The Patriot Act: overview and implications

USA Patriot Act

What is the issue?

The view that had been taken by the authorities is that America was a country with too much of liberty - more than was good for its security. Along with this the feeling was that federal law enforcement agencies did not have enough powers. Thus when the situation of 9/11 came up, the government had to act, the least it could do was to stop future such incidences from happening, and it came up with Patriot Act. The new act has turned America into a country where there is now less privacy and possibly increased security. One of the main areas where privacy has disappeared is financial positions. (More Surveillance Equals Less Liberty: Patriot Act reduces privacy, undercuts judicial review)

The situation is that banks, brokerage houses, insurers and all other financial institutions have now been forced to become state informers. The government has the power to get hold of the checking account records of any person, without any evidence of wrong doing. The concerned organizations have to keep the government informed. This is the success achieved by the government authorities. Let us now look at the expressed views as justification for what is being stated. The divisional counsel for the Los Angeles division of the FBIR, Stephen Kramer is on record as writing "Contrary to the Register's views that the act was cobbled together in haste after 9/11, the act actually intelligently addressed laws and policies that had placed unnecessary restraints on the FBI's ability to gather, analyze and share terrorism-related information. In other areas, the act updated federal laws - written in the era of rotary telephones - to account for new technologies such as the Internet and voice-mail." (Highlights of the U.S.A. PATRIOT Act)

Congressman Todd Platts has written in the York Daily Record that USA Patriot Act has helped law enforcement officials to use the methods that were available to them for fighting organized crime, child pornography, or drug investigations. The tools were also useful in conducting international terrorism investigations and also the tools available for civil liberties protections. These actions are expected to ensure that the constitutional rights of American citizens are not infringed. It is believed by these authorities that the intelligence and law enforcement officials can now work together to defend citizens against threats that are posed by terrorists. The main question was whether that was the objective of Patriot Act. (Highlights of the U.S.A. PATRIOT Act)

This view has been taken by the 9/11 commission was that a wall had been erected between the intelligence gathering organizations and agencies for law enforcement was one of the main reasons for the events that happened. They were also deemed to be a main reason for the government's failure to act. After the incident, Congress had taken steps to enforce the lessons that they had learnt so that there will be no terrorist attacks. One of these resulted in the Patriot Act. The statement of Orrin Hatch is also clear; "I personally believe that if these tools [in the Patriot Act] had been in law - and we have been trying to get them there for years - we would have caught those [9/11] terrorists. If these tools could help us now to track down the perpetrators-if they will help us in our continued pursuit of terrorists-then we should not hesitate to enact these measures into law. God willing, the legislation we pass today will enhance our abilities to protect and prevent the American people from ever again being violated as we were on September 11." (USA PATRIOT Act Quote of the Day)

At the same time, now that the power has been collected by the government, it is leading to different actions on the part of citizens. There was a roundtable conference on the Act held at Missouri, Kansas City on September 16, 2002. The meet was sponsored by the Department of Political Science of the University there. Statements there clearly mentioned that the law which was passed on October 29 had only increased the power of the attorney general to a level that he never had earlier. At the same time it granted a lot of powers to the agencies for intelligence and law enforcement, and made them practically free from control by the judicial authorities. The biggest example of this is in the ability of the government to tap the activities of an individual on the telephone and on the Internet. (Prosecution vs. Prevention - The Logic for the Patriot Act)

The agencies do not have to give any reason for their activities and also do not have to account for their findings to anybody. The arguments continued in the same vein and this was regarding the position of Jose Padilla and Yaser Esam Hamdi. They had been classified as 'enemy combatants' and lodged in military prisons. The status conferred on them was that they were not entitled to the trial that U.S. citizens are entitled to. Ultimately, Hamdi was deported to U.S. though he had been confined in prisons of United States for three years. There was also a high level campaign launched by FBI and Department of Justice and that is embarrassing, to say the least. (Prosecution vs. Prevention - The Logic for the Patriot Act) These actions clearly show that they are highhanded to say the least, and such actions can only arise when the concept of power with the authorities reach a level of absolute power.

