Governance & InstitutionsTom Rockman, Jr.

Public Law Project:U.S. Patriot act & Civil liberties

Dr. Bob Gage12/09/03

Executive Summary

The 9/11 terrorist attacks will forever be etched in the collective consciousness of

the United States. After visiting the ruins at Ground Zero, President George W. Bush

channeled our united angst and found the inner conviction and fortitude to employ all

available resources to hunt down the perpetrators of the most horrendous crime in

American history.

9/11 was the catalyst for the U.S. Patriot Act. The Bush Administration charged

Attorney General John Ashcroft and the Justice Department with crafting a complex and

controversial bill that sought to identify, dismantle, disrupt, and punish terrorist

organizations in this country and internationally. During testimony before the House and

Senate Judiciary Committees, Ashcroft pressured the legislative bodies to expedite

passage of this landmark bill.

Acting as mediator in Congress, Sen. Patrick Leahy (D-VT) forged a compromise

bill acceptable to both Democrats and Republicans. The Bush Administration claimed

victory with the passage of a comprehensive 341-page bill that gives sweeping new

powers to the federal government including greater surveillance measures, a broader

definition of terrorism under the foreign intelligence (Title II) provision, and

unprecedented powers to detain aliens (Title IV) indefinitely.

Civil libertarians were quick to warn about the dangerous repercussions of the

U.S. Patriot Act. Constitutional scholars testified before Congress that during times of

crisis, there needs to be a balance between national security and civil liberties. And

Patriot Act proponents argued that the Act’s provisions are reasonable and necessary to

give law enforcement and intelligence agencies the required means to do their assigned

jobs—catching the terrorists.

So sit back. Relax. And let me guide you through that terrible fateful morning on

September 11, 2001, and then to the halls of Congress where both sides engage in heated

debate about the rushing-through of the Patriot Act, and then finally to an insightful

compare and contrast about the major civil liberties provisions of the U.S. Patriot Act.

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Background and Historical Data1

9/11 forever changed the way Americans viewed the world. Before 9/11, we

were a complacent society, feeling sort of invincible in the arena of world affairs.

Terrorism was something that most Americans felt disconnected from, comfortable

watching the escalating violence between the Israelis and Palestinians on the nightly

news. When we awoke on 9/11 to witness the real-time events of airplanes crashing into

the Twin Towers, we felt a sense of displaced reality and experienced a collective

vulnerability, fearfulness, confusion, sorrow, and disbelief.

Before 9/11, the defining moment of the World War II generation was the attack

on Pearl Harbor. For the Baby Boomers, the assassination of John F. Kennedy, Jr., was

their milestone. When Al Qaeda attacked the Twin Towers on that fateful morning, the

death of 3,000 innocent Americans and foreign nationals fused the American

consciousness, bringing us together in a dark moment in American history.

At that point, President Bush’s Administration was in its infancy. Bush

experienced an epiphany when he visited the disaster ruins and interacted with the rescue

workers, police officers, and fire fighters at Ground Zero. It was there that he channeled

our united angst and found the inner moral conviction to go after the perpetrators of this

horrendous crime.

1 This first page is pure opinion based on the author’s worldview or gestalt.

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Everybody in America knows our lives have changed. Whether the security checks and the changes in our airlines are effective or not, we know they are reality. We know travel is not as easy as it once was. We will be concerned about opening mail. We will worry when we hear sirens in the night. But we are not going to retreat into fortress America. We are going to remain a beacon of democracy to the rest of the world. Americans don’t run and hide. Americans face up, as we have, to adversaries, whether they are economic or wars or anything else. — Sen. Patrick Leahy (D-VT) speaking during the Senate debate on the U.S. Patriot Act.

9/11 was the catalyst for the U.S. Patriot Act2. Because of the sense of urgency

with the American public, this 342-page bill was place on “fast-track” status at the U.S.

Capitol, so that the Department of Justice and law enforcement officials would have the

required tools to catch, detain, and prosecute terrorist suspects (Ashcroft, 2001a).

In response to the attacks, Sen. Richard Durbin (D-IL) said that the “line of

demarcation is gone” between foreign intelligence and domestic security (Leahy, 2001).

And to protect America, Congress has to err on the side of caution, assuming that

everything falls under the rubric of foreign intelligence (Leahy, 2001). “The Fourth

Amendment does not apply here,” Durbin said.

At the urging of the Bush administration, the U.S. Patriot Act—otherwise known

as the “Uniting and Strengthening America by Providing Appropriate Tools Required to

Intercept and Obstruct Terrorism”—bill was rushed through both houses of Congress in a

record 40 days (Michaels, 2002). Normally, legislative drafting and congressional review

and approval of a statute so extensive would take weeks, even months. The complexity

of many of its sections makes it extremely doubtful that the Act could have been

originated, drafted, submitted, reviewed, and enacted all within 40 days (Michaels, 2002).

