Patriot Act (Long) (1 Viewer)

[Zyphlin]

I thought I'd go ahead and for the fun of it paste my Senior Seminar paper that I did this year to finish off my Bachelors. Not claiming to be an expert, but it was a truly enlightening paper that I think takes a stance that doesn't show up in scholarly articles all to much. I know its long, but would welcome anyones comments on it. (My appologizes at the end, i pulled an all nighter finishing the last bit of this up, and got a bit lazy with my final part of the research and stupidly used wikipedia -.- I plan to go back and try to find some more credible sources to back the particular piece up):

The Patriot Act:
A dangerous or necessary encroachment upon our freedom


I. Introduction
Freedom or Security; it is a question of great importance in the history of our country and with its future as well. One of the founding fathers, Benjamin Franklin, mused that those who would give up their freedoms for the illusion of security deserve neither (Rourke 2005). However, time and time again in our nations history we have found moments when some of our most prominent and respected presidents have found a need to decrease the liberty of its citizens to assure the longevity of such levity for the current and future generations. Indeed, it can even be said that the public itself teeter totters between these two distinct ideals, verging towards supporting increased security in times closer to great threats to our freedom while returning to the desire for freedom as we move farther from those threats (CNN/Gallop/ USA Today 2005). Dr. Roger Golden states that “Freedom and security may be viewed on a continuum, with the assumption that, as one is increased, the other may decrease” (2004). It is the questioning of the two sides of this continuum, as Dr. Golden describes it, which is at the core of the issues with the USA PATRIOT Act.

The “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act”, or USA PATRIOT Act (hereafter referred to as “Patriot”), came into law only a month after the tragic events of September 11th, 2001 (USA PATRIOT Act 2001). It was evident that, at least at that given time in history, the United States Congress believed that security at the expense of freedom was worth it in light of the horrific attacks. Ninety-eight votes in the Senate and three-hundred and fifty-seven in the House were cast in favor of the acts with only one and sixty-six cast against it in each house of congress respectively (DOJ 2001). While some to this day still believe that Patriot’s biggest mistake of “its Orwellian name” others have begun to heavily question the lengths in which it removes our civil liberties in the name of security (Yoo 2003). After five years on the books, and numerous revisions and new votes, the question must be asked; does the reduction of our civil liberties, and the danger of abused such a reduction imposes, caused by the USA PATRIOT Act overshadow and outweigh the necessity and use of the tools the legislation gives law enforcement to better protect the citizens and freedoms of the United States?

It is my belief that due to the changing technology of the world over the past decades, and the way in which terrorist organizations function in the modern day, the changes made by this land mark act are essential for the protection of our countries and the ideals it holds during this current crisis. As well, in light of the numerous checks and balances still in place even after Patriot, combined with a study of historical trends of other legislation enacted in the name of security at the risk of liberties, and finally with the general climate of politics and media of our country that surrounds it, I believe the likelihood of rampant abuse or the slide to totalitarianism is innumerably small. However, despite these beliefs critics of Patriot will still continue to desire for its revocation and eradication from the books immediately despite the aid it may levy upon those of our country that defend us. Through a in depth look at that which led up to the passage of this bill, the supposed “troubled” parts of Patriot, and the historical and current atmosphere in regards to legislation dealing with security over freedom, I will show that my belief is correct.

 

[Zyphlin]

II. Anti-Terrorist Legislative History
Before looking at the legislation predating Patriot, we must first take a look at the most core piece of legal doctrine we have within our country: The United States Constitution. At the very beginning of the Constitution, within the preamble, we can already see that security and freedom were both present on the mines of the forefathers:

“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America” (U.S. Constitution preamble).
​

As we continue through the Constitution, we continue to see this fact. Within Article I, Section 8, the drafters gave the country the ability to raise an armed forces to protect us, and Article II, Section 2, explains the notion of the Presidents executive power as Commander-in-Chief (U.S. Constitution). However, each of the first ten amendments, fittingly known as “the bill of rights”, focuses on bestowing rights and freedom’s upon the citizenry of our country (U.S. Constituion). It is through this most early of doctrines for our country that all the legislation that follows gains its roots.

In the 1960’s a man by the name of Katz was found transmitting information relating to gambling to clients within a number of states through the use of a public phone (Katz v. U.S., 1967). Federal agents, seeking to bring a stop to the man, attached a device to the payphone to allow them to eavesdrop upon his conversations (Katz v. U.S. 1967). Katz argued that his fourth amendment rights had been violated due to an illegal seizure of his conversations by the government (Katz v. U.S. 1967). His case, Katz v. United States, was the catalyst for the first major legislation that we must look at to better understand the legislative ground Patriot grew from: Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Rackow 2002) Through Katz, it was established by the court that interception of a persons phone calls by the government would require a warrant or be found unconstitutional due to a “seizing” of their conversation illegally (Rackow 2002). With a majority opinion handed down by the court in regards to the government’s ability to monitor its citizens the Congress enacted Title III to give a detailed account of how government officials should go about securing and utilizing wiretapping and other forms of warranted surveillance (Rackow 2002). Title III states that to protect “the privacy of innocent persons, the interception of wire or oral communications…should be allowed only when authorized by a competent jurisdiction and should remain under control and supervision of the authorizing court…” (Omnibus Crime Control and Safe Streets Act 1968) As well, an integral part of Title III that is altered and modified by later legislation is the fact that to obtain such authorization a government official must prove to a judge that there is probable cause that a crime has been, or is soon to be, committed (Rackow 2002).

