The USA Patriot Act of 2001 is a controversial public policy, which greatly undermines the civil liberties and constitutional freedom of the American people. This essay will moved from an overview of the USA Patriot Act to a review of the critical literature regarding the importance of the Act to the safety of Americans and shows how the Act violates the civil rights and liberties of citizens and noncitizens alike. After presenting sufficient evidence that the Patriot Act violates many of the basic principles that have been articulated in the U.S.
Constitution, particularly within the Bill of Rights, I will, propose recommendations that if implemented scrupulously could help to restore American confidence in government’s determination to continue functioning as the protector of civil liberties and rights. In the wake of the worst terrorist attacks in U. S. history on September 11, 2001, just six weeks later with little Congressional resistance or analysis; the U. S. Congress passed into law the USA Patriot Act.
The Patriot Act titled “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism” granted an unprecedented and vast power to federal investigative services, which greatly undermines the civil liberties and constitutional freedom of the American people. The main objective of the Patriot Act is “to deter and punish terrorist acts in the U. S. and around the world, to enhance law enforcement investigatory tools, and for other purposes,” (Act, 2001, p.1).
Despite this purpose, the Act represents both good and bad points with respect to fighting terrorism and negative consequences on the civil liberties of U. S. citizens. For the most part, I believe the USA Patriot Act does little to combat terrorism and represents a threat to the liberties of the American people. There is no denying that the hastily passed Patriot Act does have provisions and measures that help the U. S.
Government expand its surveillance of suspected terrorists and their activities. For example, Section 101–Establishes a new counter terrorism fund without fiscal year limitation and of unnamed amount, to be administered by the Justice Department for its own use. Section 103–Re-invigorates the Justice Department’s “Technical Support Center” (established by the Anti Terrorism and Effective Death Penalty Act of 1996) and gives it $200 million for each of the next three years, 2002 through 2004.
Section 105: Establishes a “national network of electronic crimes task forces” to be set up by the Secret Service throughout the country to prevent, detect, and investigate various electronic crimes “including potential terrorist attacks against critical infrastructures and financial payment systems”–which can mean a wide variety of computer crimes. (Michaels & Van Bergen, 2002).
Moreover, section 203 of the Act combined forces of domestic law enforcement and foreign intelligence, previously separate “collection operations on separate tracks,” (Podesta, 2002, p. 2). Furthermore, the Act provides U. S. authorities with expanded powers to freeze suspected terrorist assets in foreign countries and increases their ability to gain access to offshore banking records. The Act amended what is known as the Bank Secrecy Act. The funding of terrorism is a criminal offense and those who fund terrorists are often able to conceal their activities.
The Act is good in resolving this issue, as Section 312-319 stipulate as follows: (1) sets a 120-hour deadline for financial institutions to respond to certain information requests by federal investigators involving wide range of accounts; (2) creates new forfeiture provisions for those charged or convicted of certain terrorist crimes especially including money laundering, setting forfeiture authorities virtually unheard of in federal law to this point, and (3) permits access by federal investigators of records of certain “correspondent” accounts with foreign banks. (Michaels & Van Bergen, 2002).
To facilitate the job of the Justice department and other federal agencies involved in this counter terrorism mission, the Act makes it mandatory upon banks and domestic financial entities a new “minimal” and “enhanced” due diligence requirements on certain accounts, as a way of revealing possible use of accounts for terrorist financing. In addition, Section 412 of the Act provides for mandatory detention of suspected aliens, lists seven bases for such detention, allows a person to be held for seven days without any charge, permits possible indefinite detention for aliens deemed not removable, and ensures limited court review.
Despite these and other positive aspects of the Act, which do, indeed, help U. S. officials combat terrorists and their activities, many other provisions violate civil liberties, the U. S. Constitution, and jeopardize the privacy of U. S. citizens without recourse for challenge. The arrest of “suspected” terrorists or their sympathizers has seen the arrest and detention of many Americans without due process of law. Basic rights of privacy have been eroded by the Act, including expanded search and seizure and surveillance laws.
Responding to the Patriot Act, groups such as the American Civil Liberties Union (ACLU) (Congress takes aim, 2003) have filed legal challenges to the Act and have worked to lobby members of Congress to reconsider many of its provisions. The ACLU has argued that measures contained in the Act such as the right to obtain so-called “sneak and peak” warrants under a low evidentiary standard are direct violations of the intent and principle of Fourth Amendment protections.
The Fourth Amendment was designed to protect the public against unreasonable searches and seizures. Consequently, law enforcement officials have until passage of the Patriot Act have needed to present a reasonably strong case to a court in order to obtain a warrant to enter a private home or business, confiscate certain types of property, or eavesdrop electronically on private conversations and communications.
An ACLU spokesperson maintains that the Act represents “an overnight revision of the nation’s surveillance laws that vastly expanded the government’s authority to spy on its own citizens, while simultaneously reducing checks and balances on those powers like judicial oversight, public accountability, and the ability to challenge government searches in court,” (Surveillance, 2005, p. 3). From arrests without evidence to random search and seizure, the Act represents a potential danger to the rights and civil liberties of the American people much more than it helps as a practical tool in combating terrorism.