On Sept. 19, 2001, Attorney General John Ashcroft pushed Congress to pass

sweeping new law enforcement powers within a week’s time, which both Republicans

and Democrats quickly dismissed as unrealistic (CQ, 2001). Yet, the Bush

Administration rallied hard to get the Patriot Act passed quickly, but members in both

parties pressed for more prudent deliberation. Contributing to the frenzy, the FBI alerted

the nation that further terrorist attacks could be imminent (CQ, 2001).

2 To view the whole document, go to http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_cong_public_laws&docid=f:publ056.107.pdf.

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Five days later, Ashcroft appeared before the House Judiciary Committee and

characterized the current terrorism threat as a “clear and present danger” to the American

public (Ashcroft, 2001a). He emphatically urged the house members to make haste and

give the Justice Department the tools necessary to identify, dismantle, disrupt, and punish

terrorist organizations before they strike again (Ashcroft, 2001a):

The fight against terrorism is now the highest priority of the Department of Justice. As we do in each and every law enforcement mission we undertake, we are conducting this effort with a total commitment to protect the rights and privacy of all Americans and the Constitutional protections we hold dear.

Today, we seek to meet the challenge of terrorism within our borders and targeted at our friends and neighbors with the same careful regard for the Constitutional rights of Americans and respect for all human beings. Just as American rights and freedoms have been preserved throughout previous law enforcement campaigns, they must be preserved throughout the war on terrorism (Ashcroft, 2001a).

But opponents view this new war on terrorism as an excuse to bypass freedoms of

movement, freedoms of speech and press, privacy, and other civil rights (Michaels,

2002). This research paper will trace the major highlights of the U.S. Patriot Act through

Congress and will explore the criticisms that certain provisions of the Act infringe on

non-citizens’ basic human rights and could open the door to abuses of U.S. citizens’ civil

liberties.

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Legislative History

Rep. Jim Sensenbrenner, Jr., (R-WI) introduced the USA Patriot Act as HR 2975

in the U.S. House of Representatives along with the support of Reps. Conyers, Hyde,

Coble, Goodlatte, Jenkins, Jackson-Lee, Cannon, Meehan, Graham, Bachus, Wexler,

Hostettler, Keller, Issa, Hart, Flake, Schiff, Thomas, Goss, Rangel, Berman, and Lofgren

(Doyle, 2002). Sen. Tom Daschle (D-SD) introduced the anti-terrorism bill in the U.S.

Senate as S.1510 along with Senators Lott, Leahy, Hatch, Graham, Shelby, and Sarbanes

(Doyle, 2002).

The Senate Judiciary Committee held only one hearing on the Administration’s

proposed counter-terrorism legislation with Attorney General John Ashcroft as the only

witness (PFAW, 2002). Similarly, the House Judiciary Committee held limited hearings,

but reported a more inclusive bill (HR 2975) that tried to balance the national security

and civil liberties concerns that was a model of bipartisan cooperation (PFAW, 2002).

The U.S. Patriot Act took on several forms, in part because of a dispute in the

House where the Judiciary Committee strenuously marked up a consensus bill (HR 2975)

that was opposed by the White House (CQ, 2001). In pushing the original house bill,

Speaker J. Dennis Hastert (D-IL) quelled dissent from members on both the right and left

who warned that Ashcroft’s proposals could obstruct civil liberties (CQ, 2001).

The House opted out of calling a formal conference when it passed the bill, but

despite an agreement between the House and Senate leadership, the House leadership

promptly integrated the content of the Senate’s discussions into the new bill (Leahy,

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In this brave new world of terrorists, we must cripple this demonic network.— Rep. Marge Roukema (R-NJ)

2001). Concurrently, key lawmakers met with administration officials to resolve about a

dozen differences in private and then introduced a clean bill or HR 3162 (CQ, 2001).

What surprised and angered some lawmakers was the last-minute distribution of

the actual report to the House floor during the afternoon debate on October 23, 2001

(Sensenbrenner, 2001). Rep. Robert C. “Bobby” Scott (D-VA), also clearly frustrated,

said that the U.S. Patriot Act was being railroaded through Congress and that he would

have preferred to have more time to review the actual bill (Sensenbrenner, 2001).

Rep. Barney Frank (D-MA) severely criticized the House Republican leadership

for not allowing any amendment to the U.S. Patriot Act bill and called the Bush

Administration’s involvement with House procedural rules as “undemocratic” (Oxley,

2001). More than ever, Frank argued that the mechanisms of freedom needed to be run

freely for the world to see so that America could show its strength in a time of crisis

(Oxley, 2001).

Rep. Michael Oxley (R-Ohio) expressed concerns about handing over too much

power and authority to the federal government, but he eventually conceded and voted

along party lines (Sensenbrenner, 2001). Both Rep. Marge Roukema (R-NJ) and Rep.

David Dreier (R-CA) rebuffed criticisms that HR 3162 sidestepped civil liberties and due

process by emphasizing the need to give law enforcement the most technologically-

advanced tools to combat terrorism abroad and at home (Sensenbrenner, 2001).

