(The following is a research paper I completed for an English Composition course, reproduced in its entirety.)
USA PATRIOT Act: An Examination
In the aftermath of the terrorist attacks of September 11th, 2001, a wave of homeland security and anti-terrorism legislation was passed by Congress. Among these was HR 3162 RS, more commonly known by the cognomen of the USA PATRIOT Act. The USA PATRIOT Act, simplified hereafter as the Patriot Act, is one of the most controversial pieces of federal legislation in recent years, due in part to the extensions it provides to executive authority. Among these extended authorities are the ability of executive branch to search personal records held by third parties, the power to conduct searches in secrecy, as well as an expansion to previous wiretapping methods.
These expansions could be characterized as contrary to the spirit and letter of the Bill of Rights, particularly the Fourth Amendment. This Amendment, which guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” is the foundation for the American sensibility regarding the rights of the accused. The potential illegality of the Patriot Act’s provisions is therefore all the more grave, and makes the necessity of either revision or repeal all the more urgent.
The primary argument supporting the Patriot Act is its vital role in the defense of America against future terrorism. The proponents of the Act assert that the increased surveillance powers granted to the executive branch are vital to the defense of the United States. According to an article titled, “The USA PATRIOT Act: Preserving Life and Liberty,” published on a government website designed to support the position of the Patriot Act, the Act aided in “[t]he government’s success in preventing another catastrophic attack on the American homeland since September 11, 2001.” Due to the secret nature of these investigations, it is impossible to verify this claim of increased security. Even as an open democracy, there are some documents and findings that must understandably remain secret to ensure the safety of our country. However, to claim that the Patriot Act and related legislation is helping in this process without providing concrete support and real examples in which it was successfully applied is erroneous and unverifiable. As such, it is the prospect of supporters of the Patriot Act to accept the word of the government without actual proof, something most citizens are not likely to concede in a modern nation.
The first source of the problem within the Patriot Act revolves around the ability of the executive branch to search personal records. According to Section 215 of the Act, this expanded power permits government officials to “make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items),” which must in turn be confirmed by a special court. This access to personal documents allows investigators to gain warrants to find out what we read, what we watch on television, who we talk to, and how we live our everyday lives. Although likely intended in the best interest of pursuing potential terrorists, the razor-thin line between such enhanced measures and an Orwellian police state draws ever closer. Although a judicial check is placed upon this power, the lack of accountability of such federal “special courts” to the general public could potentially negate this otherwise mitigating factor to executive control.
For example, in the article “Gag Order on 'John Doe' Lifted,” published in Library Journal, a prominent trade publication for librarians, a troubling implementation of this power is described by journalist Norman Oder; four Connecticut librarians were issued a gag order in response to a federal investigation. This group, known to the public and media at large simply as “John Doe,” succeeded in defeating the gag order in court, although the residing judge allowed for appeals from the federal government. According to Oder, a revision in the PATRIOT Act that occurred in 2004 now allows for individuals who have received gag orders “to challenge such National security Letters [sic], but they would have to wait a year, and the FBI would have discretion to dismiss the challenge for national security reasons.” That executive control over judicial processes remains in effect even after a revision in the Act is somewhat odd; the new ability to dismiss challenges outright makes the revision seem somewhat superficial.
In a follow-up report published in the Library Journal on April 1, 2007 titled “Criticism Over Patriot Act Use,” Oder describes a broader trend that seems to color the Section 215 document seizures; in the article, he states that “the FBI began using Section 215 authority more widely in 2006, and it's unknown how often [National Security Letters] have been used to gather information from libraries.” This lack of accountability is worrisome in an open democracy. Public knowledge is an important preventative measure to administrative abuse, and an entirely independent executive power has the appearance of impropriety.