Consequently, cities across the United States, according to Schabner (2003), have begun to revolt against provisions of the Act, saying that it gives law enforcement too much power and threatens civil rights. In Massachusetts, the cities of Cambridge, Northampton, and Amherst and the township of Leveret have passed resolutions characterizing the Act as a threat to the civil rights of community residents. Berkeley – California and Ann Arbor – Michigan have also adopted such resolutions, while police in Portland and Oregon have refused to cooperate with the FBI on investigations of Middle Eastern students in their city.
Schabner (2003) states that these resolutions and actions may be largely symbolic in that local governments or agencies have no authority to compel federal law enforcement to comply. Many Americans and units of government are concerned that the Act goes too far. For example, libraries, workplaces, private homes, schools, and other institutions which have e-mail services available to the public or a PC owner are vulnerable to surveillance by federal agencies (Sanders, 2003).
The legislation enables the FBI to require libraries and other institutions to turn over data on individual activity, including book purchases and library check-outs, e-mail traffic, and so forth – all without a showing of probable cause. The problem, says Robert Levy (2003) of the Cato institute, is that while the rationale for the Act and expanded investigative powers is that national security is at stake, the provisions of the Act are already being employed in matters that have little to do with terrorism or anti-terrorism investigations.
Nancy Talanian (2002), a spokesperson for the Bill of Rights Defense Committee, identified the effects of the Patriot Act with respect to specific Amendments contained in the Bill of Rights. It is with respect to these basic civil liberties and protected rights that the policies changed by the Act will have the most impact. Earlier in this report, an overview of Fourth Amendment effects was offered, but Talanian (2002) pointed out that the Patriot Act also affects the First Amendment, Fifth Amendment, Sixth Amendment, and Eighth Amendment.
The First Amendment prohibits the making of any law “respecting an establishment of religion”, impeding the free exercise of religion, infringing on the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble or prohibiting the petitioning for a governmental redress of grievances. (Talanian, 2002, p. 2). ” As elucidated elsewhere in this paper, the Patriot Act is a complete violation of the First Amendment.
The Fifth Amendment reads “no person shall be held to answer for a crime unless on a presentment or indictment of a Grand Jury, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law (Talanian, 2002, p. 7). ” The Patriot Act removes the requirement of obtaining judicial permission before listening in on conversations between prisoners and their attorneys, thus forcing prisoners to effectively be a witness against himself or herself.
The Act establishes trials by a military tribunal at the discretion of the president for noncitizens, denying due process of law and permitting secret evidence and hearsay to be used against the accused. Talanian (2002) contends that the Fifth Amendment is impacted because the Patriot Act allows a committee composed of the Attorney General, the Secretary of Defense, and the CIA Director to label citizens and on citizens as “enemy combatants” placing them in military custody, holding them indefinitely, interrogating them, and denying them communication with outsiders or judicial review.
Further, the FBI gains the ability to monitor and survey religious groups and political groups without evidence of wrongdoing, potentially compelling an unsuspecting participant in such gatherings to be a witness against himself. Finally, the broad powers given to the Attorney General to certify immigrants as risks deprives immigrants of liberty without due process of law. The effects of the Patriot Act on the Sixth Amendment are also significant.
The Sixth Amendment establishes the right to a speedy and public trial by an impartial jury of the state and district where a crime is alleged to have occurred; the right to be informed of the nature and cause of an accusation; the right to be confronted with witnesses, and the right to have compulsory process for obtaining defense witnesses and the assistance of counsel in constructing a defense (Talanian, 2002). Under the Patriot Act, each of these rights are suspended. Similarly, the Eighth Amendment prohibits excessive bail, excessive fines, and the infliction of cruel and unusual punishment.
As Talanian (2002) has commented, Section 412 of the Patriot Act gives the Attorney General broad powers related to mandatory detention of suspected terrorists and suspension of habeas corpus and judicial review. This has the potential to result in the cruel and unusual punishment of deportation. Taken together, Talanian (2002) asserts that each of these attacks on civil liberties and rights guaranteed by the Bill of Rights creates a situation in which the Executive Branch enjoys excessively broad discretionary powers.
As public policy, therefore, what the Patriot Act does is that it effectively undermines the fundamental tenets of the American democratic system. With the possible exception of some critics, there are few in the United States today in and out of government who do not believe that terrorism continues to present a very real threat to national security – or that government has both the obligation and the responsibility to take affirmative action to protect the security of the nation and its citizens.
However, allocating virtually unlimited powers to the Executive Branch, with the potential to permit dilution of the rights and liberties guaranteed by and enshrined in the Constitution, is not appropriate and may well be extremely threatening to the American democratic system. Consequently, alternative policies must be examined. Among these alternative policies is the elimination of the provisions within the Patriot Act that seek to reduce the oversight authority of courts with respect to all types of surveillance.