In particular, Dreier said that current law had not kept pace with investigators’

ability to effectively track terrorist suspects: “I think that it is very, very important to

note that the technological changes that we have observed over the past couple of decades

have clearly provided an impetus for the changes that are being made in this measure.

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And in the past, our own surveillance structure has been used against us whereby people

continue to move with the new technology, with cellular telephones, et al, and they could

not be traced (Sensenbrenner, 2001).”

On October 24, 2001, the House passed the bill 357-66. Reviewing some of the

more controversial provisions, the final bill:

Sunset: Set an expiration date of 2005 for most of the intelligence

provisions, although investigations in progress would not be affected. The

House Judiciary Committee had lobbied for a more liberal 2-year sunset

and the Senate Judiciary Committee anted the Administration’s request for

a sustained 5-year sunset (CQ, 2001).

Surveillance: In some cases, federal officials could perform “sneak and

peak” warrants to search homes, confiscate certain types of property, and

monitor computers without notifying the suspects in advance.

Foreign Intelligence [Title II]: Permits roving wiretaps3 for purposes

other than foreign intelligence gathering as long as the information

continued to be a “significant purpose” of the operation (CQ, 2001).

Alien Detention [Title IV]: Allows the attorney general to detain an alien

for up to seven days before bringing deportation or criminal charges.

In the Senate, by comparison, Judiciary Committee Chairman Patrick J. Leahy

(D-VT) worked in closed-room sessions with colleagues and Justice Department officials

to write a bill (S.1510) acceptable to the administration (CQ, 2001).

3 The government disclosed in April 2003 that it had requested and won approval for a record 1,228 warrants in 2002 for secret wiretaps and searches of suspected terrorists and spies (CBS, 2003).

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He had reservations about the sharing-of-information provision:

There would be far less controversy if these provisions were limited to information about domestic or international terrorism or espionage. Instead, they potentially authorize the disclosure throughout intelligence, military, and national security organizations of a far broader range of information about United States persons including citizens, permanent resident aliens, domestic political groups, and companies incorporated in the United States. The information may be shared if it fits the broad definition of “foreign intelligence” and “foreign intelligence information.”

The first Bush plan would have made matters much worse. It would have listed

40 federal crimes ranging from computer hacking to malicious mischief to the use of

weapons of mass destruction, and designated them as “federal terrorism offenses4,”

regardless of the circumstances under which they were committed (Leahy, 2001).

Leahy convinced the executive branch to trim the list of crimes that would have

been considered terrorism in Section 808 (Leahy, 2001). The shorter, more concise list,

more closely reflected the types of offenses committed by terrorists. In the end, Leahy

called the negotiations between the Senate and the House a “bicameral, bipartisan”

process and that HR 3162 “deserved the full support of the Senate” (Leahy, 2001).

The Senate concurred 98-1 with the House and passed HR 3162 on Oct. 25, 2001

(CQ, 2001). Sen. Russell Feingold, the lone dissenting vote, was angered that the

Judiciary Committee didn’t have time to consider the bill, so he offered these three

amendments to alleviate his concerns with the civil rights provisions (Leahy, 2001).

One amendment would have maintained limits in federal and state law

enforcement access to personal records, especially with sensitive medical and

financial information.

4 In January 2003, the General Accounting Office reported that federal prosecutors had distorted their claims of convicting alleged terrorists by errantly categorizing three out of four cases as “international terrorism” (CBS, 2003).

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The second amendment would have required law enforcement to determine that a

surveillance target was actually in the bugged house or using the tapped phone

before surveillance could be initiated.

The third amendment would have placed sensible limits on the government’s

ability to intercept computer communications. Among these limits were the type

of investigation and the length of surveillance in which the government could use

new surveillance authority.

These amendments were overwhelmingly defeated.

The president signed the U.S. Patriot Act into law on Oct. 26, 2001 (CQ, 2001).

One measure of the Patriot Act’s scope is that it reaches into numerous existing laws,

especially those dealing with foreign intelligence surveillance, criminal offenses, national

security, banking, and immigration (Michaels, 2002). Many provisions make subtle—

and simultaneously—precise and notable changes to these statutes. Other provisions

attach new sections to existing statutes, ranging from the simple to the exceedingly

complex (Michaels, 2002). Statutes affected or amended by the Patriot Act include:

Anti-Terrorism and Effective Death Penalty Act of 1996 Bank Holding Company Act of 1956 Bank Secrecy Act of 1991 Cable Communications Policy Act Electronic Communications Privacy Act Fair Credit Reporting Act Foreign Intelligence and Surveillance Act of 1978 Illegal Immigration Reform & Immigrant Responsibility Act of 1996 Immigration and Nationality Act International Emergency Powers Act Money Laundering Control Act of 1986 National Security Act of 1947 Omnibus Crime Control and Safe Streets Act Right to Financial Privacy Act of 1978 Stored Communication Act Trade Sanctions Reform and Export Enhancement Act of 2000

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IMPACT on CIVIL LIBERTIES

As much as it praises political freedoms and government openness, the United

States government has a long and dark history of rounding up troublemakers, suppressing

dissent, criminalizing expression, sowing suspicion, and delaying justice (Michaels,

2002). What is most disturbing is that America may be turning to these disturbing trends

to unleash forces that will be practiced in an unprecedented atmosphere of political

legitimacy, within the framework of an extensive and multi-faceted bureaucracy fueled

by massive funding increases and with an-all encompassing electronic matrix. The net

result will create a permanent interlocking investigative and national security machine

never before experienced (Michaels, 2002).