It has been argued by supporters of this provision that the gag orders are justifiable. The article “The FBI's Secret Scrutiny” in the November 6, 2005 issue of The Washington Post includes a response to the arguments for public knowledge. Michael Mason, then Assistant FBI Director in the Washington Field Office (he has now been promoted to Executive Assistant Director), was quoted as saying, “I don't necessarily want somebody knowing what videos I rent or the fact that I like cartoons... But if those records are never used against a person, if they're never used to put him in jail, or deprive him of a vote, et cetera, then what is the argument?”
Assistant Director Mason's penchant for cartoons aside, this lax attitude of the insignificance of personal freedoms is perhaps fallible. That the records are “never used against a person” begs the question of why they are seized at all; if the process is as inconsequential as Mason expresses, the invasion of personal freedom can easily take precedence over investigations that have no admissibility in court. Although Mason may be willing to surrender his personal liberties for the benefit of investigations, not everyone has personal assurance as to how that information is handled.
To suggest that these gag orders and the contents of these searches be immediately made available is perhaps naive, but moderation between complete secrecy and absolute frankness could be struck. Perhaps the FBI and other agencies should be required to at least provide the quantity of gag orders applied for each year, and be supervised more carefully by the judiciary. If it is discovered that the matter being investigated is unrelated to national security, it is within reason to ask that the Justice Department be obligated to release the exact information regarding the National Security Letters, gag orders, and other executive authorities it exercised.
In addition, the Patriot Act has endowed executive branch officials with the ability to perform searches in secrecy. According to a study titled “Surveillance under the USA PATRIOT Act” by the American Civil Liberties Union, these new provisions allow for the government to “enter a house, apartment, or office with a search warrant when the occupants are away, search through their property, take photographs, and in some cases even seize property – and not tell
them until later.”
Such an allowance undermines the fundamental right of an accused party to face their accusers; the article goes on to highlight that this provision “has nothing to do with fighting terrorism,” a troubling fact. When normal police investigations can utilize this bypass to uncover evidence and only inform the accused party after the fact, the potential for further encroachment and abuse is more significant than otherwise. If the provision was limited to terrorism related investigations, it would perhaps be a more acceptable premise. As it stands, the “sneak and peek” investigation model could shake the foundation of the American justice system.
A notable abuse of the “sneak and peek” search was described by David Sarasohn in his article “The Patriot Act on Trial,” found in September 26, 2007 issue of the oldest continuously-published weekly magazine in the United States, The Nation. Apparently, during the course of a terrorism-related investigation, the FBI misled a federal judge to obtain a “sneak and peek” search warrant for Brandon Mayfield, a recent convert to Islam and a trial lawyer. Mayfield, a lawyer, had previously represented a person later convicted of terrorism-related charges in a custody case; he was also under initial suspicion from the government of Spain for connections to the March 2004 terrorist attacks in Madrid. Although the Spanish government eventually decided that Mayfield was not connected due to a mistake in fingerprinting, the FBI disregarded the report and claimed Mayfield's fingerprint was a “100 percent match.”
Soon after, Mayfield was detained as a “material witness” and kept under tight surveillance. After three weeks and an eventual match by Spanish investigators to an Algerian man, the FBI released Mayfield. However, this would not be the end of legal troubles for Mayfield; apparently, during his detention as a material witness, the FBI had secretly searched his home. According to a Justice Department report cited in the article, the following notification was eventually given to Mayfield:
Mr. Mayfield is hereby notified that the following property was seized, altered or reproduced during [Foreign Intelligence Surveillance Act] searches of his residence: three hard drives of three desktop computers and one loose hard drive were copied; several documents in the residence were digitally photographed; ten DNA samples were taken and preserved on cotton swabs and six cigarette butts were seized for DNA analysis; and approximately 335 digital photographs were taken of the residence and the property therein.... Mr. Mayfield is also hereby notified that he was the target of electronic surveillance and other physical searches authorized pursuant to FISA.
That such extensive measures were taken against a man who was entirely unconnected to the incident that he was detained for, and that the connection had already been refuted by the Spanish government, highlights the disturbing potential that the expanded FISA powers grant federal investigators. Understandably, Mayfield launched lawsuits against the federal government in response to the searches, though it will likely take several years, many appeals, and an inordinate amount of money before any clear resolution is reached.