An interesting footnote was left upon Katz by Justice White, basically indicating the President should not be required to follow this same necessity if it is in the interest of national security and he deems the surveillance necessary (Rackow 2002). Along with this footnote, the wide reaching Title III made it evident that it was not a means in which to limit the long accepted ability of the executive in the matters of foreign intelligence surveillance (Rackow 2002). This was affirmed in a number of court cases that challenged Title III, including Chagnon v. Bell that reached the D.C. Circuit Court but went no further (Rackow 2002). Within their opinion the court made the following statement in regards to the executive’s surveillance powers:

"Every president since Franklin D. Roosevelt has claimed the 'inherent' constitutional power to authorize warrantless surveillance in cases vitally affecting the national security. Furthermore, all presidents to hold office since Katz was decided have advocated a broad exception to the warrant requirements for surveillance targeted at agents of foreign governments." (Chagnon v. Bell 1980)​

While Patriot does altar the warrant requirements under Title III for domestic use, it also has roots in foreign intelligence gathering. At the time of Katz the Supreme Court, lower courts, and congress seemed to believe that while there was a need to secure the freedoms and liberty of domestic criminals, the President had carte blanche in regards to foreign intelligence in the names of security. However ten years later this belief would change and we would see a continued shift towards freedom above security.

The Foreign Intelligence Surveillance Act (FISA) came about in 1978 after six years of being bounced around the houses of Congress (Bertot, Jaeger, and McClure 2003). It was given birth in 1972, when the American public possibly could “no longer be shocked by the abuses of power” perpetrated by their government due to instances like Watergate, one of the most notorious political scandals in our countries history, in which it was found that members of the CIA and FBI were ordered by President Nixon to eavesdrop upon the Democratic National committee’s offices (Okpaku and Schulman 1974). Along with Watergate, the nations “revelations of extensive surveillance of United States citizens by the FBI”, such as those against Vietnam War protesters and civil rights activists, including Martin Luther King Jr., caused a public outcry for reform of executive enabled surveillance (Osher 2002). FISA was to “provide a ‘firewall’” between the collecting of information from foreign sources and the gathering of such information from those sources which are domestic (Osher 2002).

FISA set forth requirements that the executive branch had to comply with to be able to authorize warrants, even in the name of national security (Bertot, Jaeger, and McClure 2003). It established that probable cause must be shown in regards to surveillance of citizens no matter the reasons for such observation (Bertot, Jaeger, and McClure 2003). It also restricted the warrantless wiretapping of foreign powers or agents of such, but did allow for warrants to be had with a much reduced burden of proof, needing to only show that the primary purpose of such an investigation was for national security reasons (Bertot, Jaeger, and McClure 2003). In regards to FISA a “foreign power” can include foreign governments or factions of foreign nations, groups whose actions are dictated by foreign governments, a substantially non-U.S. citizen political organization of a foreign land, or international terrorist organizations (FISA 1978). As well, a foreign agent is a non-United States Person who engages in clandestine intelligence activities, or acts as an “officer, employee, or member”, for one of the aforementioned foreign powers (Rackow 2002). To allow for the secrecy needed for such important warrants, and to reduce the overhead placed upon the courts, the Foreign Intelligence Surveillance Court (FISC) was created and given jurisdiction over such warrants (Bertot, Jaeger, and McClure 2003).

The final piece of legislation that must be examined to understand the ramifications of Patriot and its changes is not so much law itself, but the application of such law. Know generally as the “wall”, it found its roots in the interpretation of certain parts of the FISA law by later administrations (FISC Case No. 02-001 2002). The “wall” called for intelligence agencies, local and federal law enforcement, the military, and federal prosecutors to be unable to share certain information gathered through national security investigations (Burlingame 2006). This general stance was rooted in the statement within the FISA law that warrants issued under it had to have the “primary” purpose be for national security investigations and due to this statement it was reasoned that information gathered from such investigations could and should not be allowed to enter into any realm of law enforcement outside of its particular investigation (FISC Case No. 02-001 2002). While the inception of the “wall” came about during the Carter administration it was during the tenure of Deputy Attorney General Jamie Gorelick, under President Bill Clinton, that the “wall” increased the most in strength (Ryan 2005). This strengthening can best be shown through a memorandum put out by her office the Deputy Attorney General stated:

“Because the counterintelligence investigation will involve the use of surveillance techniques authorized under the Foreign Intelligence Surveillance Act (FISA) against targets that, in some instances, had been subject to surveillance under Title III, and because it will involve some of the same sources and targets as the criminal investigations, we believe that it is prudent to establish a set of instructions that will clearly separate the counterintelligence investigation from the more limited, but continued, criminal investigations.” (Gorelick 1995, 2)​

Due to the strengthening of this “wall” it was believed that a number of the attackers in 9/11 were able to operate relatively unhampered despite the knowledge of their presence and possible hand in past terrorist attacks by a group known as “Able Danger”, a military special task force (Ryan 2005). Title III and FISA marked steps towards protecting more freedoms at the expense of security; the “wall”, its application, and its possible role in hampering the governments ability to prevent 9/11, paved way for a shift in the direction of the scale.

 

[Zyphlin]

III. Terrorist Atmosphere Prior to Patriot

Patriot did not simply come about due to the whims and desires of a select few politicians. It offered up a sweeping change from the freedom focused legislation of surveillance in past, focusing more on security at the expense of some civil liberties. Chief Justice Rehnquist noted in 1998 that for such a large shift to occur something the magnitude of a national crisis would need to occur to move the balance from legislation focusing on civil liberated to legislation that increased the “government’s ability to deal with the conditions that threaten national well-being” (Golden 2004, 14). Such an event occurred on September 11th, 2001; however, this was the last of a string of events that brought the pendulum of freedom and security swinging back to the direction of security.