Let’s look at one moment in history. In 1798, Congress passed the Alien and

Sedition Acts, which mirrored John and Abigail Adams’ belief that modern-day

‘conservatives’ called the administration “the government” and those who opposed the

government’s policies were “unpatriotic” (Hartmann, 2003). In sharp contrast to his

predecessor, George Washington, America’s second president succeeded in creating an

atmosphere of fear and division in the New Republic. Across the nation, Federalist mobs

and Federalist-controlled police and militia attacked Democratic-Republican newspapers

and shouted down or threatened individuals who dared to speak out against John Adams

(Hartmann, 2003).

Even John Dean, former White House Counsel under the Nixon Administration,

recognized the haste and thoughtlessness through which Republicans and Democrats

alike rushed the “potentially dangerous” Patriot Act through Congress (Michaels, 2002).

“We need to understand why legislating the aftershock of terrorism should be avoided if

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possible,” he said. “Each national crisis has left the nation a little less democratic than

before (Michaels, 2002).”

Information Sharing (TITLE II)

Proponents of the U.S. Patriot Act believe that the root cause of 9/11 was an

intelligence vacuum created by archaic laws that contributed to the government’s

inability to gather and interpret relevant intelligence (EEF, 2003). Opponents say

nonsense! The real reason behind 9/11 is the government’s poor coordination between

agencies charged with intelligence and counter-intelligence, and poor sorting of

information (EEF, 2003).

To a larger extent, the supposed agency or intelligence deficiencies prior to 9/11

involved internal agency procedures and the speed at which warnings are moved up the

agency chain of command (Michaels, 2002). The Patriot Act solves that problem too

much by opening the barn door to let all the horses out when the real problem is the barn

maintenance (Michaels, 2002).

In the current political and investigative climate, C. William Michaels (2002)

argues that agencies will tend to overcompensate. Irrelevant information will be

uploaded into a never-ending interagency information loop and the potential for abuse is

greater than the potential that such wholesale information sharing will stop terrorism.

These new provisions accomplish little than simply improving procedures in the

investigation and intelligence structure that existed before the tragedy (Michaels, 2002).

With all of the information sharing that the Patriot Act either mandates or allows, the real problem soon to be faced by these agencies is how to coordinate, assimilate, categorize, and analyze the mountains of information, which potentially will create a backlog that may impede rather than improve terrorism investigations. Thus, the Patriot Act may leave the situation worse than when it found it (Michaels, 2002).

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Rep. Jim Sensenbrenner, Jr., one of the early advocates of the Patriot Act,

denounced the Justice Department in April 2003 for not sharing data with lawmakers for

them to judge the effectiveness of the Act (CBS, 2003). That lack of information has

made it unlikely that he will support expanding the agency’s powers or renewing its

current authority when the investigative provisions of the Act expire5 in October 2005

(CBS, 2003).

Title II eliminates traditional barriers among surveillance, investigation, and

information roles of the FBI and CIA (Michaels, 2002). It brings the entire federal law

enforcement and investigative machine into a free-flowing information stream never so

expressly declared in any federal statute and without any control aside from internal

guidelines. This information sharing can encompass the length and breadth of human

communication, a Matrix-like reality: electronic voice mail, cell phones, hard-wired

phones, fax machines, standard voice mail, Internet e-mail, credit card information,

business records, and grand jury testimony. Surveillance can now be performed on a

national level executed with a single surveillance order (Michaels, 2002):

For example, the U.S. Patriot Act dramatically lowers the surveillance standard

applied to certain aspects of the Internet by requiring only that law enforcement certify

that the surveillance is relevant to a criminal investigation (PFAW, 2002). The court

must accept the certification, even if the court suspects that law enforcement is on a

fishing expedition. The counter-terrorism law also lowers the standard in permitting the

FBI to conduct a secret search or wiretap from one of primary purpose to one that is a

significant purpose (PFAW, 2002).

5 The public perception is that most of the Patriot Act will sunset, or become inactive, in October 2005. According to C. William Michaels (2002), that only applies to selected sections of Title II. The vast bulk of the Act is permanent.

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During the Senate Judiciary Committee debate on the U.S. Patriot Act, Sen. Diane

Feinstein (D-CA) said that, under HR 3162, the government can compel the disclosure of

personal records of anyone—someone who worked with you or lived next door to you or

went to school with you or sat on an airplane next to you or had been seen with you or

when someone calls your phone number; that someone being the target of the

investigation (Feingold, 2001).