The logic for steps taken:

The policymakers showed the reasons of lack of power as the logic for the law, but what they did was to enforce their natural law of using power. They ended up passing laws to maintain and strengthen their political position. Is it not clear that the main reason for the act was enforcement by the authorities of their 'natural rights' as per the arguments given above? Let us now look at the act in a little more detail though the full act cannot be studied here as it is quite a large piece of legislation. Even according to the authorities the "Patriot Act was a long overdue measure to close gaping holes in the government's ability, responsibly and lawfully, to collect vital intelligence information on criminal terrorists to protect our citizens from savage attacks such as those which occurred on September 11, 2001." (Statement of Barbara Comstock, Director of Public Affairs regarding Section 215 of the U.S.A. Patriot Act)

The aim of the law was to update the government's ability to take care of changes that have taken place due to modern technology and use tools for fighting terrorism in line with the tools that are now used for drug and organized crime cases. Then let us have the views on Section 215 from the government, and Section 215 is one of the most disputed areas. According to the government it applies to business records in general and not specifically library records. (Statement of Barbara Comstock, Director of Public Affairs regarding Section 215 of the U.S.A. Patriot Act) How can anyone then say that Patriot Act is relevant to 'protection of America'?

The view of the opposition to the act is different and they state that this section modifies the rule on searches. The opposition says that anybody having records of financial statements of parties, library records, travel records, video rental records, phone user records, medical service records, church records, synagogue records, and mosque records can be asked to provide details about the users of their use of services. The organizer who maintains the records has just got to give them and cannot object if the government or its agencies say that the purpose is to fight terrorism. (A Guide to the Patriot Act, Part 1) Again, the government says that the order respects first amendment rights, requires a court order if any business records are to be obtained, is subjected to reporting to the congress and supervision on a regular basis. (Statement of Barbara Comstock) The restrictions in Section 215 for getting hold of records are more stringent than the restrictions given in a federal jury subpoena for getting the same records. The question to be asked here is whether the federal grand jury and organizations permitted to use Section 215 are at the same level or are they expected to take the place of federal grand juries? This again reinforces the belief that it is an attempt by the government to take over the powers that should be obtained from the use of other processes.

As a support for the statement given by the government, the proof is given from a statement of the House Judiciary Committee which states regarding Section 215 that the "Committee's review of classified information related to FISA orders for tangible records, such as library records, has not given rise to any concern that the authority is being misused or abused." (Statement of Barbara Comstock, Director of Public Affairs regarding Section 215 of the U.S.A. Patriot Act) It is clear that the support from a party which was involved with passing the law in the first place. If there is a complaint about a robbery, is the thief expected to be the main witness in the court when the case comes up? Earlier the process needed the minimum of a warrant and a probable cause for the agencies to seek private record of the individual being accused of theft.

Under Fourth amendment, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, and relevant case laws show that if a state wanted to search an organization, the agency had to show the reasons for believing that a crime had been committed and also to get a warrant from a neutral judge. When the new law of FISA came up in 1978, there was the chance for the agencies to get surveillance done without an warrant for the purpose of obtaining information about foreign intelligence, but the agencies were still tied down to going through a judge. The laws also clearly stated that FISA could be used for the purposes of conducting foreign intelligence; the person being targeted was likely to be linked to foreign espionage as also an agent of a foreign power. (A Guide to the Patriot Act, Part 1)

The new act needs only a certification from a FISA judge, but there is no need for any evidence or probable cause. The only statement has to be that the search is required for protection against terrorism. This is the new definition of "seeking a court order" by the Department of Justice. The government authorities repeatedly state that the agencies require an order from a FISA court, and have to convince the court that they require the information. (Statement of Barbara Comstock, Director of Public Affairs regarding Section 215 of the U.S.A. Patriot Act) The question here is of convincing the judge, but they do not have to give the judge evidence or probable cause for their requirement. Then how can there be a logical method of convincing the judge? The judge has to permit the collection of information by the agency, as long as the agency says that it is required to fight terrorism. The status of the judge has been reduced to a doll for issuing orders. Why not use a machine instead?

The policies are also clear and the search can be conducted under any pretext whatsoever, and the person for whom the search is being conducted need not be suspected of terror. What that means is that if one wants to get any information about the members, including the simple finding out whether a particular person is a member or not, the library can be asked to provide the information, by an order under Patriot Act. The agency just has to name a person. The agency does not have to accuse the person of being a suspected terrorist. The department has also said that U.S. citizens may not be subjected to search, but there is no such statement in the act. It is not possible to distinguish between citizens of United States and others, when all the information that will be turned up is a list of names -- some of them may be citizens of United States while others may not. The department also says that "an investigation conducted under this section shall 'not be conducted of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States.'"(Statement of Barbara Comstock, Director of Public Affairs regarding Section 215 of the U.S.A. Patriot Act)