The first of such attacks came nearly a decade before, but at the same location, as 9/11 (Congressional Record 1993). In 1993 a bomb hidden in a van was set off within a an underground garage of the World Trade Center in New York City (Congressional Record). The blast from this explosion rocked the foundation of the building and killed six people while wounding another thousand (Murphy 2002). This blast was reportedly perpetrated by members of the terrorist organization Al-Qaeda (Murphy 2002).

In 1996 a bombing was perpetrated against a military housing complex within Saudi Arabia (Murphy 2002). The blast killed just fewer than twenty American servicemen and women as well as injuring nearly four-hundred other people (Murphy 2002). This blast was reportedly perpetrated by members of the terrorist organization Al-Qaeda (Murphy 2002).

In 1998 bombs were set off in United States embassies in two different countries: Tanzania and Kenya (Murphy 2002). Much as the death and injured count rose in 1996’s bombing, so to did it raise further in 1998 with two-hundred and twenty four dead and close to 5,000 people injured between the two bombings (Murphy 2002). This blast was reportedly perpetrated by members of the terrorist organization Al-Qaeda (Murphy 2002).

In 2000 a slightly different attack occurred. Instead of an attack upon a physical building terrorists struck against a naval vessel, using explosives against the U.S.S. Cole (Murphy 2002). Seventeen sailors were killed with another thirty-nine wounded, once more reportedly perpetrated by members of the Al-Qaeda terrorist network (Murphy 2002).

Finally, in 2001, Al-Qaeda continued its trend of increasing totals in regards to terrorist attacks against United States buildings, once more with the World Trade Center within their crosshairs (Murphy 2002). On September 11th, 2001, nineteen Al-Qaeda operatives commandeered a number of American aircraft (Murphy 2002). A number of these men, including reputed leader Mohamed Atta, were perceived threats and known likely accomplices to the earlier 1993 bombing of the World Trade Center but had been able to evade coordinated surveillance against them due to the “wall” (Ryan 2005). Five hijackers, including Atta, aboard American Airlines Flight 11 drove the plane into the north tower of the World Trade Center at 8:48 A.M. (Murphy 2002). Fifteen minutes later five more hijackers, aboard United Airlines Flight 175, crashed into the south tower (Murphy 2002). Death counts at the end of 2001 placed over 3,000 dead between the two planes and those within the tower with countless amount of people injured (Murphy 2002). Thirty-six minutes later American Airlines Flight 77, controlled now by five more terrorist agents, connected with the pentagon bringing the death count to roughly 3,250 (Murphy 2002). Thirty-one minutes later, reportedly due to a revolt against the four terrorists that took over their plane, United Airlines Flight 93 crashed down in Pennsylvania with no survivors bringing the final estimated total for these devastating attacks to 3,300 people, more than ten times the number of dead in the previous attacks combined and more than half those injured in 1998 alone (Murphy 2002).

The details of these attacks, especially those on September 11th, are important ones to remember and while the information found within is miniscule in comparison to the full accounts of the events, the point is very clear. In an hour and twenty-two minutes over 3,000 American’s were killed with multiple thousands wounded, the heart of our military was struck, and two buildings that arguably were symbols of our country were demolished (Murphy 2002). All of this was perpetrated by men who may have been secured prior to this if not for the handcuffs placed upon the government by past laws (Ryan 2005). The citizenship of the country was whipped into a frenzy and the stage was set for Patriot’s introduction.

 

[Zyphlin]

IV. USA PATRIOT Act: An Introduction
With a proper examination of the past legislation, along with the atmosphere that pushed forward Patriot, one must take an in depth look of the act itself. To do such, in the premise of this paper, an acceptance must be made; the PATRIOT Act does diminish some civil liberties of American citizens. To approach Patriot as if it does not expunge itself upon the freedoms we have held dear and have become accustomed to is to look at it with a blind and uncritical eye. Instead, one must weigh the possibility of abuse done to innocent citizens due to the loss of those civil liberties and the likelihood that such liberties will be forever taken from us against the possible protection Patriot can give us. In a more blunt understanding of this question; would the three thousand dead in September 11th have more rights under Patriot then they currently do due to our failure to secure their safety?

With that premise stated and established, one must then look to the parts of Patriot that are most considered intrusive and harbor the most potential to be abused. Even detractors of Patriot, like democratic Senator Russell Feingold who stated that 90% of the original USA PATRIOT Act was a sound bill, acknowledge that much of Patriot is needed legislation (Hudson 2003). Since the time of that statement Patriot has been edited a number of times, including the most recent ones occurring March 2nd in the Senate and March 7th in the House (World News Digest 2006a, 2006b). In light of this the focus of this section will be upon a specific few sections: 204 (voice mail), 206 (roving wiretaps), 213 (sneak and peak), 214 (loosening FISA), 215 (records), 216 (pen registers), 219 (one jurisdiction), 505 (national security letters), 802 (domestic terrorism) (USA PATRIOT Act 2001). The main purpose of sections 204, 206, 214 and 216 interconnect and as such they will be taken together first focusing on electronic surveillance. Section 213, 215, 219 and 505 coincide together in matters of searches and warrants. Finally, section 802 will be taken on its own.

 

[Zyphlin]

V. Electronic Surveillance
The late twentieth and early twenty-first centuries has seen a number of vast changes in regards to technology. It had been over two decades since the last “major” surveillance act, FISA, was passed. In that time we gave witness to the birth of the internet and the age of electronics; text messaging, voice mails, cell phones, email, and other such things that are every day words to those living today were more apt for books like “Neuromancer” or stories published by Isaac Asimov prior during the early years of FISA. As such, much of Patriot is simply bringing those old statutes up to speed with the twenty-first century. However to do such meant that such means of communication that were once protected simply because they did not fit into the textual language of the old laws had to be codified and opened to scrutiny, which gives the impression of loss of liberty and causes worry on the part of some (EPIC 2005). Section 204 is one such section that has some taking notice (EPIC 2005). 204 is a very simple provision whose key feature changes a part of Title III to “wire, oral, and electronic” instead of simply “wire and oral” (USA PATRIOT Act 2001). Due to this, voice mails and emails can be obtained with a search warrant (EPIC 2005). Before this, to recover stored voice mails would require the government officials to wire tap a phone in which a person recovers his voice mails from and hope to hear the voice mails in question (EPIC 2005).

