A tragic event such as the September 11 terrorist attacks in the United States paved the way for the creation of an anti-terrorism law such as the USA Patriot Act of 2001. Despite its general beneficial purpose of strengthening America’s law enforcement, the law was not spared from criticisms because of its reported violations of civil liberties and a person’s rights in particular. This paper aims to present how the law is applied to law enforcement practices as well as its implications to the protection of national security and promotion of privacy privileges.
The importance of the need to have a balance between safety and freedom of rights is what this discussion also intends to provide. Application of the USA Patriot Act of 2001 to Law Enforcement The September 11, 2001 terrorist attacks to the United States brought about the enactment of law of the “Uniting and Strengthening America by Providing Appropriate Tools required to Intercept and Obstruct Terrorism Act of 2001” or the USA Patriot Act of 2001.
As an offshoot of the tragedy which struck the nation considered as one of the most powerful and rich countries worldwide, the USA Patriot Act was, however, not exempted from criticisms. Despite the purpose of its framers to make the law work to the advantage of the country and safety of the American people, the measure apparently appeared to be more of a hindrance to the exercise of one’s rights and freedom. The escalated debate focused between upholding civil liberties and protecting public safety.
While the proponents of the USA Patriot Act emphasize the need for security of American citizens and the prevention of similar terrorist attack, its critics dispute that one’s rights and freedom should always be considered above all. It is undeniable that the law strengthens the country’s law enforcement with its provision of essential tools to stop and prevent the violent acts of terrorism. However, it is the same power that makes the law refutable.
The application of the Act to law enforcement practices is inclined to violate the freedom of the public and innate rights of an individual. In effect, any drastic deviation from what has been traditionally practiced or what is perceived to be a blatant violation of citizens’ rights defeats the very purpose of the law. Ultimately, in the nation’s war against terrorism, the use or implementation of extraordinary law is only justified if it does not pave the way for the rights and liberties of the people to cease to exist.
USA Patriot Act of 2001, An Overview Only a month after the tragic 9/11 terrorist attacks on the “World Trade Center’s twin towers, the Pentagon, and a field in Pennsylvania” (with the White House reportedly as the target) which killed thousands of American citizens and foreign nationals, the United States Congress passed a measure that aims to “deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes” (“USA Patriot Act of 2001” cited in Scheppler, 2005, p. 27).
Subsequently, with the approval of President Bush, the US Patriot Act became a law on October 26, 2001 and resulted in significant modifications or reconsiderations of the previously confined legal structure of the United States, especially with its fight against terrorism and related acts. With a primary purpose of addressing the horrifying implications of the terrorist attacks on the lives of American people as well as its expected effects on the nation’s economy and security, the USA Patriot Act of 2001 was designed to empower the law enforcement specifically in terms of its procedure of investigation (Scheppler, 2005).
However, despite the earnest efforts of the government to make its citizens fully accept the law under the premise of the need for a stringent law against terrorism, the hastily-made 342-page USA Patriot Act of 2001 was bombarded with loopholes. According to Minow (2002) and the Electronic Frontier Foundation, its rush and incomprehensive study and passage by the Congress even during the anthrax contamination scare as well as the immediate signing into law by President Bush appeared to be risky. It made the people susceptible to violation that the officers of law enforcement and intelligence agencies can possibly commit.
In its online analysis, the Foundation explained that the law, which made important changes to some 15 various statutes, apparently undermines the general protection of civil liberties and one’s basic rights in particular (Electronic Frontier Foundation, 2003). In light of the law’s notable lack of check and balance with regard to its implementation and as proven by accounts of alleged abuses committed by members of the law enforcement sector, it is difficult for the measure not to be subjected with critical analysis.
The law differs from traditional enforcement practices, specifically with the application of provisions about surveillance and investigation of electronic activities as well as communication rights. Hence, its critics argue that the law fails to conventionally safeguard the public’s freedom and an individual’s rights (Electronic Privacy Information Center, 2005). Application to Law Enforcement Podesta (2002) said that the amendments embodied in the USA Patriot Act of 2001 updated the country’s previous surveillance measures in order to present the realities and demands of the modern world.
However, he noted that in strengthening the surveillance abilities of law enforcers and intelligence agencies, not only the terrorists that are being tracked down feel the effects of the law but the residents as well (Podesta, 2002). The former chief of staff of President Clinton added that what could have been done was for the framers of the said law to come up with common sense modifications that would beef up national security without sacrificing a citizen’s right to exercise his or her First Amendment privileges (Podesta, 2002).
To emphasize his position, Podesta (2002) cited one specific application of the Act to current law enforcement practices of authorities such as the Federal Bureau of Investigation or FBI. Podesta (2002) stated that Section 206 of the USA Patriot Act of 2001 updates the wiretap authority or the domestic intelligence gathering power of the law enforcement sector. The previous Foreign Intelligence Surveillance Act or FISA requires a specific court order so as to monitor the communication system of a suspicious person.
However, the FISA requirement appeared to be more of a barrier for the FBI and other law enforcement agencies. Thus, the current Patriot Act legally permits a single roving wiretapping. This is where authorities such as the FBI, even in the absence of a court order, can legally monitor a suspected terrorist or any person with alleged terrorism connection to roam from one electronic device to another, such as from the suspect’s mobile phones, e-mail, landline phones, instant messaging, and other communication systems (Podesta, 2002).
Podesta (2002) emphasized that this modernized provision of the Act is significantly alarming. He further explained that, while the previous FISA authority necessitated law enforcement to establish the need to monitor the devices being used by the wiretap subject, Section 206 of the updated law does not require for such provision (Podesta, 2002). Podesta (2002) stressed that there is a need to ascertain first that the communication system being used by a person is suspicious prior to its wiretapping by law enforcement agents.
Such precautionary measure is important in order to prevent the said provision from being subject to violation of right to privacy and prevent law enforcers from committing possible abuses of the law. This way, the privacy of an unsuspected individual is ultimately protected. Podesta (2002) concluded that, while it is correct that the 9/11 terrorist attacks changed the position of those who previously opposed an unlawful electronic or communication monitoring, one’s privacy and other innate rights should not be compromised.
In addition, although there is indeed a need for modernized anti-terrorism efforts, it should not be forgotten that the primary reason for the enactment of the law is the objective of shying away from harassing people who just exercise their First Amendment privileges. As the new Patriot Act enhances the people’s confidence by having modern law enforcement tools that will ensure security, the more the public should be wary that such tools are not abused when applied to law enforcement (Podesta, 2002).
Podesta (2002) supported what the Electronic Frontier Foundation and Electronic Privacy Information Center had previously stated—that the modernized Patriot Act, with its application to law enforcement practices characterized by broadened surveillance tools such as wiretapping, issuance of search or arrest warrants, pen or trap subpoenas, and court orders, is not subject to a system of check and balance. It has also been noted by critics that a number of the provisions of the law are apparently just under the disguise of national security but in reality are mere measures that lack focus or distort the country’s anti-terrorism efforts.
Contrary to conventional law enforcement practices, provisions, such as those that are related to electronic surveillance and disclosure of private communication or violation of the inmate-counsel relationship, are inclined to violate privacy rights rather than guarantee the security of the country from terrorism. This premise specifically holds true when the implementations or interpretations of the law result in violations being committed against private and unsuspicious citizens.