The expansion of wiretapping abilities provided by the Patriot Act has also come under particular scrutiny. Although an existing exception to wiretapping laws existed to allow investigators to monitor foreign communication in the defense of the United States, the Patriot Act expanded this authority to allow these sorts of investigations to be applicable to domestic cases, according to the ACLU. Although these wiretaps are legally mandated to be approved by yet another special court, the lack of accountability and public record produced by this institution make it appear to be more of a hollow nicety than an impartial arbitrator.
According to the text of § 1803, subchapter I, Chapter 36, Title 50 of the Federal Intelligence Surveillance Act, the courts that monitor these communications are even one step further removed from public scrutiny and accountability. These special courts are to “be maintained under security measures established by the Chief Justice in consultation with the Attorney General and the Director of National Intelligence,” combining judicial and executive duties in an effort to preserve national security. However, outside of the general issuance of a warrant in conjunction with the FISA court, there is little other responsibility or oversight from the judicial branch. Unlike typical warrants, those granted through a Federal Intelligence Surveillance Court do not require a list of objects or information taken during the investigation to be submitted afterward, a fact that essentially grants investigators free reign.
A technique that has come under particular scrutiny regarding the expansion of wiretapping authority is data mining. As defined by Joe W. Pitts of The Washington Spectator in his March 17, 2007 article titled “The End of Illegal Domestic Spying? Don't Count on It,” data mining is the “automated review of significant quantities of data to discern patterns and predict and influence behavior.” Pitts goes on to state that such information searches operate under the assumption that information related to terrorist communications would be easily distinguishable from the bulk of information that such automated reviews would inherently draw.
A criticism of data mining can be drawn from this. The collection of bulks of information from citizens, even if it is inadmissible in court and is to be sorted by an automated system, once again positions the investigators into a precarious position. As a broad interpretation of the FISA Act and the expanded powers granted by the Patriot Act, data mining collects information from private citizens and analyzes it, something that could be perceived as a violation of the Fourth Amendment. Moreover, the data gained through data mining is noted by Pitts to be unreliable, as “mission creep (e.g., from counter-terrorism to tax collection or fighting crime generally), human errors in interpretation, terrorist-incident data sets too small to be useful as valid predictive models, false positives, and privacy concerns” all decrease the value and justifiability of this technique.
Even outside of data mining, wiretapping as allowed through the Patriot Act is controversial. In the 2006 renewal of the Patriot Act, a new proviso allows investigators to wiretap businesses suspected of monopolistic behaviors, according the article “Boardrooms Crawling with Bugs?,” published in the magazine BusinessWeek. Obviously outside the scope of the original intentions of the law, the application of measures related directly to national security to civilian matters are precisely the type of “power creep” that some opponents of the Patriot Act have warned about. As the BusinessWeek article notes, these wiretaps could potentially pose a serious threat to the practices of corporations, allowing trade secrets and corporate information to be placed into public record.
In times of crisis, it is understandable for a government to act in haste in order to provide a sense of security and safety to its people. The Patriot Act is a prime example of a quickly conceived and hastily passed piece of legislation, but its effects were neither temporary nor entirely reassuring. That the Patriot Act has been renewed and extended past its deadline repeatedly by Congress, and that it has been expanded to further encroach upon the freedom of speech, the right to face an accusing party, and the right to privacy, is all the more troubling.
When private phone calls, personal property, and corporate board meetings (all of which belong to innocent individuals) become part and parcel to the operating procedures of federal agencies such as the FBI and the NSA, it becomes all the more evident that the ramifications of the Patriot Act and its hazy interpretations and implementation have not been fully evaluated by either lawmakers or the American public.
As such, there are a number of solutions that could be implemented by lawmakers to reconcile the infractions on personal freedoms imposed by the Patriot Act. Absolute and immediate repeal, although the simplest method of negating the Act, is also the most unlikely to occur. A more reasonable solution would be for Congress to allow the provisions of the Act to expire, rather than continuously renewing them. Furthermore, the further expansion of Patriot Act powers, notably the application of previous methods to corporate practices, fragment the argument of the Act's necessity and limitations.