Of much more heated discussion is section 206, known as the “roving wiretap” section by many (EPIC 2005). As explained by a Congressional Resource Services report, 206 allows for roving surveillance pursuant to a court finding that the target is likely to “thwart identification with particularity” and as such omits “the identification of the particular instrument, facilities, or places where the surveillance is to occur” (Doyle 2002). In more basic terms, this allows for the government to attain a warrant not for a specific device but for a specific person. With such a warrant an official could place electronic surveillance on a pay phone that had been found to routinely be used by the suspect or the computers in a library they visit often. This was believed to be a needed addition due to the time it would take to attain new warrants each time a suspect would change their typical habits to try and thwart surveillance attempts and also due to the nature of public libraries (Keefer 2006). Shortly after 9/11 FBI officials reported the finding of numerous email conversations from a month to two months before the attacks by checking libraries where it the hijackers apparently put the public computers to use in communicating with their superiors and accomplices (Campbell 2001). Another reason for this is the finding that the internet has became one of the greatest tools for a terrorist and the use of it in public places further reduced their risk as they could go from one public computer located within a library or cyber café to another each different day (Conway 2005)

Still, critics of the act fear its possible misuse (EPIC 2005). While it is a higher burden of proof than a normal surveillance warrant it did cause reduction from old law, allowing officials to show that the actions of the target have the affect of circumventing detection without having to actually prove that that is their intent (USA PATRIOT Act 2001). Some find that such “generic” application of surveillance forces numerous innocent citizens to be put in the position to possibly have their conversations wrongfully caught through these means (EPIC 2005). However, Patriot makes no changes to the fact information gleamed from these warrants may only be used in conjunction with the person that it was assigned too (Keefer 2006). As well, as of the most recent vote upon Patriot in March, 206’s burden of proof to attain such a warrant has increased and new congressional reporting methods have been put in place to secure the checks and balances of our government (Keefer 2006). As well a sunset was placed upon it, setting a date in four years for the provision to be voted on once more, assuring its finality is not guaranteed (Keefer 2006).

Finally, 214 and 216 will be looked at in conjunction as they both deal with a very specific form of electronic surveillance: pen registers and trap and trace devices (USA PATRIOT Act 2001). A pen register is a “device that registers the numbers dialed from a telephone” (EPIC 2005). A trap and trace device original was one that records the originating phone numbers of all calls to a particular phone line (EPIC 2005). Patriot’s section 216 changed it instead to be “a device or process which captures the incoming electronic or other impulses which identify the originating number or other dialing, routing, addressing, and signaling information reasonably likely to identify the source or a wire or electronic communication” (EPIC 2005). As well, the language change done by section 216 allows for electronic versions of pen registers and trap and trace devices to be used to gather electronic mail, web surfing, or text messaging (EPIC 2005). Much like section 204, section 216 brings the law codes up to speed with the modern times of electronic communication (USA PATRIOT Act 2001). Also like section 204, doing such removes the protection afforded to such communications due to the loophole of the law which causes people to cry foul on civil liberties (EPIC 2005). A final change made by section 216 also allows for officials to put pen register and trap and trace devices to use anywhere in the United States once the warrant for their use is obtained (Henderson 2002). Section 214 goes a step farther however, removing the “foreign power” clause mentioned earlier under the FISA laws (EPIC 2005). These types of devices can now be used in any “investigation to gather foreign intelligence information” (EPIC 2005). Naturally, this brings alarm to some as it begins to break down the hypothetical “firewall” that the FISA court placed between domestic and foreign agents (Osher 2002). While it does now open these devices to citizens in regards to national security interests it is explicitly to use such pen registers under FISA, which Patriot simply alters in this regard, in investigations where the core reason for the investigation is “solely on the basis of activities protected by the First Amendment” (EPIC 2005).

These sections allow the government to fully move into our century. While they remove the protections that have been afforded electronic communications for many years, they do so with good cause and sound evidence. Simply because old law does not cover a new invention does not make that invention exempt from being brought under the umbrella of laws that apply to other items related to it.

 

[Zyphlin]

VI. Searches, Seizures, and Warrants
The changes made to the way in which the government conducts search and seizures have been two of the most controversial parts of Patriot, most namely sections 213 and 215 (ACLU 2003). Section 505 is very akin to the others but has gotten much less mainstream press, while still undergoing changes in the most recent incarnation of Patriot voted upon (Keefer 2006). Of the four sections that reached my notice, 219 seemed to be the least controversial and yet one that made good sense.

Section 219 states that “an investigation of domestic terrorism or international terrorism” a Federal magistrate judge can issue search warrants for property or person within or outside of their district if terrorist actions relating to the subject of the search was perpetrated within their district (USA PATRIOT Act). This allows for a much more affective and quick search in regards to terrorism suspects to lessen the impact they may have. Critics of the provision claim that it hampers the subject’s ability to object legally to the warrant because of the distance (EPIC 2005). Despite this fact, it does not get as much notice as its other search, seizure, and warrant sections as it is a narrowly tailored provision applying only to investigations of “domestic or international terrorism” (EPIC 2005).

