Impact of the U.S.A. PATRIOT Act on Law Enforcement
Impact of the U.S.A. PATRIOT Act on Law Enforcement
A number of legislative bills and provisions were considered by the U.S. Congress in the aftermath of the September 11, 2001 attacks on the New York World Trade Centers and the Pentagon (Wong, 2006a). With close to 3,000 Americans having lost their lives in the attacks, the public and its representatives wanted to do whatever was possible to prevent a recurrence. The most controversial bill to make its way through Congress was the U.S.A. PATRIOT Act (referred to here as the Patriot Act), which expanded the powers of domestic law enforcement (H.R. 3162, 2001). This act was signed into law by then President George W. Bush just 45 days after the attacks, on October 26, 2001 (Wong, 2006a).
Interpretations of what the Patriot Act did for law enforcement differ significantly depending on who is asked. The Department of Justice (DOJ) claims that existing laws were changed little, except for some minor retrofitting to combat terrorism (DOJ, n.d.). To bolster the perception of legitimacy and need, the DOJ cited the almost unanimous Congressional support for its passage, with 84 and 99% of the House and Senate, respectively, voting in favor of the bill. A contrasting view is presented by Kam Wong (2006b), who mentions that the bill was rushed through the legislative process by the administration by avoiding normal legislative procedures. For example, the relevant agencies did not review it, no public hearings were held, a floor debate did not occur, conferences were not held, and multiple revisions did not emerge from the process. In fact, individual representatives and senators routinely delegated their authority and oversight responsibilities to the administration and congressional leaders, by simply voting for the bill without actually reading it.
In light of this controversy, which is still ongoing, it seems important to try and determine what actually happened to U.S. law and law enforcement policies in the aftermath of the 9/11 attacks. Towards this goal, this essay will examine this issue from the perspective of both advocates and detractors to try and get a sense of where the truth lies.
The Need for the Patriot Act
Prior to passage of the Patriot Act, law enforcement could engage in surveillance of criminals (DOJ, n.d.). Members of organized crime, drug traffickers, and counterfeiters are a few of the criminals eligible for electronic surveillance. If terrorists engaged in these crimes, they were subject to the same surveillance techniques, but all too often terrorists engaged in activities not considered eligible for a surveillance warrant. What the Patriot Act did was permit law enforcement to monitor any suspected terrorism-related activities using electronic surveillance methods.
In addition to giving law enforcement a broader scope when surveilling suspected terrorists, it gave investigators the ability to use methods designed to keep track of suspects experienced in evasion (DOJ, n.d.). For example, terrorists can evade a wiretap attached to a specific phone by using disposable phones. Drug dealers and organized crime members also engaged in this tactic, and in these cases, judges authorized a roving-wiretap warrant that applied to the person, rather than the phone or communications device. The Patriot Act allows investigators to resort to the same method during terrorism investigations.
Criminal investigators have always had the option of getting a 'sneak and peak' warrant from a judge, if they feared evidence would be lost if they used a regular search or 'no-knock' warrant (DOJ, n.d.). A sneak and peak warrant allows investigators to enter the suspect's residence, storage area, or vehicle without the suspect being present. The Patriot Act extends this option to terrorism investigations.
Strict search and seizure rules have protected a business's records for decades from illegal police activities and access to this information was granted only when a subpoena was issued by a grand jury. In addition, the information sought under grand jury subpoenas had to be narrowly defined. Searches of business records have proven valuable to solving a variety of crimes, including environmental crimes, money laundering, and embezzlement. Since terrorism often relies on the funneling of financial resources through banks and other financial services, the Patriot Act extends this type of search to suspected terrorists and gave federal judges sitting on the Foreign Intelligence Surveillance Court (FISA) the authority to issue warrants under strict limitations.
Prior to the Patriot Act, there were considerable barriers to information sharing between law enforcement, the military, and intelligence agencies (DOJ, n.d.). These barriers were found to be an impediment to terrorism investigations, because terrorists often ignore geographic and political boundaries when plotting an attack. The Patriot Act punched a hole in these barriers, by allowing investigations to be conducted by multiple agencies simultaneously and requiring interagency sharing in real-time. The Patriot Act also lowered geographic barriers by allowing the issuance of search warrants that can be used across jurisdictions. Prior to the Patriot Act, if a search had to be conducted in multiple jurisdictions a separate warrant had to be obtained for each jurisdiction.
The Patriot Act also updated law enforcement's ability to track and capture computer criminals by giving victims the ability to request law enforcement help (DOJ, n.d.). Under the Patriot Act, computer criminals were rendered essentially equivalent to property crime criminals.
In summary, from the perspective of the Justice Department the Patriot Act simply expanded the authority law enforcement already had when investigating criminal cases to include terrorism investigations.
Abuses under the Patriot Act
It has now been 11 years since the passage of the Patriot Act. Although many would argue that the Patriot Act has been very effective in protecting America against foreign terrorists, as evidenced by the lack of a successful terrorist act since its enactment, this argument is circular and thus lacks credibility. Determining the success of the Patriot Act in preventing acts of terrorism cannot be determined without statistics and these statistics are frequently considered protected information for national security reasons (EFF, 2007). In the absence of accurate statistics however, some clues can be gleamed from a few reports and the work of investigative journalists.
Based on a 2007 wiretap report prepared by U.S. Courts, there has been a sharp increase in wiretap warrants issued to investigators on the state level (EFF, 2007). The vast majority of these were for narcotics investigations. At the federal level, it appears that wiretap warrants have remained steady since the last report in 2004, but the Electronic Frontier Foundation (2007) pointed out that the public has no way of knowing if this figure is true because the information is protected by national security interests. The Electronic Frontier Foundation claims that it is reasonable to assume that federal law enforcement is actually engaging in more wiretaps, because wiretap warrants issued during national security investigations were not reported. Based on the 2007 report, an average of 94 different people were overheard during the wiretaps and when averaged over a total of 2,119 wiretaps installed, this amounts to the government listening in on the conversations of nearly 200,000 people. A total of 21 roving wiretaps were conducted by state law enforcement agencies during 2007, but federal law enforcement chose not to report any. The Patriot Act may be an effective tool in the effort to combat criminal and terrorist activities, but it also seems to be an effective screen against public oversight.
Over a 12-month period from the end of 2009 to the end of 2010, nearly 4,000 sneak and peak search warrants were issued by federal judges (Greene, 2011). This represents a doubling of such warrants from 2009 and three times the number issued in 2008. Of these, less than 1% were related to a terrorism investigation. This suggests that the Patriot Act is primarily fueling criminal investigations unrelated to terrorism. In support of this theory, 76% of reported warrants were issued for narcotic investigations. With U.S. prisons bursting at the seams and busting state budgets (McNeir, 2011), and human rights leaders demanding an end to the War on Drugs (Carter, 2011), the logic of this escalation seems unclear.
The Patriot Act also authorized FBI agents to issue National Security Letters (NSLs) when seeking information from businesses and other organizations (Abdo and Mercuris, 2012). These instruments were intended to substitute for warrants in situations when time was too limited for obtaining a warrant from a judge. Essentially, the Patriot Act gave FBI agents the authority to write their own warrants. In addition, a very strict gag order can be imposed on the recipient of the NSL, which prevents them from telling anyone, including their own attorney, that they received an NSL.
Between 2003 and 2006, a total of 192,499 NSLs were issued (OIG, 2008). In 2003, the number of NSLs issued as part of investigations into the activities of non-U.S. citizens was much higher than those issued for U.S. citizens (10,232 vs. 6,510); however, by 2006 this trend had reversed substantially (8,605 vs. 11,517). When…