Civil libertarians were shocked,
not only at the Act itself, but at the manner in which it
was enacted–hastily, without due deliberation, in a
state of national panic such as we had not seen since Dec.
7, 1941. They abhorred the unprecedented powers it gave to
the federal government to look into the private lives of
American citizens. Some seemed more appalled at the attack
on the Bill of Rights by our own government than they were
by the attacks on the World Trade Towers and the Pentagon
by Al Qaeda.
Defenders of the Act said, “Not to worry! The Supreme Court,
the traditional guardian of our civil liberties, including our
Fourth Amendment protections against unreasonable search and
seizure, will protect us from any abuse of these new powers!”
However, many U.S. citizens, then and now, believe that such
trust in the Court is misplaced, that we can no longer rely on
the Court to guaranty our Fourth Amendment protections, because
the Court itself has been backing away from vigorous enforcement
of the Amendment’s requirements regarding search and seizure.
Thus, all Americans are left in a precarious state regarding
the privacy of our “persons, houses, papers, and effects.”
And here’s the irony: While civil libertarians argue that
the Act is unconstitutional because it contravenes the Fourth
Amendment, analysis of the Court’s decisions over the last
40 years indicate a shockingly relaxed attitude toward individual
rights under the Amendment, and an increasing acceptance of police
power to fight crime. It is the Supreme Court, after all, that
makes determinations of constitutionality, and under the Court’s
current Fourth Amendment jurisprudence, the Act would probably
be considered “constitutional”!
Background: What is the Patriot Act, and what makes it so
dangerous to our civil liberties?
To begin, the Patriot Act act has nothing to do with patriotism.
First, its name, USAPATRIOT Act, is merely an acronym based
on the initials of its full title: “Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act.” Second, the Act’s
enforced subordination of our civil liberties to an overweening
government is hardly “patriotic”!
The Act was hastily drafted by two Department of Justice lawyers, Viet Dinh
and Michael Chertoff. (Then Chertoff headed the Department’s Criminal
Division; today he is secretary of Homeland Security.) It’s a huge document,
131 pages long, containing 160 different provisions, most of which are changes
to existing law and expansions of existing federal powers.
It was sent to Congress by the president a few weeks after 9/11 with an urgent
request for speedy passage; and it was, in fact, passed by the House of Representatives
on Oct. 24 and by the Senate on Oct. 25, and signed by the president on Oct.
26, about six weeks after the terrorist attacks. Many members of Congress complained
that everything was done so hastily that they hardly knew what they were considering.
Representative Ron Paul, R-Texas, is reported as saying that he never saw a
copy of the bill till the day it was called up by the House Republican leadership
for a vote.
Most of the provisions of the Act seem small and inconsequential; and it’s
very difficult to understand at first reading what they mean, because they
are usually brief amendments to existing law. Without studying that existing
law, it’s almost impossible to perceive the significance of the amendment.
These provisions appear to be little ripples on a vast ocean of law, but taken
together, they create a tsunami of dangerous change in the American criminal
There was, of course, a sharp outcry against the Act by
civil libertarians who immediately set to work deciphering
it. They were outraged, because it was quickly apparent that the Act allows unprecedented surveillance of Americans who
are not suspected of any domestic crime or of international
Organized opposition in the private sector rapidly developed,
and is best represented by the American Civil Liberties Union
(aclu.org), and by a new group called The Bill of Rights
Defense Committee (bordc.org). Several states, including
Hawai‘i, and more than 400 municipalities, have passed
resolutions opposing it. These resolutions are largely symbolic,
of course, because federal law supersedes state and local
law in the context of national security.
Before looking carefully at some specific provisions of the
Act, it’s important to recognize that there are significant
differences between investigative procedures generally embodied
in conventional criminal law and, by contrast, the new powers
authorized by the Act. The Act’s expanded powers are
ostensibly intended to fight terrorism, and on that mission,
we all wish them well! But the great danger is that those
powers can all too easily be perverted and used against just
about anyone: political opponents, unpopular minorities,
personal enemies, etc. And therein lies our country’s
enormous moral dilemma: To what extent must we put at risk
our civil liberties in the name of national security?
The Act’s Four Most Controversial Provisions
Four specific provisions have caused civil libertarians the
greatest concern: Sections 215, 505, 218, and 213. Each
provision in some way and to some degree (1) substantially
enhances executive branch [read “FBI”] discretion
about whom and when to surveil, and (2) expands executive
discretion as to whether and when to divulge that surveillance
has in fact taken place.
Section 215 – Access to Records and Other
Items under the Foreign Intelligence Surveillance Act
This section of the Act amends the Foreign Intelligence Surveillance
Act [FISA] and is aimed at third party custodians of business
records, such as banks, bookstores, doctors, schools. It
was nicknamed “the indignant librarians” section
because it also enables the FBI to require libraries to divulge
their patrons’ reading habits, and the American Library
Association strongly condemned it.
The section also deals with conventional criminal search
warrants, but in an unconventional manner. Its intent, of
course, is to catch terrorists, but it can easily be used
against innocent citizens.
Search warrants have long been used by law enforcement agencies
to get such information in domestic criminal investigations,
but safeguards have long been in place to protect against
the police must show “individualized suspicion” (that
is, they must identify the intended target by name and address
and indicate the type of records being sought);
they must have reason to believe that the target is an agent
of a foreign country; and
there must be “antecedent judicial review” of
the police request for a warrant (i.e., they must go before
a court, which then has independent discretion to issue a
warrant or not.)