Section 213 is known as the “sneak and peak” provision (ACLU 2003). Requiring a court order and only able to be applied when “the court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result”, section 213 is still highly contested by opponents of the Act (USA PATRIOT Act 2001). It allows for the government to enter a premises and conduct a typical search, with the extra caveat that it can be done in secret and without notification of the person being searched (EPIC 2005). While seemingly controversial, Rich Lowry of National Review Online notes that “such searches already existed prior to the passage of the Patriot Act, and the Supreme Court has upheld their constitutionality” (Lowry 2003). Within his article he points out that within the first two years of Patriot the delayed search warrants were issued nearly fifty times with the average delay in notification being a week (Lowry 2003). Opponents of the bill, such as the ACLU, take issue with the fact that it removes the “agent of a foreign power” clause of the FISA bill, allowing the provision to be applied to any citizen now for any type of crime (ACLU 2003). A commentator from MSNBC summed up some of the oppositions distaste for section 213:

“[t]hese so-called ‘sneak and peek’ provisions treat the Fourth Amendment protections as if they were written in pencil, easily erased and malleable, tied to the crisis-of-the-day level of paranoia.” (Osher 2002, 13).​

Former Republican Representative of Georgia Bob Barr stated in front of congress in 2003 stating that section 213 “Greases the slippery slope that was clearly anticipated, but specifically addressed and avoided by the drafters of our constitution in the threefold” (2003). Due to these criticisms, work has been made in recent months to smooth out some of the larger issues of 213. The original vague timeline of “reasonable time” has been extended to give a maximum of thirty days unless the issuing court explicatively gives approval of it lasting longer. As well, unlike in past iterations of Patriot, 213 has been given a four year sunset clause like many of its other more questionable sections.

Of all the sections within Patriot few have garnered as much notoriety and scrutiny then section 215, or the “Attack of the Angry Librarians” as noted by Slate Online’s “Guide to the Patriot Act” (Lithwick and Turner 2003). A better explanation of the section would be the “any tangible things” or “records” section (EPIC 2005). In essence the section allows the government to request an order to obtain anything defined as a “tangible thing”…books, records of numerous kinds, papers, documents, email lists, chat lots, etc…as long as it relevant to an investigation of terrorism or other kinds of clandestine intelligence actions (EPIC 2005). Detractors of the bill such as the ACLU point out that while it is labeled as “Access to Business Records…” it actually allows for a wide range of items that can be requested under the section from the membership lists of religion organizations to your credit report (ACLU 2003). Despite the detractors the administration has remained a staunch supporter of 213 (DOJ 2003). Deputy Attorney General James Comey, during 2004 testimony before congress, highlighted the reason the Department of Justice found section 215 so important:

“[it] allows the Foreign Intelligence Surveillance Court to order production of business records. Under long standing authority, grand juries have issued subpoenas to many varieties of businesses, including libraries and bookstores, for records relevant to criminal inquiries. The USA PATRIOT Act authorized the FISA court (or a designated magistrate) to issue similar orders in national security investigations.” (2004).​

He goes on to make a point that while these orders can be issued to bookstores and libraries that the act in no way singles them out or highlights them specifically to receive such treatment (Comey 2004). The Conference Report, which was the piece of legislation that was signed onto Patriot recently that made the most recent changes mentioned in this paper, also edited section 215 to address its larger concerns as well (Keefer 2006). To begin, it causes officials to show a more direct relevance to an authorized investigation before it is issued to the FISC (Keefer 2006). As well, it explicitly states the rights of the recipient of a section 215 order in regards to their abilities to consult an attorney (Keefer 2006). Finally, it makes two other useful changes and additions; it now provides greater protection of library, medical, and other sensitive records but requiring the approval of specific high ranking officials and, like the other, it places a sunset in four years upon the provision (Keefer 2006). Unlike the other sections however, section 215 was altered not just by the Conference Report in March but a second bit of add-on legislation as well. It added another explicit right to the recipients of this type of order, allowing them to challenge one of the sections more controversial caveats, the non-disclosure of the seizure (Keefer 2006).

The final search, seizure, and warrant section of note is 505 which involve national security letters (NSL’s) (USA PATRIOT Act 2001). In essence, NSL’s are administrative subpoenas, allowing the government to issue them to secure a number of items (Barr 2003) The cousin to the “records” provision, section 505 also allows for retrieval of specific types of information. While it did not gather as much attention as its related section, it did still have some issues that needed to be addressed. The most recent additions to the act have done such. One issue was the requirement of the recipient to report to the FBI if they disclosed the NSL to any attorney, and which attorney it was they disclosed it to (Keefer 2006). This requirement has now been stripped away from Patriot. It goes on to explicitly eliminate libraries from a possible target of NSL’s while also requiring public reporting of the number of NSL’s used each year (Keefer 2006).

 

[Zyphlin]

VII. Domestic Terrorism
While it is not nearly as wide known as the other sections examined in this paper, section 802 has perhaps the largest potential for abuse. Section 802 defines a new sort of terrorism known as “domestic terrorism” that would fall under all typical terrorist guidelines (USA PATRIOT Act 2001). Domestic terrorism is now defined as activities that:

“`(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;
`(B) appear to be intended--
`(i) to intimidate or coerce a civilian population;
`(ii) to influence the policy of a government by intimidation or coercion; or
`(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
`(C) occur primarily within the territorial jurisdiction of the United States.'.” (USA PATRIOT Act 2001).​

The reason this has became an issue is, as Bob Barr puts it, “if this, or indeed any future administration were so inclined, it could use the USA PATRIOT Act to prosecute protesters as terrorists when any reasonable person would view that as excessive” (Barr 2003). Critics fear that a corrupt leader using the power to go after environmentalists or anti-abortion protesters much like the government used their powers to hamper members of the civil rights movement (Lithwick and Turner 2003). However since its inception in 2001 there have been no widely publicized accounts of misuse of section 802.