Under this provision, all business records can be taken including those containing

sensitive personal information such as medical records, educational records, or library

records (Feingold, 2001). “We are not talking about terrorist suspects, we are talking

about people who just may have come into some kind of casual contact with the person in

that situation,” she said. “This is an enormous expansion of authority under a law that

provides only minimal judicial supervision.”

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Detention of Terrorist Suspects (Title IV)

The Title IV statute provides for a mandatory, indefinite detention6 of an alien

even if he or she wins his deportation proceeding, cannot be removed, and has a right to

stay in America permanently (Feingold, 2001). The decision to incarcerate an alien is

based exclusively on a finding that the attorney general has reasonable grounds to believe

that he or she committed a crime of violence (Feingold, 2001).

“The fact that the government can lock up 500 people without charging any of

them for being involved with a crime illustrates how expansive our powers already are,”

said Professor David Cole of Georgetown University’s Law Center. “And that suggests

that the kind of expansions that the government is seeking, particularly in treating people

as guilty solely for their political associations and then also, authorizing indefinite

detention of those people, is unnecessary” (Feingold, 2001).

Opponents argue that indefinite detention circumvents due process by seriously

lowering the standard to “reasonable grounds to believe,” which falls under the probable

6 The actual wording of Title IV states that an alien who is certified and detained by the Justice Department can be incarcerated for seven days without being charged of a crime (Michaels, 2002). However, if the alien is not “removed” or if deportation proceedings are deemed too dangerous, then the alien can incarcerated for additional increments of up to six months. This detention is an option if the attorney general determines that the alien, even if deported, will “threaten the national security of the United States or the safety of the community or any person” (Michaels, 2002).

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There is no doubt that if we lived in a police state, it would be easier to catch terrorists. If we lived in a country that allowed the police to search your home at any time for any reason; if we lived in country that allowed the government to open your mail, eavesdrop on your phone conversations, or intercept your e-mail; if we lived in a country that allowed the government to hold people in jail indefinitely based on what they write or think, or based on mere suspicion that they are up to no good, then the government would no doubt discover and arrest more terrorists.

But that probably would not be a country in which we would want to live. And that would not be a country for which we could, in good conscience, ask our young people to fight and die. In short, that would not be America. – Sen. Russell Feingold (D-WI) speaking during the Senate debate on the U.S. Patriot Act.

cause standard required for pretrial detention in criminal proceedings and far below the

burden of proof for criminal conviction or beyond a reasonable doubt (PFAW, 2002).

The current detainees are primarily male, foreign born, and from predominantly

Muslim countries such as Egypt, Saudi Arabia, and Pakistan (Masci & Marshall, 2001).

On Dec. 7, 2001, per figures cited by the attorney general, 563 people are being held for

immigration violations and 60 are in federal custody for other reasons. Of these 60,

around 24 are being detained as “material witnesses,” hinting that investigators may need

them for information purposes to use in the war on terrorism (Masci & Marshall, 2001;

Ashcroft, 2001b).

Supporters also point out that the net is not cast as wide or as carelessly as it

might appear (Masci & Marshall, 2001). “It’s important to remember that there are

hundreds of thousands of young Arab men in this country right now,” said Orin Kerr,

associate professor at George Washington University School of Law. “Sure, the

government has made mistakes — detaining people they have since let go — but this idea

that they’re pulling all of them off the street is incorrect. They’ve arrested only a very

small fraction of them (Masci & Marshall, 2001).”

In March 2004, the U.S. Supreme Court will take on the issue of American court

jurisdiction and whether it extends to foreign nationals’ challenge to their imprisonment

at a Cuban military base (Vicini, 2003). The justices agreed to rule on whether U.S.

courts have the power to consider challenges by a group of Afghan war detainees who

have been continually confined without access to families or legal representation and

with no charges brought against them (Vicini, 2003).

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After the 9/11 attacks, these detainees were seized during the U.S.-led campaign

against the Taliban in Afghanistan and against Osama bin Laden’s al Qaeda network

(Vicini, 2003). The failure to nab bin Laden in 1996 is often referred to as a reason for

supporting President Bush’s executive order to set up military tribunals to try foreigners

suspected of terrorism (Masci & Marshall, 2001).

If these foreign nationals are victorious in America’s highest court, their trials

could create chaos for law enforcement, judge, jury, prosecutor, defendant, and the public

at large (Masci & Marshall, 2001). The attorney general and other defenders of the

proposal argue that military tribunals may be needed because much of the evidence

presented against defendants may be secret or top secret in nature and inappropriate in an

open court (Masci & Marshall, 2001).

“I’d be concerned for my safety if I were on a jury that convicted an Al Qaeda

member,” said Douglas W. Kmiec, dean of the Catholic University School of Law.

