Alexander's Column

The 2001 USA PATRIOT Act

Mark Alexander · Oct. 10, 2003

Contents:
Introduction: Liberty and Security
The Constitution and Civil Rights
Areas of Popular Concern
Possible Solutions to Potential Problems
Looking Ahead: The 2003 USA PATRIOT Act
Conclusion
Note: In keeping with the mission of The Patriot Post, the following paper is intended only as a brief introduction to the much-publicized 2001 USA PATRIOT Act. The issues involved in the Act are many and nuanced, and this brief synopsis and critique does not constitute a definitive response.

Introduction: Liberty and Security

In the wake of the September 11, 2001 terrorist attacks against the New York City World Trade Center and the Pentagon in Washington, D.C., the U.S. Congress, at the urging of the Bush administration, overwhelmingly passed legislation known as the 2001 USA PATRIOT Act. The act, standing for “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism,” was primarily intended to provide law enforcement agencies with a legally-defined mandate to preempt and respond to real and potential terrorist threats against the United States. However, since passage of the Patriot Act, opposition from every part of the political spectrum – from extreme Leftists to ardent libertarians – have voiced serious complaints over the nature and scope of these 340 pages of new law. To date, some 165 communities around the country have passed resolutions either condemning the Patriot Act or seeking to restrict its application.

While many of the accusations lodged against the act are, in the words of the Justice Department’s Mark Corallo, illustrative of some Americans’ “incredible ignorance of federal law,” other objections may not be so far off the mark. According to the Justice Department’s recent inspector general’s report to Congress, 34 credible complaints (of the more than 1,000 complaints received) of civil rights and civil liberties intrusions were reported in the six-month period ending June 15. While most of the complaints were lodged against the DoJ’s Bureau of Prisons concerning the treatment of Arab and Muslim detainees, the inspector general’s report also lists credible complaints registered against the Federal Bureau of Investigation, the Drug Enforcement Agency and the Immigration and Naturalization Service.

As such incidents demonstrate, one of the major shortfalls of the USA Patriot Act is its substantial (though not complete) dependency on its enforcers, namely federal law enforcement agencies, to police themselves in the law’s application. Such is often the case in the enforcement of law with respect to the civil rights of citizens. It is true: the more intrusive the means of law enforcement, the greater protection a given society has against criminal activity in general and terror-related activities in particular. The question, of course, is at what price this security comes.

As one policy analyst has hypothesized, passenger airlines could be verifiably rendered one-hundred percent weapon-free if every passenger were strip-searched prior to boarding. However, clearly the cost to personal liberty and privacy would be too great. But does the frisking of passengers by airport screeners also constitute too great a loss of personal liberty in favor of security? Consider requiring passengers to empty pockets, remove shoes, and pass through a metal detector? Where must we draw the line?

In times of war and national crises, it is common and, indeed, necessary that the pendulum between individual liberty and corporate security swing toward the latter. But to what extent, both morally and legally, is it acceptable to infringe on the rights of the individual in order to attain this security? In philosophy, this age-old dilemma is broadly known as the problem of the one and the many: How does the one (the individual) relate to the many (civil society) without one infringing upon and ultimately swallowing the other? In such questions as these, we are faced with two competing dangers: that autonomy of the individual at the cost of civil security and stability on the one hand; totalitarianism of the state against its citizens on the other hand.

Contrary to what its many critics may claim, the Patriot Act does offer a viable alternative that does not leave us gored on either of the horns of this liberty/security bull. How is this so? Such an examination must consider each aspect of the Patriot Act that has been rendered “objectionable” by its critics.

First, the application of constitutionally-guaranteed civil rights to the war on terror is in order.

The Constitution and Civil Rights

The Preamble to the Constitution makes clear that the federal government is established in part to “insure domestic Tranquility” and “provide for the common defence.” Under the rubric of providing for the common defense, the President and Congress are invested with the powers of war, and this was done with the expectation that these powers, some day, would be used. In addition, the Constitution invests Congress with the obligation and authority to “punish…Offenses against the Law of Nations,” which would include any abrogation of the international law of war. Today, we call such violations of the rules of war “terrorism.”

