and half for and against the Act. People began to oppose more and more policies that removed civil liberties at the cost of possibly catching a terrorist.

At the same time, only half of the people polled claimed to know some of the provisions of the Act. After the 2004 elections, the number of people claiming to know some of the provisions fell sharply.

Gallup Poll statistics[6][7][8]:

Does the USA PATRIOT Act go too far?
Date Too Far Not Too Far*
25 August-26 August 2003 22% 69%
10 November-12 November 2003 25% 65%
16 February-17 February 2004 26% 64%
13 April-16 April 2005 45% 49%
*Responded as it is a Necessary Tool, About Right, or Not Far Enough
What do you know about the USA PATRIOT Act?
Date A Lot Some Not Much Nothing
25 August-26 August 2003 10% 40% 25% 25%
10 November-12 November 2003 12% 41% 25% 22%
16 February-17 February 2004 13% 46% 27% 14%
13 April-16 April 2005 13% 28% 28% 29%
6 January-8 January 2006 17% 59% 18% 6%

Expiration and reauthorization

Under section 224, several of the surveillance portions (200-level sections) of the Act were originally to expire on December 31, 2005. The date was later extended to February 3, 2006. This extension was later extended again to March 10, 2006. The sunset provision excludes investigations that began before the expiration date. Those investigations may continue with the original Act's full powers.

The United States Senate voted to renew the Act on March 2 2006. On March 7 2006, the House gave its final vote in approval of renewing the act. [9] The legislation to extend the statute will make all but two of its provisions permanent. The provisions in question are the authority to conduct "roving" surveillance under the Foreign Intelligence Surveillance Act (FISA) and the authority to request production of business records under FISA (USA PATRIOT Act sections 206 and 215, respectively). These provisions will expire in 4 years.

Bush signed the reauthorization of the Act on March 9, 2006. After the public ceremony, he issued a "signing statement" to the effect that he would not feel bound to comply with some of the provisions of the law if they conflicted with other Constitutional laws. [10] This statement, though common throughout his Presidency, has been negatively covered by the media [11] and criticized for an apparent intention to withhold information that the Act required him to provide to Congress. [12]

Provisions that would expire (original version)

  • §201. Authority To Intercept Wire, Oral, And Electronic Communications Relating To Terrorism.
  • §202. Authority To Intercept Wire, Oral, And Electronic Communications Relating To Computer Fraud And Abuse Offenses.
  • §203(b), (d). Authority To Share Criminal Investigative Information.
  • §206. Roving Surveillance Authority Under The Foreign Intelligence Surveillance Act Of 1978.
  • §207. Duration Of FISA Surveillance Of Non-United States Persons Who Are Agents Of A Foreign Power.
  • §209. Seizure Of Voice-Mail Messages Pursuant To Warrants.
  • §212. Emergency Disclosure Of Electronic Communications To Protect Life And Limb.
  • §214. Pen Register And Trap And Trace Authority Under FISA.
  • §215. Access To Records And Other Items Under FISA.
  • §217. Interception Of Computer Trespasser Communications.
  • §218. Foreign Intelligence Information. (Lowers standard of evidence for FISA warrants.)
  • §220. Nationwide Service Of Search Warrants For Electronic Evidence.
  • §223. Civil liability For Certain Unauthorized Disclosures.
  • §224. Sunset. (self-cancelling)
  • §225. Immunity For Compliance With FISA Wiretap.

Provisions that are permanent (original version)

Congressional action

On June 10, 2005, during testimony at a House Judiciary Committee hearing on the reauthorization of the Act, Chairman James Sensenbrenner,R-Wisconsin (one of the Act's authors) abruptly gaveled the proceedings to a close after Congressional Democrats and their witnesses launched into a broad denunciations of the War on Terror and the condition of detainees at Guantanamo Bay. In frustration, Sensenbrenner declared, "We ought to stick to the subject. The USA PATRIOT Act has nothing to do with Guantanamo Bay. The USA PATRIOT Act has nothing to do with enemy combatants. The USA PATRIOT Act has nothing to do with indefinite detentions." He then gaveled the meeting to a close and walked out with the gavel. However Jerrold Nadler, a Democrat Congressman representing New York's 8th congressional district, and other witnesses continued speaking despite Sensenbrenner's departure, and C-SPAN cameras continued to roll after microphones in the hearing room had been turned off. [13]

On July 21, 2005, the House of Representatives passed HR3199, the USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005, which would have removed certain sunset clauses entirely rather than renewing them or allowing them to be enacted. The act was introduced by Representative Sensenbrenner.

