Patriot Act: To Serve And Protect?

Above is just a small representative of the spirited debate surrounding the American government’s controversial Patriot Act. In the wake of September 11, debates about the security of America flamed anew. Many individuals argued that certain sacrifices were necessary in order to make the United States a safer place to live. Others contended that no amount of security was worth sacrificing the basic principles on which America was founded: freedom and equality for all. Amidst the challenges, a sweeping bill was drafted which would significantly amend 15 existing laws and which would implement several controversial measures (“Summary of USA Patriot Act,” Synthesis). Attorney General John Ashcroft, despite warnings from opposing members of Congress, urged Congress to hastily pass the controversial bill. If not, he warned, blame for “imminent” terrorist attacks would fall at the feet of Congress. On October 26, 2001, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Instruct Terrorism Act of 2001—aka the USA Patriot Act—was signed into law by President George W. Bush (“The USA Patriot Act,” Electronic Privacy). Only 66 members of Congress voted against the bill; however, many worried that the act violated some basic civil rights (Olsen, “Patriot Act”). Has the Patriot Act fulfilled its promises, or validated its critics? The Argument for Safety Before examining some of the alleged abuses of the Patriot Act, let us consider its proposed benefits. Criminal and intelligence agencies hail the measures implemented by the act as breakthroughs in the fight against crime and terrorism. First, they say, technology demands that surveillance laws be updated to include electronic equipment. If terrorists now routinely use cell phones and e-mails to carry out their activities, then the intelligence agencies’ hands are affectively tied if they have no authority to conduct wire taps and such on electronic equipment (Eggen A01). Patriot Act-approved technologies such as the roving wiretap and the CARNIVORE system (monitoring Internet activity) allow sophisticated surveillance of these advanced technologies. (Hulme 22) Second, the Patriot Act imposes stiffer penalties for terrorist activities, and expands the list of crimes considered terrorist. For example, previous laws did not consider activities such as providing oral instructions on how to carry out an attack or providing financial backing to terrorists to be criminal offenses. As a result, the agencies have much less red tape to wade through (saving valuable time) in order to establish probable cause (“The USA Patriot Act,” Preserving). Law enforcement now also has more authority to prosecute hackers--cyber terrorists who could very well represent the future of terrorism. Service providers and network administrators now must cooperate with ongoing criminal investigations (Chidi, “Patriot Act”). With our world so dependent on computer technology, measures against cyber terrorists are more crucial than ever. Another coup for law enforcement agencies is the return of the delayed notice search warrant, which saves untold hours of time in criminal investigations. These warrants permit investigators to temporarily avoid informing a suspect that a search is imminent. Such warrants are important because they give the surprise advantage back to investigators. For example, if a drug dealer knows ahead of time that his premises will be searched, then conventional wisdom says that dealer may just clear out any potential damning evidence before the police arrive. In addition, witness and informant testimony often hinges on the promise of confidentiality— confidentiality which only delayed notice can ensure (“The USA Patriot Act,” Preserving). Another benefit of the Patriot Act is its role in forcing law enforcement and intelligence agencies within the government to share information more efficiently. Prosecutors now routinely share evidence obtained with intelligence officials. A Department for Homeland Security has even been formed. Prior laws limited the abilities of differing agencies to share information, which led to dangerous holes in knowledge and miscommunications. (“Summary of USA Patriot Act,” Synthesis) These measures have resulted in the conviction of hundreds of individuals who, if left on the streets, may have perpetuated the next 9/11 or worse. Among the victories claimed by the PATRIOT Act: * Libardo Florez-Gomez, a money launderer who provided over a million dollars a month in financial support to a Colombian terrorist/drug organization * Cyber-terrorist Rajib Mitra, who shut down a Wisconsin police department’s emergency services 21 times by jamming the emergency radio system * Alleged “shoebomber” Richard Reid, who was indicted on the new charge of “attempting to destroy a mass transportation vehicle” (he carried a bomb aboard a Miami-bound flight) (“The USA Patriot Act,” Preserving) The Patriot Act and Profiling Such tangible results speak to the effectiveness of the Patriot Act. However, valid criticisms of the measure cannot be ignored. Several cities have passed initiatives condemning the law, including (ironically enough) top terrorist target New York City (Garcia A11). Critics charge that the PATRIOT Act violates up to five amendments in the Bill of Rights (Van Bergen, “Repeal”). In annual six-month updates, the Justice Department consistently documents thousands of complaints concerning civil rights violations due to the law (Bohn, “Patriot Act Report”). Consider the following: * A Muslim inmate claims that FBI officials ordered him to “remove his shirt so that the officer could use it to shine his shoes. ” (Bohn, “Patriot Act”) * An Arab detainee charges that the FBI illegally searched his home in order “to plant