 

[Zyphlin]

VIII. History, Media, and Politics
Finally a look at three key factors to show why rampant abuse and continued removal of civil liberties is unlike to occur: history, the media, and politics. Each of these three play a key factor in protecting us from a government that goes out of control. As such, a deeper look and understanding of each will join with what has already been stated to thoroughly illuminate what is likely to occur in Patriot’s future.

First a look upon the history of other acts perpetrated in the name of security and their lasting, or lack there of, effects. The first such act is one perpetrated by one of the “most esteemed” and one of the most famous Presidents our country has seen, Abraham Lincoln (Encyclopedia Americana 2006). During the civil war Lincoln suspended one of the oldest common law traditions still present in America, the writ of habeas corpus (Greenberg 2001). By suspending the writ, he allowed for his generals to arrest and detain anyone without the need for a trial simply if they were threatening the “public safety” (Greenberg 2001).With the country engulfed in civil war Lincoln saw that a choice has to be made between securing the country through extreme action, arguably more extreme than anything enacted by Patriot, and he judged in favor of security (Greenberg 2001). His actions were highly contested, but in the end they were upheld and as the safety of the country warranted the writ of habeas corpus was returned to its unsuspended state once more. Justice Rehnquist, in an interview with PBS, was asked his opinion of the suspension. During it he stated that he “would have agreed with his view as to suspending the writ of habeas corpus, I think, because that seemed to be a real threat to the Union” (Rehnquist 1998). He goes onto acknowledge that freedom was still needed, but at times you must act in the interest of security when it is prudent (Rehnquist 1998).

The next example is one performed by the President who held his office longer than any before him, Franklin Roosevelt. Unlike the PATRIOT Act, and even Lincoln’s suspension of the writ of habeas corpus, it is hard to truly completely justify FDR’s internment of Japanese American’s, along with Germans and Italians as well, into camps during World War II (Ross and Siasoco 2006).. Much as the two previously stated instances, Executive Order 9066 was initiated due to security (Ross and Siasoco 2006). Two years later the camps were closed, and forty six years later the legislature of America formally apologized to those Japanese that were interned, though no formal apologizes have been given to Italians or Germans (Ross and Siasoco 2006). While this horrible act of security over freedom is a blemish upon the United States, it does show, like Lincoln’s suspension, that while there are instances where our country veers greatly to security at the expense of freedom that in time the current of public opinion and world events causes it to shift back to the side of freedom.

A final historical view of the ebb and flow of legislation involving freedom vs. security can be extrapolated from the information gleamed in section II of this paper. Title III came about as a shift towards freedom began. However, even during that shift towards freedom, it made actions to affirm the rights of security as well in regards to the executive. FISA furthered that shift towards freedom over security, further codifying things. Much as the Civil War and World War II instigated shifts, so too did the attacks on September 11th. As John Yoo of the American Enterprise Institute explains:

“Civil liberties throughout our history have always expanded in peacetime and contracted during emergencies. During the Civil War, the two world wars, and the Cold War, Congress and the president restricted civil liberties, and courts deferred; during peacetime, civil liberties expanded.” (2003).​

Patriot gained the benefit of coming long after some of the past changes in the historical swing of freedom and security. While it does tread upon civil liberties it does so in a much smaller scale than its war time predecessors while giving tangible tools to those trying to secure our freedoms in the future. Due to the history of such legislation, Patriot will likely find some of its more controversial parts that were placed into it for the purpose of national security fading away as the War on Terror moves closer to a conclusion.

The second issue protecting the public from abuse or gross misuse of Patriot is the media. With the advent of the 24/7 news stations and the internet more media and information is accessible to people now than ever before. As such, more news must be generated to fill such potential. One popular culture site is an excellent yard stick for such things. Wikipedia is a site that allows for the addition of information by the public to any particular topic, which then is reviewed for accuracy, and if it checks is left to be there (Wikipedia 2006a). In regards to this particular instance, such a site is a useful tool to see what has stuck into the public’s mine or more pointedly, into the mind of popular culture. The amount of political scandals that have gained at least a moderate amount of media circulation from 2000 till 2006 already makes up for one third of the amount noted form 1975-1999 (Wikipedia 2006b). As well, the majority of the scandals between the years of 1975 and 1999 occurred during the 1990’s as the media boom began (Wikipedia 2006b). The recent media frenzies range from heavily guarded things as “black site” CIA prisons to reporting on scandals perpetrated by the media itself such as “Memogate”, which deals with the reporting of falsified documents by Dan Rather (Moran 2006; Gay 2006). With this heightened amount of media coverage and great competition to break the next big story anything beyond a minor misuse of Patriot legislation is likely to make its way into the news and into the minds of the public, causing public opinion to usher in new change.

Public opinion moves on to tie in closely with the final point of prevention, politics. To begin the public is still protected through all the traditional political means from misuse of Patriot by the current or future administrations. As noted earlier, many of the most questionable guidelines are set to sunset in four years, allowing for congressional revue, while others include reports to congress as well (Keefer 2006). Along with congressional protection, the courts provide a measure of protection alongside the legislative branch. While the burden of proof has been reduced in some cases compared to past law, the majority of Patriot’s provisions still require judicial clearance (EPIC 2005). Beyond that however, our country has not been as divided as it is in our current political climate in a number of years if ever. The elections of 2000 were separated by 550,000 votes which do not even make up a percentile worth of the population (CNN 2000). The 2004 elections were not much wider, with Bush being reelected with a 3% margin (CNN 2004). A study by Darren Davis and Brain Silver in 2004 showed that there are a number of areas that the public is either split closely in regards to freedom and security, such as teachers criticizing antiterrorist policies and detainment of non-citizens indefinitely, or are strongly in favor of civil liberties above security, such as investigating protesters (David and Silver 2004). Should Patriot ever become such a hot button issue that the large majority of the public wish to see it gone then support for such an initiative is likely to garner support from politicians so as to take advantage of one of the few polarizing issues on the table.