“These trials would endanger the cities they were held in because they might be bombed

in retribution for the conviction of the terrorist.” (Masci & Marshall, 2001)

On the contrary, opponents claim that the degree to which the order concentrates

power in the hands of the executive branch is mind-numbing: to empower the president

to decide who will be tried under the military tribunal system; to create the rules by

which the trial will proceed; to appoint those who will serve as judge, prosecutor, and

defense attorney; to determine penalties once a guilty verdict is reached; and to decide all

appeals (CCR, 2002).

Especially troubling to human rights activists is that secondhand recollections of

conversations or “hearsay” evidence could be used against a defendant in a military court,

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evidence that is generally prohibited in federal criminal judicial proceeds (Masci &

Marshall, 2001). Furthermore, evidence screened from classified information could be

secretly admitted in a military trial to protect national security and defendants could be

prevented from challenging the information, even if it led to their conviction (Masci &

Marshall, 2001).

Title IV of the Patriot Act requires that the Justice Department report to Congress

every six months about aliens taken into custody and detained (Andrews, 2002). In

shrouded secrecy, the report does not have to include the alien’s name, other background

information, when the alien was taken into custody, or even where the alien is being held

(Andrews, 2002).

Freedom of Speech

The U.S. Patriot Act contains provisions that will chill or even criminalize

legitimate expressions of political perspectives (CCR, 2002). For instance, the Act

creates a new category of crime, domestic terrorism, which blurs the line between speech

and criminal activity. Section 802 defines domestic terrorism as “acts dangerous to

human life that are a violation of criminal laws” that “appear to be intended to influence

the policy of government by intimidation or coercion.” This definition is so vague that

acts of civil disobedience may be interpreted to violate the law (CCR, 2002).

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We need honest, reasoned debate; not fear mongering. To those who pit Americans against immigrants, and citizens against non-citizens; to those who scare peace-loving people with phantoms of lost liberty; my message is this: Your tactics only aid terrorists—for they erode our national unity and diminish our resolve. They give ammunition to America’s enemies and pause to America’s friends. They encourage people of good will to remain silent in the face of evil. – Attorney General John Ashcroft speaking to the Senate Judiciary Committee.

The point of civil disobedience oftentimes is to influence government policy;

therefore, an act of attrition may be viewed as an attempt to coerce that change (CCR,

2002). When political protest harms property or individuals, those particular harmful acts

are already punishable under various criminal laws (PFAW, 2002). Sometimes, domestic

political protests unintentionally escalate to violence. Critics charge that to allow such

incidents to be treated as terrorism could have a chilling effect on dissent (PFAW, 2002).

In addition, part of the definition stating that acts must be “dangerous to human

life” is extremely broad—it does not discern between intentional acts and those that

might cause inadvertent harm (CCR, 2002). Thus, a spontaneous demonstration that

blocks the path of an ambulance might bring charges of domestic terrorism under the new

law. Such a broad definition attracts abuse, in which the remote possibility of danger

creates a pretext under which political activists can be arrested and charged with felony

domestic terrorism, rather than a misdemeanor charge that they typically incur (CCR,

2002).

On the other hand, Douglas Kmiec, senior policy fellow at Pepperdine University,

told the Senate Judiciary Committee that expanding the definition of terrorism in the

context of immigration to include those who knowingly assist or associate – not

accidentally, not innocently, not for purposes of non-violent communication – but to

knowingly assist terrorist activity, does not violate Constitutional rights (Feingold, 2001).

“The American people are not going to let the government burn the Constitution

in the name of fighting terrorism,” said Irwin Schwartz, executive director of the National

Association of Criminal Defense Lawyers. “Look at the Congress and the press. They’re

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already challenging the administration on many of its policies (Masci & Marshall,

2001).”

Guilty by Association

Under Section 411, non-citizens may be deported for supporting an organization

that they do not know is engaged in terrorist activity (CCR, 2002). Similarly, entry into

the United States may be dependent on a political litmus test: individuals associated with

groups “whose endorsement of acts of terrorist activity the Secretary of State has

determined undermines the United States’ efforts to reduce or eliminate terrorist activity”

will be denied entry. Plus, once a group is under investigation, there is nothing in the

guidelines to prevent the FBI from monitoring the group’s First Amendment-protected

activities such as demonstrations, writings, and information such as membership data and

financial transactions. Such unrestricted access invites harassment (CCR, 2002).

Even scarier, in the Patriot Act II proposal7, Americans could lose their

citizenship if they contribute “material support” to organizations declared by the

government, even retroactively, to be “terrorist” in nature (Welch, 2003). And consider

Nat Hentoff’s ominous statement in the Feb. 28, 2003 Village Voice, “Until now, in our

law, an American could only lose his or her citizenship by declaring a clear intent to

abandon it. But, and read this carefully from the new bill, ‘the intent to relinquish

nationality need not be manifested in words, but can be inferred from conduct.’”

7 On Jan. 10, 2003, Attorney General John Ashcroft circulated a draft of Patriot Act II, curiously called the Domestic Security Enhancement Act of 2003.