Antecedent judicial review is an important oversight function
that the judicial branch of the government exercises over
the executive branch. It is part of the system of separated
powers or “checks and balances” that the framers
of our Constitution built into it, a system designed to prevent
any one of the three branches of government from exercising
excessive power. It ensures the existence of an independent
judiciary, a treasured concept of the framers who had suffered
too many injustices under a court system dominated by political
Now, however, under the PATRIOT Act, these traditional safeguards
are significantly circumscribed:
the Act greatly expands the kinds of records and objects
that can be taken by the FBI;
it eliminates the requirement of “individualized suspicion” (i.e.,
any and all documents can be targeted);
it eliminates the need to show any connection to a foreign
country (the FBI need only “certify” that “information
relevant to an investigation against international terrorism
or clandestine intelligence activities may be found”);
it eliminates meaningful antecedent judicial review because,
if the FBI so “certifies,” the court must issue
a warrant; and
it includes a nondisclosure provision (commonly called a “gag
order”) that prohibits the third party from telling
anyone but his lawyer about the search/seizure.
Section 505 – “Miscellaneous National
This section deals with “national security letters” and
is aimed at providers of communication services, such as
phone companies, Internet service providers, and libraries
with computer terminals. A national security letter (NSL)
is a type of subpoena, a court order to hand over identified
records, data, information, etc., that are considered relevant
to a civil or criminal action.
But an NSL is an administrative subpoena; i.e., it is not
issued by a court, but is issued by the FBI itself to itself–what
you might call a self-service subpoena. Thus, it eliminates
any opportunity for antecedent judicial review of the intended
Nor need the FBI show individualized suspicion or any connection
with a foreign power, but simply certify to itself that information
related to terrorism “may” be found. And, as
might be expected, a gag order is available to the FBI when
using an NSL.
By approving this provision, Congress forfeited the protection
against excessive police power that an independent judiciary
affords all of us.
Since no court need be involved, an NSL is much easier to
use than the search warrant issued under section 215. Accordingly,
section 215 has not been used much, while more than 30,000
NSLs have been issued yearly since the PATRIOT Act took effect.
Note that the NSL is used to get records of communications
but not the content or substance of what was actually communicated.
It does not involve wiretapping or eavesdropping, but is
used to look for frequently called numbers (especially to
foreign countries), and for patterns of communication between
two or more points that might suggest some ongoing relationship
Section 505 has been found unconstitutional by a United States
District Court, but an appeal by the Bush administration
Section 218 – “Foreign Intelligence
This section deals with electronic surveillance (read “wiretapping”):
intercepting and recording actual conversations, not merely
identifying patterns of communication, as in section 505.
It significantly expands and facilitates the FBI’s
ability to obtain wiretap warrants under FISA, which has
always been easier to do than going through conventional
criminal law procedures.
The PATRIOT Act’s simplified authority merely requires
the FBI to show that there is “probable cause” to
believe that the target is an “agent of a foreign power.” This
is a much lower threshold than having to show, under criminal
law, that the target is involved in criminal activity.
The Federal Omnibus Crime Control and Safe Streets Act of 1968,
which codifies criminal procedure in U.S. District Courts,
guarantees antecedent judicial review of applications for a
warrant to wiretap through the following process:
1. proceedings in open court;
2. probable cause to believe the target is involved in criminal
3. court discretion in granting a search warrant;
4. time limits on the surveillance;
5. ongoing court supervision of the surveillance;
6. notice to the target after surveillance has been terminated.
Obviously, it’s much quicker, easier, and more secretive
for the FBI to use section 218 of the PATRIOT Act in dealing
with this new area of the law called “anti-terrorism
law.” But the downside is that it seriously blurs the
line between fighting foreign espionage and terrorism, on the
one hand, and combating domestic crime on the other.
Section 213 – “Authority for Delaying
Notice of the Execution of a Warrant”
This section is charmingly referred to as “the sneak
and peek” section because it allows the FBI to use
traditional criminal search warrants without giving notice
to the target. That is, it allows agents secretly to enter
a home, office, warehouse, etc. without announcing their
presence and without having to tell the target that the premises
have been searched, or even that certain information or objects
have been seized, till months later.
Here again we see a radical departure from traditional notions
of privacy, especially of their homes, that Americans have
come to expect. It violates the general rule of criminal
procedure that contemporaneous notice of entry must be given
when a search warrant is executed. This general rule, popularly
known as “the knock and announce rule,” requires
police to act as follows:
1. Knock loudly on the door of the premises identified in
2. Announce loudly, “Open up! It’s the police
[or FBI]! We have a search warrant!”
3. Wait 20 seconds for the door to be opened.
4. Break down the door if it is not opened voluntarily.
This rule has been developed and refined over many years
and is, of course, designed to protect private citizens against
abusive and destructive police behavior. (Police have never
liked the rule because 20 seconds can allow a suspect to
dispose of incriminating evidence!)
The PATRIOT Act severely compromises this rule and is another
example of the spill over of intrusive power from the field
of international espionage and terrorism into the area of
domestic policing. In testimony before a congressional committee,
the U.S. Department of Justice has acknowledged that the
new authority has been used over 150 times, but only 10 of
those times involved terrorism!
So what’s this all mean?
Taken individually, perhaps the problems of the above four
sections of the Act can be brushed off as minor legal ripples,
not exactly devastating to the overall scheme of American
justice. But taken together, along with the other 150-plus
provisions, those ripples add up to a wave-like assault on
long-held expectations of fairness and security from governmental
intrusions in our private lives. It’s almost as though
our cherished notion that people’s lives should be
private while government officials should operate in the
open, has been inverted!
Next issue: Ralph Burr will examine the Judiciary and the