Schabner (2003) intimated this abuse of power is not necessarily out of any deliberate attempt to diminish civil liberties but rather in an overzealous effort to identify potential terrorists or other criminals. By requiring that federal investigative agencies follow standardized procedure for obtaining court warrants for surveillance activities and showing probable cause; greater attention to the right of individuals to be free from excessive searches and seizures will be established and guaranteed.
A second policy initiative is the creation of a Congressional task force or oversight committee that works directly with the coalition of federal investigative agencies headed by the Department of Justice. Creating a mechanism for Congressional involvement in the activities of these task forces will help to restore the balance of power within the government as provided for by the Constitution. Michaels and Van Bergen (2002) believe that creating coalitions of this type will help to render the entire process of combating terrorism more transparent.
Transparency will also introduce new elements of accountability and help to prevent any Executive Branch abuses of new powers. To maintain the provisions of FIS and to ensure equality between the various organs of government, section 218 of the Patriot Act should be eliminated. Under FISA, a specifically created federal court must approve electronic surveillance of citizens and resident aliens believed to be acting on behalf of a foreign power (Levy, 2003). Under FISA, approval for a warrant is lower than probable cause but higher than other standards.
Finally, the Patriot Act must have the provisions regarding Executive Branch powers of detention removed. Under Section 412 of the Act, noncitizen suspects linked to possible terrorist activities can be held without counsel for seven days. The Act effectively allows expanded detention simply by permitting a detainee to be charged with a technical violation (Van Bergen, 2002, 2002 b, 2002c, 2002d). Levy (2003) contends that more than 1,000 detainees to date may have been denied access to their attorneys under this section of the Act.
The USA Patriot Act does little to combat terrorism and represents a threat to the liberties of the American people. Since the passage of the USA Patriot Act, there have been numerous terrorist attacks around the world. The worst terrorist attack after 911 was the Fort Hood killings right here in the U. S. While legislation like the Patriot Act is required to help provide authorities with the tools they need to combat terrorism, such legislation must endure lengthy congressional review, public debate, and stop at the place where U. S. citizen’s rights and civil liberties begin.
If not, we risk creating a government whose ultimate power may represent more of a threat to the American people than any terrorist group. This essay has moved from an overview of the USA Patriot Act to a review of the critical literature regarding the importance of the Act in relations to the potential of the Act to lead directly to violations of the civil rights and liberties of citizens and noncitizens alike. The unintended and intended public policy consequences of the Act have been analyzed, along with recommendations for perfection of the Act.
As a type of public policy, there appears to be sufficient evidence that the Patriot Act violates many of the basic principles that have been articulated in the U. S. Constitution, particularly within the Bill of Rights. Because this is the case, it is now important to reconsider whether or not the Patriot Act should be allowed, modified or to remain in place. American Civil Liberties Union (ACLU) is the leading organization calling for fundamental changes in the Patriot Act. The policy recommendations presented above address the fundamental changes to Americans’ legal rights that are contained in this Act.
Schabner (2003b) has suggested that these types of changes to the procedures outlined or permitted in the Patriot Act can help to restore American confidence in government’s determination to continue functioning as the protector of civil liberties and rights. References: 1. The Bill of Rights. (1996). Available at http://memory. loc. gov/const/bor. html. 2. FBI oversight hearing prologue to expected report slamming agency. (2003). Available at www. aclu. org/news/NewsPrint. cfm? ID=13197&c=206. 3. Michael C. W. , & Van Bergen, J. (2002). The USA PATRIOT Act: Part I. Available at http://truthout.
com/docs_02/11. 1512. jvb. cm. usapa. 1. p. htm 4. Schabner, D. (2003). Patriot revolution? Available at http://abcnews. go. com/sections/us/DailyNews/usapatriot020701. html. 5. Schabner, D. (2003b). Conservative backlash. Available at http://abcnewsgo. com/sections/us/2020/conservatives_ patriot030312. html 6. Surveillance under the USA Patriot Act. American Civil Liberties Union. Viewed on Aug 3, 2005:http://www. aclu. org/news/NewsPrint. cfm? ID=12126&c=207,1-2. 7. Talanian, N. (2002). A guide to provisions of the USA PATRIOT Act and federal executive orders that threaten civil liberties.
Available online from the Bill of Rights Defense Committee at www. bordc. org. 8. USA PATRIOT Act. (2001, Oct 24). HR 3162 RDS, 107th Congress (1st Session). Viewed on Aug3,2005:http://www. epic. org/privacy/terrorism/hr3162,html 9. Podesta, J. (2002, Winter). The good, the bad, and the sunset: USA PATRIOT Act. Human Rights Magazine, 1-5. 10. Van Bergen, J. (2002). Repeal the Patriot Act. Available at www. truthout. org/docs_02/04. 02A. jvb. Patriot. p. htm. 11. Van Bergen, J. (2002b). Repeal the Patriot Act, Part 2. Available at www. truthout. org/docs_02/04. 03D. jvb. Patriot. p. htm.