The current war against Jihadi terrorism is precisely that: a war. According to the enumerated federal prerogatives for the prosecution of a war, such terrorists are not privileged with the guarantees constitutionally afforded to those accused of other criminal breaches of the law. Not only are they not guaranteed the rights implied by the constitutional provision for a writ of habeas corpus, but terrorists are not guaranteed the protections of the Fifth Amendment, either. In fact, civil rights are constitutionally guaranteed to protect citizens exclusively, so that terrorists not possessing U.S. citizenship are de facto excluded from any discussion of civil rights protection.

The Constitution does, however, make provision for the curtailment of the civil rights of citizens when necessitated by war and the public safety. It would be incorrect, however, to suggest that civil rights can be suspended across the board in time of war. For example, the Third Amendment expressly guarantees particular civil rights during time of war: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

Some civil rights, on the contrary, may be suspended under certain circumstances. During the American Civil War, for instance, President Abraham Lincoln used the executive authority afforded him under Article I, Section 9 of the Constitution to suspend the writ of habeas corpus on eight separate occasions, and under that provision incarcerated some 38,000 Americans: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” After the war’s conclusion, the Supreme Court ruled that even during wartime, the president does not possess the prerogative to suspend habeas corpus as long as the civil courts continue to function normally.

While the court’s decision was correct, the basis of that decision was misguided. Though Lincoln’s decision may be criticized on other grounds, the reasoning for the court’s decision was equally unconstitutional. The standards for the suspension of habeas corpus are “Rebellion or Invasion [where] the public Safety may require it,” not the functionality of the courts.

That the Constitution makes such an allowance for the suspension of habeas corpus, hence the suspension of judicial review, indicates that civil rights may be constitutionally suspended. By definition, the suspension of habeas corpus implies a suspension of certain civil rights; namely, the right to (1) judicial review, and (2) a trial that is (3) public, (4) speedy, and (5) by jury.

The present situation, to be certain, does not call for a suspension of civil rights. Thus a moderate swing of the pendulum from personal liberty to security is appropriate given the unique circumstances of the present conflict. Laws granting expanded federal authority for reasons of security can almost invariably be abused, though, and necessitates a brief enumeration of and response to some of the key objections raised by critics of the Patriot Act.

Areas of Popular Concern

A. Domestic Terrorism Defined

In principle, objections to the expansion of federal authority under the Patriot Act are not without merit. Indeed, as James Madison told Virginia’s ratifying convention during its consideration of the present U.S. Constitution, “There are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.”

The greatest potential problem posed by the Patriot Act is also the most obvious: How does the Patriot Act define terrorism, and who is the arbiter of this judgment? It is almost universally agreed that the federal government must take responsibility for preventing and prosecuting acts of domestic terrorism, but the definition of “domestic terrorism” is the key. If defined too broadly, domestic terrorism could encompass crimes previously prosecuted under the protection of the civil rights guaranteed to any citizen. If what was formerly a criminal prosecution is now defined as terrorism, the civil rights of a citizen, as discussed above, are subject to curtailment.

On the other hand, if domestic terrorism is defined too narrowly, terrorist operatives could potentially slip through loopholes where their activities could only be investigated under the restraints of a criminal procedures code. Out of concern for civil rights, a terrorist act far deadlier than those of September 11, 2001 could occur if the Patriot Act misses the mark in its definition of domestic terrorism.

Section 802 of the Patriot Act, “Definition of Domestic Terrorism,” reads:

“[T]he term `domestic terrorism’ means 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.”

B. Expansion of Executive and Federal Law Enforcement Authority

The Patriot Act does not simply expand federal law enforcement powers across the board, but rather affords federal law enforcement with enhanced authority relating to the deterrence and prosecution of terrorism alone.

Concerning the expansion of executive authority, Section 106 of the Act, “Presidential Authority,” simply allows the U.S. government to confiscate the property of known terrorists in the United States, and to dispose of that property for the nation’s benefit. Under the terms for domestic terrorism defined above, the confiscation of terrorists’ holdings does not constitute an objectionable expansion of authority.

Beyond the general idea of an expansion of executive authority, there are two primary areas of concern for serious critics of the Patriot Act: the expansion of law enforcement powers as it pertains to wiretaps and search warrants; and the rollback of FISA (Foreign Intelligence Surveillance Act of 1978) provisions regarding interagency information sharing.