On December 16, 2005, the Senate refused to end debate on legislation to renew the Act. The Senate fell seven votes short of invoking closure on the matter, leaving the future of the Act in doubt. The vote went as follows: Fifty Republicans as well as two Democrats voted unsuccessfully to end debate; Five Republicans, 41 Democrats and one independent voted to block.

On December 21, 2005, the U.S. Senate came to a bipartisan agreement (S.2167) to extend by six months the expiring provisions of the Act. Under House rules, the House Judiciary Committee Chairman James Sensenbrenner had the authority to block enactment of the six-month extension. On the following day, December 22 2005, the House rejected the six-month extension and voted for a one-month extension, which the U.S. Senate subsequently approved later that night. Pending President Bush's signature, the provisions of the USA PATRIOT Act will remain in effect until February 3, 2006.

On February 17, 2006, the Washington Times reported:

"Last week, Republican Sens. John E. Sununu of New Hampshire, Larry E. Craig of Idaho, Lisa Murkowski of Alaska and Chuck Hagel of Nebraska, all dropped their opposition to the bill after modifications were made that they said appeased their concerns about protecting civil liberties." [14]

Comparisons to historical laws and official acts

The Decree of the Reich President for the Protection of People and State (Reichstag Fire Decree or DRPPPS) and subsequent Enabling Act that empowered Adolf Hitler to seize control of Germany are often compared to the USA PATRIOT Act.[15] The most obvious similarities are that both were passed after an act attributed to terrorism, both were passed quickly, both limited civil liberties with the ostensible purpose of protecting the people, and both were used in excess of their expressed purpose. The English translation of Article 1 of the DRPPPS states that the decree intends "...to restrict the rights to personal freedom, freedom of speech, including the freedom of the press, the freedom to organize and assemble, the privacy of letters, mail, telegraphs and telephones, order searches and confiscations and restrict property, even if this is not otherwise provided for by present law." The USA Patriot Act is not as explicit about its intentions, often wording the act in terms of what civil liberties and safeguards people have left.
The Reichstag Fire Decree differs from the USA PATRIOT Act in that the DRPPPS more explicitly seizes states rights and associates the death penalty with many offenses. Additionally, some of the USA PATRIOT Act originally had a sunset provision, whereas the set expiration date of the Enabling Act was dependent upon a succession of power, and the DRPPPS did not have a set expiration date. The USA PATRIOT Act and the Enabling Act were both passed by a freely elected Congress, whereas the DRPPPS was an "emergency decree" by the German president made at the behest of then-chancellor Adolf Hitler.
Although the USA PATRIOT Act differs in some respects, the Reichstag Fire Decree and subsequent Enabling Act are cited as examples of how giving up civil liberties in times of crisis can be used to legally overthrow a government's constitution from within.
  • The Sedition Act of 1918 is sometimes compared to the USA PATRIOT Act because of the latter's perceived chilling effect on free speech. However, the Sedition Act had the explicit and specific purpose of quelling anti-government speech while the nation was at war. The Sedition Act was repealed in 1921.[citation needed]
The AEDPA is the direct predecessor of the USA PATRIOT Act and contains many provisions that were maintained and expanded by the USA PATRIOT Act, including those relating to terrorism, FISA, immigration, and so on. See David Cole's book, listed below in the critics section.
  • COINTELPRO is thought of as similar to the USA PATRIOT Act in that it was allowed because of fear of an enemy (the Soviet Union in this case) and permitted actions that would not be acceptable during peacetime. The primary similarity in content was that invasion of privacy could be carried out in secrecy without probable cause if the investigator felt that it was necessary for national security.[16]