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CONCLUSION

Even conservatives have expressed doubt about the effectiveness of the U.S.

Patriot Act. Steve Lilienthal (2003), a policy analyst with the Free Congress Foundation,

challenged the conventional wisdom that the country is more secure because of the

counter-terrorism law. He cited a recent joint House and Senate Intelligence Committee

report, which concludes that the intelligence community had failed to take advantage of

both the individual and collective significance of accessible information germane to 9/11.

In turn, the intelligence community, for a variety of reasons, did not collate that

information and fully understand the different layers of information and inter-

relationships that could have eminently enhanced its chances of uncovering and

preventing Osama bin Laden’s plan to attack the United States on 9/11 (Lilienthal, 2003).

Fundamentally, Lilienthal (2003) surmises that the draconian powers granted to

the Justice Department have not guaranteed better coordination between law enforcement

and intelligence agencies – one of the prime reasons why the 9/11 plot was not prevented.

C. William Michaels (2002) warns that there is no greater threat to the security of

this country than a systematic dismantling of civil liberties and the rule of law with a

dramatic shifting of political will and resources to investigate, observe, and prosecute

along with the strange innate ability of the American public to place too much faith in

government at the exact time when just the opposite is needed.

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Appendix A — Provisions of the U.S. Patriot Act8

To deter and punish terrorist acts in the United States and around the world to enhance law enforcement investigative tools and for other purposes.

Establishes a counter-terrorism fund to reimburse the Department of Justice and other Federal agencies for costs relating to counter-terrorism activities.

Expresses the sense of Congress that the civil rights and civil liberties of Arab-Americans, Muslim Americans, and Sikh Americans should be protected and that acts of discrimination against members of these groups should be condemned.

Amends the Foreign Intelligence Surveillance Act of 1978 and numerous other acts to provide enhanced investigative tools and improve information sharing for law enforcement and intelligence communities to combat terrorism and terrorist-related crimes.

Authorizes confiscation of property of foreign persons, companies or countries that have aided or engaged in attacks against the United States.

Revises authority for law enforcement and intelligence agencies to intercept and share information from wire, oral, and electronic communications relating to terrorism and computer fraud and abuse.

Authorizes FBI to expedite the employment of translators for counter-terrorism investigations and operations.

Authorizes law enforcement officials to intercept computer communications of individuals who access protected computers without authorization.

Amends the Bank Holding Company Act of 1956 and other acts to establish measures to combat the financing of terrorism through money laundering and other financial crimes.

Prohibits U.S. financial institutions from providing banking services to “shell” banks that have no physical presence in any country.

Revises statutory provisions protecting financial institutions that report suspicious activities from civil liability, and establishes civil and criminal penalties for violations of certain Department of Treasury orders.

Requires Department of Treasury, in consultation with SEC, to develop regulations requiring broker-dealers to file suspicious activity reports, and authorizes Department of Treasury, in consultation with CFTC, to develop regulations requiring certain commodity traders to file suspicious activity reports.

8 CIS Legislative Histories, Congressional Information Services, Inc. (1 CIS PL 10756).

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Appendix A — Provisions of the U.S. Patriot Act

Authorizes FY2002-FY2005 appropriations for Financial Crimes Enforcement Network (FinCEN) programs that utilize information technologies to aid financial crime law enforcement efforts, and establishes FinCEN as a bureau in the Department of Treasury.

Makes it a federal crime to smuggle more than $10,000 in cash in or out of the country and revises prohibition on unlicensed-money transmitting businesses.

Revises anti-counterfeiting laws and establishes U.S. extraterritorial jurisdiction for certain financial crimes.

Directs the Department of Justice and FBI to grant access to the Department of State and INS to the criminal history records of visa applicants.

Provides that aliens will not be admitted in the United States if they are a member of a political, social, or other group whose public endorsement of terrorism undermines U.S. law enforcement efforts or if he/she is suspected of engaging in money laundering activities.

Revises Department of Justice authorities to detain and deport aliens suspected of terrorist activities.

Revises immigration laws to provide humanitarian relief to aliens who were victims of the 9/11/01 terrorist attacks.

Authorizes Department of Justice to pay rewards to combat terrorism and revises the Department of State program providing rewards for information that leads to the dismantling of a terrorist organization or the identification or location of individuals holding leadership positions in terrorist organizations.

Revises benefit programs for public safety officers disabled in the line of duty and to families of public safety officers killed in the line of duty.

Amends the Victims of Crime Act of 1984 to revise crime victim compensation programs including victims of terrorism.

Establishes a statutory definition of domestic terrorism.

Establishes penalties for cyber-terrorism and terrorist conspiracies, and alternate maximum penalties for certain terrorist crimes.

Provides that certain terrorist crimes may be prosecuted under the Racketeer Influenced and Corrupt Organizations Act.

Establishes new federal crimes and penalties related to the production, transfer, acquisition, or possession of any biological agent, toxin, or delivery system for use as a weapon.