drugs. ” (Sinnar 1423) * Another Arab detainee was asked by an immigration official if he “wanted to kill Christians or Jews. ” (Sinnar 1437) * During a doctor’s examination, a Bureau of Prisons officials told a detained immigrant that “If I was in charge, I would execute every one of you ... because of the crimes you all did. ” (Bohn, “Patriot Act”) Senator Russ Feingold voiced his concerns that immigrants would suffer greatly from enactment of the Patriot Act. In an impassioned speech, he warned his colleagues of upcoming discriminatory practices: “It won't be immigrants from Ireland. It won't be immigrants from El Salvador or Nicaragua. It won't even be immigrants from Haiti or Africa. It will be immigrants from Arab, Muslim and South Asian countries. In the wake of these terrible events out government has been given vast new powers and they may fall most heavily on a minority of our population who already feel particularly acutely the pain of this disaster. ” (“The USA Patriot Act,” Electronic Privacy) If the aforementioned incidents are any indication, then Senator Feingold’s worries about ethnic profiling may have become a reality. Among the changes implemented by the Patriot Act are a significant lowering of standards for foreign intelligence surveillance (Section 218). In other words, government officials can monitor any organization or individual that they feel pose a threat to national security (Sinnar 1419-1431). Who, critics claim, are most often the targets of these surveillance stings?... Arab Americans. Terrorist organizations, as has become ritual for the Patriot Act, are defined ambiguously: "group of two or more individuals, whether organized or not, that engages in committing, inciting, or planning a terrorist activity” (Section 411). As a result, the expanded definition of “foreign terrorist” organizations has come to include such dangerous groups as those engaged in non-violent protest of government policies. When an individual or organization is charged, prosecutors have license under the Patriot Act to use secret evidence (Section 213) gathered (a violation of the Sixth Amendment’s right to confront an accuser) (Van Bergen, “Repeal the USA Patriot Act”). In addition to increased surveillance of foreign nationals, questionable enactment of improvised immigration policies (Section 219) have been called into question. Shortly after the Patriot Act was signed into law, Attorney General John Ashcroft directed this comment toward those foreigners in America on visas: "If you overstay your visas even by one day, we will arrest you. If you violate a local law--we will hope that you will, and work to make sure that you are put in jail and be kept in custody as long as possible" (Olsen, “Patriot Act”). Once again, who was most singled out for these harsh words? Even some Arab Americans in the country for verified and legitimate work reasons have come under attack. And when intelligence gathering agencies are given free reign (not subject to the same due process standards that govern traditional criminal procedures), then those minorities “kept in custody as long as possible” may find themselves facing more problems than they could have ever imagined. The Seven-Day Rule of the Patriot Act gives officials the authority to hold a detainee for seven days without counsel (another violation of the Sixth Amendment). (Sinnar 1435-1442) In fact, Georgetown law professor David Cole, who has written a book on this very issue, estimates the number of foreigners placed in “preventive detention” (Section 412) under the Patriot Act at over 5,000. Of these 5,000, only four have been charged with a crime. And of those four, two were acquitted of all charges (McCollam NA). Immigrants who are deemed a threat (the “threat” in question is never clearly specified) are subject to immediate deportation with no hope for an appeal. Even those who are not deported can be held in custody indefinitely (and, as some claim, tortured), even if they have no suspected relation to ongoing terrorist activities (violation of the Eight Amendment’s prohibition of cruel and unusual punishment). In essence, the due process guaranteed by the Fifth Amendment becomes a non-issue (Van Bergen, “Repeal the USA Patriot Act”). What concrete and justifiable standards are set forth to determine who is detained and deported? Once again, vagueness is the name of the game: anyone suspected of terrorist activity “on reasonable grounds…. ” (Sinnar 1447-1451) What “reasonable grounds” have some INS officials found? According to American Muslim Union lawyer Sohail Mohammed, exchanges such as the one that follow (between an INS official and an Arab detainee) are more commonplace than anyone would like to admit: INS official: “You sound foreign. Show me your passport. ” The detainee, despite having been later cleared of any wrongdoing, spent four-and-a-half months in jail. The last words he heard from the INS official were “Why do you make your women wear those things? " (Adas 57) The Patriot Act and Privacy Moving away from the dangers of ethnic profiling imposed by the Patriot Act, what about larger issues of privacy…. issues that have the potential to affect every American citizen? Regarding these concerns, politics truly do make strange bedfellows. From liberal watchdogs such as the ACLU to some of the most Conservative Congress members of today, abuses of individual privacy are foremost on the minds of Patriot Act critics. One controversial provision (Section 215) grants the FBI authority to demand nearly any type of information about an individual imaginable: medical history, business records, gun purchases, even Internet use patterns. Such a subpoena is possible even in the absence of suspected terrorist activities. Section 505 seems to