In this nation, people are considered to be innocent until proven guilty. This fundamental aspect of our legal system is placed in jeopardy by the Patriot Act's provisions. If the government is allowed to circumvent the Bill of Rights in order to secure questionable evidence, even in the interest of national security, then there is no practical preventative measure to protect the people from the actions of the government. The accountability of elected officials to the populace is the key safeguard in keeping the government honest, and as such gag orders, NSLs, and “sneak and peek” searches all threaten the foundations of the democratic process.
Moreover, if the American people as a whole are to accept that the Patriot Act is designed to protect against terrorist attacks, intelligence agencies should release information proving such under the provisions of the Freedom of Information Act. Administration officials would likely win more support for the Patriot Act and its other programs in the “War on Terror” if it provided concrete proof of its past successes; since it is clear that the methods proscribed in the Patriot Act have been enacted, should not the positive results be presented to justify its measures?
In short, although the goals of the Patriot Act were deeply rooted in the troubling times surrounding the terrorist attacks on September 11, 2001, the lag in the War on Terror and the slow creep of executive powers granted by the Patriot Act have raised serious questions about the relevance and necessity of the Act. As the Patriot Act prevents, in many ways, the release of proof that justifies its perpetuation, the American people are expected simply to rely on the honesty of their government in lieu of actual accountability. What is perhaps more troubling is the general undertones of the “ends justifying the means,” both within the Administration's handling of the Patriot Act powers and with its response to global terrorism; should we stoop to that distorted vision of morality? Is our rationalization and methodology worth the loss of our autonomy?
Where in the Constitution do the Founding Fathers describe shadowy courts that idly approve domestic spying? Where does it provide for the executive branch to suspend the rights of the accused, to override judicial authority, and to conceal from the American people their activities? How does the spirit of fear, secrecy, executive oversight, and the loss of personal freedom contribute to a safer nation? Every American who makes a phone call overseas, checks a potentially controversial book out of the library, or a myriad other everyday activities would heed well the advice of Founding Fathers. In the often-misquoted words of Benjamin Franklin (as clarified by researcher Gary Frost), “Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.”
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Works Cited
American Civil Liberties Union, "Surveillance under the USA PATRIOT Act". Elements of Argument. Boston: Bedford/St. Martin's, 2006.
Franklin Quoted by Minsky. Gary Frost. March 30, 2004. futureofthebookd.com. April 27, 2006.
http://www.futureofthebook.com/stories/storyReader$605
Gellman, Barton. "The FBI's Secret Scrutiny." The Washington Post 06 Nov 2005 A01. 12 Apr 2007
Goldberg, Bernard. "Connecting the Dots... to Terrorism". Elements of Argument. 194-201. Boston: Bedford/St. Martin's, 2006.
Oder, Norman. "Criticism Over Patriot Act Use.” Library Journal 1 Apr. 2007: 14-13. Research Library Core. ProQuest. 11 Apr. 2007
Oder, Norman. “Gag Order on 'John Doe' Lifted” Library Journa1 May 2006: 22. Research Library Core. ProQuest. 11 Apr. 2007
Pitts, Joe W. "The End of Illegal Domestic Spying? Don't Count on It." The Washington Spectator 15 Mar. 2007. ProQuest. Illinois Central College. 12 Apr. 2007
Sarasohn, David. "The Patriot Act on Trial." The Nation 26 Sep. 2005 28-29. Research Library
Core. ProQuest. 12 Apr. 2007
United States Cong. Senate. 107th Congress, 1st Session. H. R. 3162, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 [introduced in the U.S. Senate, 24 October 2001].
Woellert, Lorraine. “Boardrooms Crawling With Bugs?” Business Week 8 May 2006: 14. Research Library Core. ProQuest. 13 Apr. 2007
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