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by Ralph Burr, adjunct instructor in political science and constitutional law


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 justice system!

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 terrorism.

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 abuse:

· 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 powers.

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 Security Authorities”

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 search.

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 between them.

Section 505 has been found unconstitutional by a United States District Court, but an appeal by the Bush administration is pending.

Section 218 – “Foreign Intelligence Information”

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 activity;

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 the warrant.

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 Fourth Amendment




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