cover all of those areas which 215 neglects, including financial documents, telephone bills, e-mail trackings, and credit reports (“Rights Advocates,” EWeek). Another long-standing subject of controversy which predates the Patriot Act is the hotly contested CARNIVORE technology, which allows for tracking of Web surfing habits and e-mail messages (Olsen, “Patriot Act”). Even libraries (traditionally shielded from providing confidential information on its patrons) must turn over records if they are found to possess “any tangible things” (more of that oh-so-clear wording) relating to a suspect. Likewise, any public computer is subject to surveillance, which overturns preexisting communication-intercept laws (such as the Title III) prohibiting such surveillance (“The USA Patriot Act,” Electronic Privacy). Arguably most controversial in the privacy debate is the Patriot Act’s authorization of pen registers and “trap and trace” devices (recording numbers dialed from an online connection). Both pieces of equipment are sophisticated surveillance devices that amount to electronic/online wire-tapping. Once again, the only criteria for such surveillance is that the activities be “relevant to an ongoing criminal investigation” (“Patriot Act,” ACLU). The Solution? Would a complete abolishment of the Patriot Act truly accomplish more than a revamped, more efficient, Patriot Act? Several measures could be taken which would make the Patriot Act and other such safety measures more palatable to critics. For instance, the Freedom of Information Act guarantees the American public an opportunity to review documents important to its own well-being. Yet efforts to disclose important documents have been met with Congressional resistance in the past (“The USA Patriot Act,” Electronic Privacy). If any law should be expanded (and not subject to the whims of a selected few), then it is the Freedom of Information Act. An informed public could provide the most powerful check and balance of all to government abuses. Most of the public does not truly understand the Patriot Act because the document itself is worded ambiguously. For example, search and seizures are authorized if authorities can discover a “significant purpose. " Are such “purposes” a tip about weapons that the suspect possesses? Or do the “purposes” include the suspect’s ethnic origin? Such a question is not so outrageous, because the word “purpose” is never defined within the document. These vague wordings are populated throughout the PATRIOT Act (Van Bergen, “Repeal the USA Patriot Act”). If Americans truly understand what is imposed upon them by the Patriot Act, then they would likely be tempted to expand the Sunset Provision (terminating many of the electronic surveillance measures on the last day of 2005) to the act as a whole (“The USA Patriot Act,” Electronic Privacy). Then, a newer, more clearly worded and efficiently written bill (taking into account recommendations from the 9/11 commission) can take its place. A few alternative bills have also been introduced that are worthy of further investigation. For instance, the Security and Freedom Ensured (SAFE) Act would set a more stringent standard for obtaining search warrants, ie with “specific and concrete facts” that prove the individual is a likely terrorist or other criminal. This act would also add more privacy protections for library users. Two other proposals, however, would prevent the seizure of library and bookseller records, which are two of the most hotly contested issues in the Patriot Act debate (Pike 17- 18). Once again, proof and court review are important determinants or seizure. These two checks and balances would reintroduce respect for privacy into safety measures (“The USA Patriot Act,” Electronic Privacy). The preceding proposals address the problems of privacy found within the Patriot Act, but what about allegations of ethnic profiling? Racism and prejudice will always exist in some form. However, we can take away some of the legal “excuses” for these actions by adopting stronger immigration policies. Political candidates often soft-pedal this issue, perhaps out of fear of offending potential minority voters or perhaps due to the “cost savings” some businesses (and political backers) gain with the employment of illegal aliens. Whatever the case, this issue needs to be in the forefront of policy change. If the government has a better grip on who is entering and leaving this country, then ethnic profiling—in large part an effort to “track down” all of the illegal immigrants crossing the borders—becomes null and void (McCollam NA). Concerning those minorities native to America, perhaps a revised version of Proposition 54 (which would have eliminated the government’s right to gather racial/ethnic information for statistical purposes or otherwise) would diffuse some of the racial boundaries evident in America (“Proposition 43,” Racial Privacy). An alternative magic bullet will not solve the all-too real problem of terrorism. Safety and liberty are not mutually exclusive aims…. the history—the very basis— of our country attests to this fact. The Patriot Act has worked. The Patriot Act can continue to work, but not without significant revision. We owe it to ourselves to find that balance. And we owe it to victims of terrorism worldwide past, present, and not in the future.

WORKS CITED

  • Adas, Jane. “New York Congressman Nadler Calls USA PATRIOT Act Extreme Danger to Civil Rights. ”  
  • Washington Report on Middle East Affairs 21:  2157-58. Bohn, Kevin. “Patriot Act Report Documents Civil Rights Complaints. ”
  •  CNN. Accessed November 24, 2007. Available http://www. cnn. com
  • Chidi, George. “‘Patriot Act’ Aids Law Enforcement. ”  Network World Fusion. Accessed December 24, 2007. Available