See also

Notes

  1. ^ Department of Justice Web site
  2. ^ Abramson, Larry. "The Patriot Act: Alleged Abuses of the Law." NPR.org. July 20, 2005. Retrieved April 9, 2007.
  3. ^ Reardon, Marguerite and Declan McCullagh. "ACLU Challenges Patriot Act". News.com, November 2, 2005. Retrieved on April 9, 2007.
  4. ^ [http://www.cnn.com/2005/POLITICS/12/21/patriot.act/index.html%7C "Senate gives Patriot Act six more months"]. CNN.com, December 22, 2005. Retrieved April 9, 2007.
  5. ^ "SAFE Act Co-Sponsors say PATRIOT Act Conference Report Unacceptable."
  6. ^ http://talkleft.com/new_archives/000279.html
  7. ^ http://newstandardnews.net/content/?action=show_item&itemid=1776
  8. ^ http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2003/03/10/MN14634.DTL
  9. ^ http://www.nytimes.com/2005/08/26/politics/26patriot.html
  10. ^ http://judiciary.house.gov/Printshop.aspx?Section=232
  11. ^ http://permanent.access.gpo.gov/websites/usdojgov/www.usdoj.gov/ag/speeches/2004/ag_successes_110904.htm Working to Keep America Safer
  12. ^ http://www.aclu.org/natsec/warpowers/21261prs20051107.html
  13. ^ http://www.fas.org/irp/congress/2003_cr/s1552.html
  14. ^ http://clerk.house.gov/floorsummary/floor.html?day=20050615
  15. ^ http://files.findlaw.com/news.findlaw.com/cnn/docs/terrorism/hlpash12304ord.pdf
  16. ^ http://www.cnn.com/2004/LAW/01/27/patriot.act/
  17. ^ Patriot Act Gag Power is Unconstitutional, ACLU Tells Court, August 15, 2007 ACLU press release. Accessed September 7, 2007.
  18. ^ Adam Liptak, "Judge Voids F.B.I. Tool Granted by Patriot Act", New York Times, September 7, 2007. Accessed September 7, 2007.
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Government sources

  • The Act began as House Resolution (H.R.) 3162.

Supportive views

Critical views

Other

Law review articles

Books

  • Cole, Dave, and James X. Dempsey. Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security. 2nd ed. New York: W. W. Norton & Co., 2002. ISBN 1-56584-782-2. (Full discussion of prior legislative history of the Act, going back more than ten years.)
  • Harvey, Robert and Hélène Volat. De l'exception à la règle. USA PATRIOT Act[18]. Paris: Lignes, 2006. 215 p.
  • Mailman, Stanley, Jeralyn E. Merritt, Theresa M. B. Van Vliet, and Stephen Yale-Loehr. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) Act of 2001: An Analysis. Newark, NJ and San Francisco, CA: Matthew Bender & Co., Inc. (a member of the LexisNexis Group), 2002. (Rel.1-3/02 Pub. 1271) ("An expert analysis of the significant changes in the new USA Patriot Act of 2001 [which]...track[s] the legislation by section, explaining both the changes and their potential impact with respect to: enhanced surveillance procedures;money laundering and financial crimes; protecting the border; investigation of terrorism; information sharing among federal and state authorities; enhanced criminal laws and penalties for terrorism offenses, and more.")
  • Michaels, C. William. No Greater Threat: America Since September 11 and the Rise of the National Security State. Algora Publishing, 2002. ISBN 0-87586-155-5. (Covers all ten titles of the USA PATRIOT Act; an updated version, including discussion of amendments and complements to the Act, is just completed but not yet available.)
  • Van Bergen, Jennifer. The Twilight of Democracy: The Bush Plan for America. Common Courage Press, 2004. ISBN 1-56751-292-5. (A constitutional analysis for the general public of the USA PATRIOT Act and other administrative measures, with the first half of the book spent on principles of democracy and constitutional law.)
  • Brasch, Walter. America's Unpatriotic Acts: The Federal Government's Violation of Constitutional and Civil Rights. Peter Lang Publishing , 2005. ISBN 0820476080 (A long list of civil rights abuse claims by the Bush Administration inside the United States and other countries.)
  • Kam C. Wong, "The Impact of USA Patriot Act on American Society: An Evidence Based Assessment" (N.Y.: Nova Press, 2007) (In print)
  • Kam C. Wong, "The Making of USA Patriot Act: Legislation, Implementation, Impact" (Beijing: China Law Press, 2007) (In print)
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