 

[Zyphlin]

IX. Conclusion
There is no question that in some ways the USA PATRIOT Act infringes upon the civil liberties of American’s. Nor should there be a question that through our past legislature we allowed ourselves to become vulnerable and our security was breached not only on September 11th, but a number of times before then as well. Senator Orin Hatch, in an article in the defense of the Patriot Act, made this statement:

“The tragic events of Sept. 11, 2001 — and the killing of more than 3,000 Americans — are forever etched in our nation's memory.” (Hatch 2003).​

It is my hope that he is correct in this assumption. The attacks on September 11th are likely to become the defining moment of a generation and it showed that freedoms alone do not secure a country. While the American people should never willingly forfeit their most cherished of rights without cause or recourse, neither should we be unwilling to sacrifice a small portion of those liberties for short periods, in respect to the greater scale of our countries history, to secure and maintain those that we temporarily put in the trusting of our government along with the majority that we have been able to retain. Our governmental structure and society allows for the protection against a prolonged and unnecessary removal of our civil liberties. As such, it is reasonable to give up a small amount of freedom to allow the government to put to use the legislation in Patriot, for the duration of our heightened need for security, to assure that another 3,000 innocent men and women do not lose all of their freedoms in a single moment of time.

 

[Zyphlin]

Bibliography

ACLU . 2003. “ACLU Says Justice Dept.'s PATRIOT Act Website Creates New Myths About
Controversial Law” http://www.wisc.edu/writing/Handbook/DocAPSA_RefList_Article.html

Barr, Bob. 2003. “Testimony during hearings on ‘America after 9/11: Freedom Preserved or
Freedom Lost?’ before the U.S. Senate Committee on the Judiciary.” Quoted in Rourke,
John “You Decide!” (Pearsons Education, Inc., 2005).

Bertot, John. Jaeger, Paul. Mcclure, Charles. 2003. “The Impact of the USA Patriot Act on
collection and analysis of personal information under the Foreign Intelligence
Surveillance Act” Government Information Quarterly 20: 295-314

Burlingame, Debra. 2006. “Our Right to Security” Wall Street Journal. January 30.

Campbell, Duncan. 2001. “How the Terror Trail Went Unseen”. Telepolis. August 10.
http://www.heise.de/tp/r4/artikel/9/9751/1.html

Chagnon v. Bell 1980 D.C. Cir. 642 F.2d 1248, 1266

CNN. 2000 “National Results” CNN.com. http://www.cnn.com/ELECTION/2000/results/

CNN 2004 “U.S. President” CNN.com: Election Results
http://www.cnn.com/ELECTION/2004/pages/results/president/

CNN/Gallop/USATODAY. 2005. “USA TODAY/CNN/Gallup Poll results.” USA Today.
May 20.

Comey, James B. 2004. “Testimony during hearings on ‘Preventing And Responding to Acts of
Terrorism: A review of Current Law’ before the U.S. Senate Committee on the
Judiciary.” Quoted in Rourke, John “You Decide!” (Pearsons Education, Inc., 2005).

Congressional Record. March 1993. 103 Cong., 1st sess. H1159

Conway, Maura. 2005. “Terrorist ‘Use’ Of the Internet and Fighting Back” Presented at the
conference Cybersafety: Safety and Security in a Networked World: Balancing Cyber
Rights and Responsibilities, Oxford Internet Institute, Oxford University.

Department of Justice, 2001. “Passed by Congress” Preserving Life and Liberty.
http://www.lifeandliberty.gov/subs/p_congress.htm

Department of Justice, 2003. “Dispelling the Myths” Preserving Life and Liberty.
http://www.lifeandliberty.gov/subs/u_myths.htm

Doyle, Charles. 2002. “Patriot Act: A Sketch” Congressional Report Service. April 18, 2002
Encyclopedia Americana. 2006. “Lincoln, Abraham” Scholastic Library Publishing, Inc.
http://ap.grolier.com/article?assetid=0247400-00

Electronic Privacy Information Center. 2005. “The USA PATRIOT Act”
http://www.epic.org/privacy/terrorism/usapatriot/

Foreign Intelligence Surveillance Court of Review. 2002. Case No. 02-002 September 9th.
http://www.fas.org/irp/agency/doj/fisa/fiscr111802.html

Gay, Verne. 2006. “Voices of a News Generation” Broadcasting Cable April 24th.
http://www.broadcastingcable.com/ar...d=311&industry=Special+Report&industryid=1025

Dr. Golden, Roger. 2004. “What Price Security? The USA Patriot Act and America’s Balance
between Freedom and Security,” Quoted in The Homeland Security Papers: Stemming
the Tide of Terror, eds. Michael W. Ritz, Ralph G. Hensley, Jr., and James c. Witmire.

Gorelick, Jamie. 1995. “Memorandum”
http://www.usdoj.gov/ag/testimony/2004/1995_gorelick_memo.pdf

Greenberg, David. 2001. “Lincoln’s Crackdown” Slate. November 30.
http://www.slate.com/id/2059132/

Hatch, Orin. 2003. “In Support of the Patriot Act” USA Today, 14 May 2003.

Henderson, Nathan C. 2002 “The PATRIOT Act’s Impact on the Government’s Ability to
Conduct Electronic Surveillance of Ongoing Domestic Communications.” Duke Law
Journal 52: 179-208.