Concerning the expansion of law enforcement powers, while legislation to expand and more clearly define the powers enumerated by the 2001 USA Patriot Act is already underway, so too are efforts to curtail portions of the original act, namely with regard to roving wiretaps and undisclosed (so-called “sneak and peek”) search warrants. Insofar as these measures apply only to counterterrorism operations (according to the definition of domestic terrorism provided by the act), they do not pose a threat to civil liberties such that outweigh their immense usefulness in combating terrorist threats. Disallowing roving wiretaps and other electronic surveillance would greatly encumber the task of tracking terrorist operations, and banning undisclosed warrants for search and seizure would quite literally give terrorists the “heads-up” to any counterterrorism investigation.

According to the Justice Department, the effectiveness of the Patriot Act in its current form is indisputable. Terrorist cells have been neutralized in Detroit, Michigan, Seattle, Washington, Buffalo, New York, and Portland, Oregon. In addition, some 255 criminal charges have been brought, 132 individuals convicted or plead guilty, and more than 3,000 suspected terrorists arrested globally, primarily due to the investigative latitude allowed under the Patriot Act. The expansion of the Patriot Act, however, is another question entirely.

The second primary area of concern is in regard to the partial overriding of the Federal Intelligence Surveillance Act (FISA), the law regulating domestic (normally FBI) investigations of foreign agents and terrorist groups, is now recognized as having been one of the most significant hindrances to intelligence-gathering efforts in time preceding the September 11 terrorist attacks. The Patriot Act (See Title II) allows for the coordination of domestic and foreign intelligence-gathering and interagency cooperation previously hindered by legal various legal restraints, making way for a coordinated counter-terrorism front on the part of U.S. intelligence and law enforcement agencies.

Again, terminology is key to the Patriot Act. Section 203, “Authority to Share Criminal Investigative Information,” reads in part,

“Notwithstanding any other provision of law, it shall be lawful for foreign intelligence or counterintelligence (as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 401a)) or foreign intelligence information obtained as part of a criminal investigation to be disclosed to any Federal law enforcement, intelligence, protective, immigration, national defense, or national security official in order to assist the official receiving that information in the performance of his official duties. Any Federal official who receives information pursuant to this provision may use that information only as necessary in the conduct of that person’s official duties subject to any limitations on the unauthorized disclosure of such information.”

Sec. 203 goes on to define “foreign intelligence information” as,

“[I]nformation, whether or not concerning a United States person, that relates to the ability of the United States to protect against– (i) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; … (ii) sabotage or international terrorism by a foreign power or an agent of a foreign power; or … (iii) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or…information, whether or not concerning a United States person, with respect to a foreign power or foreign territory that relates to…the national defense or the security of the United States; or…the conduct of the foreign affairs of the United States.”

In any case, surveillance authority and intelligence-gathering is accountable to Congress, by means of the U.S. Attorney General’s semi-annual congressional report on this subject expressly.

While much of the criticism directed against the Patriot Act involves this issue of interagency information sharing, most of the new statutes incorporated in the Patriot Act have already been in effect by executive order for at least twenty years, largely as the result of President Reagan’s definitive response to the Cold War. (Please note Reagan’s EO 12333 on “United States Intelligence Activities,” December 1981. The order specifically mandates coordination in CIA and FBI intelligence gathering, authorizes the FBI to conduct foreign intelligence operations, and orders both agencies to collect intelligence on international terrorists.) Constitutionally, then, the Patriot Act serves to undergird existing federal law enforcement authority by giving that authority a congressional mandate, while eliminating much of the historic bureaucratic friction and hampered information sharing between federal agencies, especially the FBI and CIA. In fact, it has been successfully argued that federal law enforcement, domestic and foreign intelligence services were never intended for their present day dichotomization, but for a series of pragmatic compromises reached in the aftermath of World War II, together with the very legitimate fear of placing so much authority in the hands of one man. (To be blunt, the concern revolved around the centralization of power in the hands of one man, former FBI Director J. Edgar Hoover). In other words, today’s division of domestic and foreign intelligence agencies did not arise from a concern over a potential threat to civil rights, as is commonly supposed. To the contrary, this division represents a convergence of bureaucratic necessities beginning in the Truman administration, but does not reflect today’s national security interests.