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Appendix A — Provisions of the U.S. Patriot Act

Directs the Department of Justice to implement a program for training certain federal, state, and local officials in the identification and use of foreign intelligence.

Directs the Department of Justice to make grants to state and local governments to improve police, fire department, and first responders’ ability to prevent and respond to acts of terrorism.

Authorizes FY2002 funds for DEA regional anti-drug police training in Turkey, and to increase anti-drug efforts in the South and Central Asia region.

Directs FBI to study the feasibility of providing airlines with computer access to the names of passengers suspected of terrorist activity by federal officials.

Amends the Telemarketing and Consumer Fraud and Abuse Prevention Act to include fraudulent charitable solicitations.

Prohibits states from issuing licenses to individuals for the transportation of hazardous materials before the Department of Transportation has determined that the individual does not pose a security risk.

Expresses the Senate’s intent to fund bio-terrorism preparedness and response programs.

Establishes the National Infrastructure Money Laundering Abatement and Financial Anti-Terrorism Act of 2001; title X, section 1011 as the Crimes Against Charitable Americans Act of 2001; and title X, section 1015 as the Critical Infrastructures Protection Act of 2001.

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WORKS CITED

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Ashcroft, John (Attorney General). “Anti-Terrorism Policy Review.” Senate JudiciaryCommittee. Congressional Record: Dec. 6, 2001(b).LexisNexis™ Congressional (Online Service). Bethesda, MD:Congressional Information Service.

CBS News. “Clash Over Patriot Act.” Online Posting. June 5, 2003.<www.cbsnews.com>.

Center for Constitutional Rights. “The State of Civil Liberties: One Year Later,Erosion of Civil Liberties in the Post 9/11 Era.” Online Posting. September 2002.<www.ccr-ny.org/v2/reports/docs/Civil_Liberties.pdf>.

Congressional Quarterly. 2001 Almanac. “Anti-Terror Bill Zooms Into Law.”

Doyle, Charles. “The USA Patriot Act: A Legal Analysis.” Online Posting.Original Source: Congressional Research Service: April 15, 2002.<http://fpc.state.gov/documents/organization/10092.pdf>.

Electronic Frontier Foundation. “Analysis of Patriot II: Provisions of Domestic SecurityEnhancement Act of 2003 That Impact the Internet and Surveillance.”Online Posting. November 23, 2003.<www.eff.org/Censorship/Terrorism_militias/patriot-act-II-analysis.php>.

Feingold, Russ. “U.S. Senator Russ Feingold Holds Hearing on Protecting ConstitutionalFreedoms.” Senate Judiciary Committee: Federalism & Property RightsSubcommittee. Congressional Record: Oct. 3, 2001.LexisNexis™ Congressional (Online Service). Bethesda, MD:Congressional Information Service.

Hartmann, Thom. “How an Earlier ‘Patriot Act’ Law Brought Down A President.”Online Posting. Common Dreams: June 16, 2003. <www.commondreams.org>.

Leahy, Patrick, et al. “USA Patriot Act of 2001.” Congressional Record: Oct. 25, 2001(147 CR S10990). LexisNexis™ Congressional (Online Service).Bethesda, MD: Congressional Information Service.

Lilienthal, Steve. “Adding Privacy to Patriot.” Online Posting. Free Congress:August 8, 2003. <www.freecongress.org/commentaries/030808sl.asp>.

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WORKS CITED

Masci, David, and Patrick Marshall. “Civil Liberties in Wartime: Is the Government’sCrackdown on Terrorism Too Harsh?” Online Posting. CQ Researcher:December 14, 2001. <www.cqpress.com>.

Michaels, William. No Greater Threat: America After 9/11 and the Rise of a NationalSecurity State. Algora Publishing: New York City (2002).

Oxley, Michael, et al. “Uniting and Strengthening America by Providing AppropriateTools Required to Intercept and Obstruct Terrorism (USA Patriot) Act of 2001.”Congressional Record: Oct. 23, 2001 (147 CR H7159). LexisNexis™ Congressional (Online Service). Bethesda, MD: Congressional Information Service.

People for the American Way (PFAW). “Protecting Civil Liberties: USA Patriot Act.”Online Posting. Unknown Date. <www.pfaw.org/pfaw/dfiles/file_179.pdf>.

Sensenbrenner, Jim, et al. “Uniting and Strengthening America by ProvidingAppropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot)Act of 2001.” Congressional Record: Oct. 23, 2001 (147 CR H7159).LexisNexis™ Congressional (Online Service). Bethesda, MD: CongressionalInformation Service.

Vicini, James. “Top Court to Decide Guantanamo Detainees’ Cases.” Online Posting.Reuters News Service. FindLaw: Nov. 10, 2003. <http://news.findlaw.com>.

Welch, Matt. “Get Ready for Patriot II.” Online Posting. Alternet: April 2, 2003.<www.alternet.org/story.html?StoryID=15541>.

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