Hudson, Audrey. 2003. “Senators join forces to roll back parts of Patriot Act.” The Washington
Times. http://www.washingtontimes.com/national/20031016-120041-3361r.htm

Katz v. United States 1967 389 U.S. 347

Keefer, Wendy. 2006. “The Patriot Act, Reauthorized” Jurist. March 9, 2006.
http://jurist.law.pitt.edu/forumy/2006/03/patriot-act-reauthorized.php

Lithwick, Dahlia. Turner, Julia. 2003. “A Guide to the Patriot Act” Slate. September 8th, 2003.

Lowry, Rich. 2003. “Patriot Hysteria” National Review Online. August 28, 2003.
http://www.nationalreview.com/lowry/lowry082803.asp

Moran, Rick. 2006. “Defend Dissent by Punishing the Leakers” The American Thinker April 24,
2006 http://www.nationalreview.com/lowry/lowry082803.asp


Murphy, Sean D. 2002. “Terrorist Attacks on World Trade Center and Pentagon.” The American
Journal of International Law 96: 237-255

Okpaku, Joseph. Schulman, Bonnie. 1974. “Who’s Who and What’s What in Watergate?”
Transition 45: 70-72+74.

Osher, Steven. 2002. “Privacy, computers and the Patriot Act: The Fourth Amendment isn’t dead,
but no one will insure it.” Florida Law Review, 54: 521-542.

Rackow, Sharon. 2002. “How the USA Patriot Act Will Permit Government Infringement upon
the Privacy of Americans in the Name of ‘Intelligence’ Investigations” University of
Pennsylvania Law Review Vol. 150, No.5: 1651-1696.

Rehnquist, William. 1998. “All The Laws But One” Online News Hour PBS. November 11,
1998. http://www.pbs.org/newshour/gergen/november98/gergen_11-11.html

Ross, Shmuel. Siasoco, Ricco. 2006. “Japanese Relocation Centers” Infoplease.
http://www.infoplease.com/spot/internment1.html

Rourke, John T. 2005 “You Decide!” Pearsons Education, inc.

Ryan, Thomas. 2005. “The Writing on ‘The Wall’” Frontpage Magazine.com. August 22, 2005
http://www.frontpagemag.com/Articles/ReadArticle.asp?ID=19218

U.S. Congress. Senate. 2001. “Uniting and Strengthening American by Providing Appropriate
Tools Required to intercept and Obstruct Terrorism Acts.” 107th Cong., 1st sess., H.R. 3162

United States Constitution.

Wikipedia. 2006. “Wikipedia” Wikipedia. http://en.wikipedia.org/wiki/Wikipedia

Wikipedia. 2006. “Political Scandals of the United States” Wikipedia.
http://en.wikipedia.org/wiki/Political_scandals_of_the_United_States

Yoo, John. 2003. “The Patriot Act under Fire” American Enterprise Institute for Public Policy
Research. December 23, 2003.
http://www.aei.org/publications/pubID.19661,filter./pub_detail.asp

 

[thenextbesthang]

I read most of your article.
Is it yours?
If so, not bad, not bad at all.

My responses:

- As it stands right now, we have a president who keeps a notoriously closed office. That is, he does not communicate that much with the American public - at least, not like clinton/roosevelt did (or something like that). Basically, this means that I do not trust Bush with my civil liberties. It is one thing to trust a man that you know has honor and you know is looking out for your best interest.

LEt me rattle off somethings that make me not think he has my best interest in hand:
- Promotes globalization - the dismantling of American industry, and putting our major industry in the hands of the chinese/japaneese. Although other presidents have done the same things, it happened a lot more under Bush than other presidents. Add onto this t hat the primary beneficiaries are the corporations.
- War in Iraq; it turns out that there are no WMDS in Iraq. Cheney knew about this, yet lied to us with Plamegate. I do not know if there is really an ulterior motive as to why we are in Iraq. (Oil? Revenge?)
- Increased the national debt more than any other president - we will never grow our way out of the debt we are in right now without raising taxes.
- 9/11 happened on his watch - did he know about it before hand? Did he orhestrate it? I do not know - he didn't answer in public and under oath during the 9/11 commission hearings, neither did cheney, so how should I know if he wasn't involved?

That's just a few things.

Now this is the head of the government that I am ceding my civil liberties to? Why should I trust them? Because they say that they are looking out for my best interest?

Let's take a look on the other side:
A total anti-war, a bush opposite man:

- No one says that we should not fight the war on terror. AS such, no one is truly anti-war. while they may dismantle guantanamo, they will still hunt for the terrorists in our border. ITs not a matter of whether or not they will oppress me - they definately will.

Times have changed. The war on terror is more ideaological yes. But people still remain people. Man was meant to live free with liberty - if man does not have liberty, how different is man from cattle?

Under this increase in government we are told what we can and cannot do, we are told that nothing we do is truly confidentital. I just do not want to live in a society like that.

Do not get me wrong - I am for finding those responsible for 9/11, and for preventing further attacks of that magnitude. But ONLY those responsible. I do not want to hear BS arguments of how 'arabic societies like those in syria' promote terrorism and must be dismantled for there to be freedom. That is bullsh1t. Arabic societies promote violence just as much as socities in compton do.

Essentially you say this: war on terror is worth fighting, and lives lost are not worth the additional civil liberties.

I say this: war on terror is worth fighting, and if lives are lost, you find those responsible, without losing civil liberties.

You wanna talk about WMDS in America, and how we must pre-empt their existence? Then i'll talk about improved scanning methods at ports, about new surveilance techniques that can detect car bombs and explosives, and ways to win in a hostage situation. Don't let WMDS proliferate - don't let the ex-soviet satelites drift and their nukes wander.

The point of a patriot act is to prevent people from acting like terrorists, by imposing a set of rules that destroys the way that humans were meant to live. ITs to fight a war on terror, and promote freedom. The trouble is, it will invaribly create more terror than it will stop.