This logic is rather difficult to understand as in many cases the situation may be as simple as writing an article against the act. The author may be now a citizen of United States, but the law applicable to him will be different if the person has come in from some other country. The operating word here is 'solely'. (A Guide to the Patriot Act, Part 1) The icing on the cake is the supervision of the operation of the act. This is to be done by the Attorney General and he has to inform Congress every six months on the number of times, the agents have asked for court orders under Section 215. The information is to be classified, but the procedure has been followed by the authorities. (Statement of Barbara Comstock, Director of Public Affairs regarding Section 215 of the U.S.A. Patriot Act)

The question here is that the Act has been passed by the Congress and they are being informed about usage of the act only in terms of the number of times. Are they to be told the details of information that is being turned up through these requests? Again, the information has to be supplied by the Attorney General and he is a part of the government and he is unlikely to act against the wishes of the government. The problem here is that one fundamental principle of dividing the rulers of the country in three sections of administration, legislature and judiciary is not being followed. Only that policy when strictly enforced can keep a balance between the wings. Otherwise, the administrative wing will tend to dominate the other organs. This is what is happening now.

Objections to the logic stated:

When we look at the large amount of discussions of the Act that has already been gone through, one really needs to examine whether the information sought for was required? The other point is whether Americans are really concerned to a large extent about invasion of their privacy? Unless those points are clarified, there is no point in arguing so much about a law which will expire by the end of 2005. The first point is that the law made quite a few changes that were not required, or even through the changes in government policies and new regulations that accompanied the law. One such change was the setting up of investigative guidelines for the Attorney General. The second point is that powers which were collected for fighting terrorists were finally used for fighting ordinary criminals, though the fear of terrorists stopped any debate from taking place. After all, the terrorists are a 'sacred cow' in USA today. When questions about the law came up from the Congress, the Department of Justice failed to answer some of the relevant queries. The Department of Justice also did not say clearly the powers that it had been granted. (Interested Persons Memo on Congressional oversight of the U.S.A. Patriot Act and Department of Justice anti-terrorism policies -- DOJ's dismissive response on civil liberties)

Going further into the argument, the department has not taken seriously the way immigrants were detained during the course of the investigation into 9/11 attacks and the description of these persons was given as terrorists. At the same time, under Patriot Act, they were never classified as suspects. Even the Director General of the Department stated that the serious abuses took place as it had taken "indiscriminate and haphazard" tactics regarding the entire matter. These procedures led to long detentions without charge or access to attorneys combined with the confinement of immigrants in very harsh conditions. The detentions are also taking place for very long periods, and it seems that persons who are being held are being presumed to be guilty. There have been also many new guidelines that have been issued without rhyme or reason.

On May 14, 2002 there was an issue of fresh guidelines to investigate normal crimes and domestic security. The new laws provide agents from FBI right to attend any public event, including political and religious meetings. The agents do not have to disclose their identity, and the fact that they did not disclose identity would be considered relevant in any future trial. This has led FBI agents to enter mosques which did not have any suspicion of criminal activity. The number of mosques that have been visited is put at ten from 9/11. Nine of these visits were classified as being for the purpose of "open preliminary inquiries or full investigations." (Interested Persons Memo on Congressional oversight of the U.S.A. Patriot Act and Department of Justice anti-terrorism policies -- DOJ's dismissive response on civil liberties) Even under the earlier conditions, such visits by FBI agents were taking place, and authorized. Even the one visit to a mosque that was classified as "pursuant to the Guidelines provision authorizing agents to visit public places and attend public events" did not yield any results. There have been reviews of some 4,500 intelligence files, and the aim was to find out whether they had any relevant information regarding criminal activity.

The only case that came out was of Sami Al-Arian, who is an Arab-American in Tampa, Florida. The case of this person is well-known as his brother in law had been imprisoned for years, and this person was accused of raising funds for Palestinian terrorism. Most of the evidence regarding this person was also collected prior to the passing of this new act. Another person was convicted for running an unlicensed money transmittal business in Boston. It is said he is linked to Al Qaeda. On conviction, the judge gave him a sentence of only one and a half years! The collection of information under Section 216 of Patriot Act concerns the digital world that is regarding Internet and e-mail. This enables the person enquiring to capture the telephone numbers dialed, but not the contents of the message that had been transmitted. (Interested Persons Memo on Congressional oversight of the U.S.A. Patriot Act and Department of Justice anti-terrorism policies -- DOJ's dismissive response on civil liberties)