Possible Solutions to Potential Problems

Without a doubt, the provisions allowed by the Patriot Act are subject to potential abuse. Solutions to mitigate the potential for such abuse must be pursued, and it is hoped that the 2003 Patriot Act will serve to address many of these concerns. Of no small significance, the most substantive guard against abuse is provided for in the original Act: The 2001 USA Patriot Act will sunset, without congressional reauthorization, on December 31, 2005 (See Section 224).

Meanwhile, other safeguards must be pursued:

Terminology must be further refined. For instance, while the Act’s definition of “domestic terrorism” (above) offers a reasonable precision, does it ensure absolutely that domestic criminals, not motivated by terrorism, are protected with regard to their civil rights, particularly the Fifth Amendment? So-called “eco-terrorists,” abortion clinic bombers, and computer virus creators come to mind, specifically. To be certain, such legal definitions hold critical implications for the balance of personal liberty and national security.
Congressional authorization of counterterrorism measures should be in place. Congress must carefully review the methods used by the U.S. Department of Justice, FBI, CIA and other federal law enforcement and intelligence bodies, particularly in reference to roving wiretaps, undisclosed search warrants and other means of enhanced intelligence collection.
The 2001 Patriot Act makes clear the distinction that such enhanced intelligence-gathering and heightened federal law enforcement powers are for the purpose of guarding against terrorist in particular, not criminals in general. In many cases, the cost to civil liberties would simply be too high. Congress must ensure that those agencies responsible for enforcing the Patriot Act closely adhere to this all-important distinction.
The private sector needs to take a decisive lead in homeland security; in the financial markets and banking, communications industries and the airlines, especially. The Patriot Act mandates some such actions on the part of the private sector, notably in the security checks now going into effect in the banking sector, intent on denying a liquidity of funds to terrorist operatives. Similarly, the CAPPS II airport screening system will allow more thorough passenger screening by conducting background checks geared to uncover known and potential terrorists.
While national security is a federal concern, it is vigilance on the parts of the states that can, here as in any case, prevent an overstep of federal government prerogatives.

Looking Ahead: The 2003 USA PATRIOT Act

Presently, legislators are considering various proposals by the Bush administration to expand the authority granted by the 2001 Patriot Act. Cumulatively, these proposals have been dubbed “The Patriot Act II,” or “The 2003 USA Patriot Act.”

The three major proposals to look for in this next round of national security legislation are: 1) an expansion of the federal death penalty to include terrorism as a capital offense; 2) the denial of bail to terrorism suspects; and 3) the allowance of administrative (Department of Justice) subpoenas which would not require judicial authorization.

The first two provisions appear reasonable, constrained and well defined, and require little comment until the legislation’s language is available in a more finalized form. The third new provision, allowing the process of subpoenas for search warrants, wiretaps, etc. apart from judicial approval, raises more serious questions. Critics rightly point out that this provision would essential allow bureaucrats of the Justice Department to replace judges in signing off on search warrants and other information-gathering usually obtained through and restricted by a court order.

However, these critics must also recognize that such administrative subpoenas are already in existence, covering more than 300 types of federal investigations, including investigations related to threats against the president, health care fraud and child sexual abuse cases. Given the fact of such a vast array of preexistent administrative subpoenas, the timing of those who have singled out this particular instance for criticism – the particular instance being a national security measure to combat the emerging terrorist threat – is itself suspect. If the issue of administrative subpoenas is constitutionally dubious – as it may be – the debate should center on the 335 types of administrative subpoena investigations already serving as legal precedents.

Conclusion

Clearly, as is any case of federal expansion, the threat to liberty is an inherent problem. Furthermore, even if the Patriot Act is not abused by its inceptors in the present administration, could the Act be abused by subsequent governments? This is no small question, and points to the central danger posed by this legislation: A broad interpretation of the Patriot Act could, in some instances, exceed the law’s mandate to combat terrorism. If it is to continue to exist as a useful, constitutional tool of law enforcement and national security, the Patriot Act must constantly be subjected to meaningful scrutiny and refined in ways that maximize its effectiveness while minimizing its potential for abuse. That said, the 2001 USA Patriot Act is a bold and timely piece of legislation, in keeping with the constitutional values of our nation’s history, and essential to our nation’s future. It is hoped that the proposed 2003 national security legislation will follow in this same vein, and further refine existing law to combat the war on terror while preserving the liberty for which we fight.

(NOTE: As the 2003 Act revisions are passed, we will update this analysis.)