Constitutionality of the Patriot Act

¶ … Patriot Act and Constitutional Freedom

Thomas Jefferson said: 'The price of freedom is constant vigilance.' Unfortunately in a large nation dedicated to the individual freedom and liberty of all its citizens, the only time when the nation learns that is has not been vigilant enough is when a person, or group of persons take advantage of that freedom, and abuse the liberty of others in order to further their own destructive purposes. The tragedy of 9-11 is the most recent case in point of how a nation can take its freedom and liberty for granted, which ultimately makes a doorway for others to tear down that which has taken over 200 years to build, protect, and defend.

When our country endured similar acts of threat or war, such as the bombing of Pearl Harbor, or the expansion of communism into the Western Hemisphere in Cuba, the government has oven reacted with a knee-jerk response. In an effort to protect the country from internal threat, the government has enacted laws which swung the pendulum too far in favor of government control of our lives at the expense of trampling our individual rights. Such was the case with the Alien and Sedition acts of 1798, the internment of Japanese-Americans during WWII, the McCarthy investigations after WWII, and possibly the Patriot Act of 2001.

How does a nation protect itself from enemies within its own boarder when the nation prizes freedom like ours? The pragmatic application of these two principles, freedom from government intrusion, and national protection necessarily create a dynamic tension between the different principles, and those charged with implementing them. It is impossible to protect a people without some measure of control, and verification of the nation's well-being. At the same time, overly zealous government influence into our lives is the core of political bondage, which the nation was established to guard against. At one extreme, anarchy from total lack of government is unacceptable. In the same way, a dictatorship establishes by a government which wants power for powers sake also creates an intolerable environment for the creation of a free and prosperous people.

Currently at issue is the Patriot Act of 2001 (the Act), and more specifically Section 215 of the same. Section 215 modifies the rules regarding the process which the government must go through in order to search third party records about you. As a result of the Patriot Act, third-party holders of your financial, travel, phone, and other primarily private records can be searched without your knowledge or consent. The only restriction is that the government must be able to identify that it's trying to protect against terrorism. However, the Fourth Amendment of the constitution guarantees that "the right... against unreasonable searches and seizures shall not be violated." Two hundred years of case law, including Title III of the Omnibus Crime Control and Safe Streets Act of 1968 provide that if the government wants to eavesdrop on your conversations, or search your possessions for the purposes of bringing criminal charges, the government and her agents must first provide evidence of "probable cause" that a crime has been committed, and evidence of a probable cause that identifies that a person has been involved in that crime. Without probable cause, there can be no wiretap, and no warrant.

The reason that the Patriot Act has become such a lightening rod is that the Fourth Amendment, and much more case law provided that if the state wished to search you, it needed to show probable cause that a crime had been committed, and that you may have been involved, and than obtain a warrant from a neutral judge. The new perspective of the Bush Administration is that terrorism, and attacks of terrorism can be carried out be so few people, with such devastating results that waiting for a crime to be committed are too great a risk. In order to facilitate prevention of terrorism, the government should be able to legally take action before a visible evidence of a crime has occurred. Waiting, according to the Bush Administration, may be too late.

The federal government took a step in this direction in 1978 when it passed the Foreign International Surveillance Act. (FISA) Under this act, authorized and warrant-less surveillance was legal so long as the primary purpose was to obtain foreign intelligence information. Under FISA, "the government needn't show probable cause that a crime has occurred; FISA surveillance orders are valid for 90 days as opposed to 30 days for ordinary search warrants; the target of surveillance is never advised of this surveillance; and the application itself and supporting affidavits are filed under seal so that neither the target nor his attorney can ever see the allegations against him." (Lithwick, 2003) While the FISA act was seen as an erosion of the fourth amendment, there was still in place a measure of judicial oversight. Under FISA, records could be sought only "for purposes of conducting foreign intelligence" and the target "linked to foreign espionage" and an "agent of a foreign power."

Under the Patriot Act, the FBI needs only to certify to a FISA judge that the action is based on investigating terrorism. There remains no need for evidence of a crime, or probable cause, only that the search is designed to protect against terrorism. Under the Act, the judge has no authority to reject this application. While the Department of Justice (DOJ) calls this "seeking a court order," in application it is much closer to a rubber stamp. In the pragmatic application of the Act, the target of a search needn't be a terror suspect herself, so long as the government's purpose is "an authorized investigation... To protect against international terrorism." (Lithwick and Turner, 2003) For constitutional purists, and for those who seek to protect the freedom of the people to pursue legal as well as illegal activities, the Patriot Act is only a vestige of events from previous decades.

The Alien and Sedition Acts of 1798 (ASA)

Due to an impending threat of war with France, Congress in 1798 passed four laws in an effort to strengthen the Federal government, and its ability to defend the home land from within. Known collectively as the Alien and Sedition Acts, the legislation sponsored by Federalists in power were also intended to quell any political opposition from the Republicans, led by Thomas Jefferson. The first of the ASA laws was the Naturalization Act, passed by Congress on June 18. This law required that resident aliens be residents for 14 years before they became eligible for U.S. citizenship. The previous standard was 5 years. Congress then passed the Alien Act on June 25, which authorized the President to deport aliens which were considered "dangerous to the peace and safety of the United States" during peacetime. The third law, known as the Alien Enemies Act, was enacted by Congress on July 6, and allowed the wartime arrest, imprisonment and deportation of any alien subject to an enemy country's influence, control, or power.

Finally, the Sedition Act, passed on July 14 declared that any treasonable activity, including the publication of "any false, scandalous and malicious writing," was to be considered a high misdemeanor, and would be punishable by fine and imprisonment. Because of this legislation. Twenty-five men, most of them editors of Republican newspapers, were arrested and their newspapers forced to shut down. (Early America.com, online)

One of the men arrested was Benjamin Franklin's grandson, Benjamin Franklin Bache, who was also the editor of the Philadelphia Democrat-Republican Aurora. He was charged with libeling President Adams in his publications and when news of his arrest became public, the people erupted in a public outcry against all of the Alien and Sedition Acts. Americans moved to question the constitutionality of these laws. The firestorm of public opposition to the Alien and Sedition Acts was so great, that the public responded by electing Thomas Jefferson, a Republican, to the presidency in 1800. The ASA laws were eventually repealed.

The difficulty of regulating the nation from the pulpit of the federal government is that the laws which are passed can often carry too much power. Similarly, the laws can be used in order to establish the power of a particular group within the federal leadership, as the ASA laws were used. For this reason, our nation has a suspicion of the ever expanding reach of the federal regulatory agencies. This suspicion is not unique to our nation, or to our century. According to Powers (2003), in an article entitled Can We be Secure and Free, Benjamin Franklin is quoted as saying: "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." In the same article, the ideological leader, responsible for co-founding the constitution Baron De Montesquieu is quoted" "Political liberty consists in security or, at least, in the opinion one has of one's security." In other words, these great thinkers who contributed so much to the creation of our constitution, and our system of checks and balances understood the opposing nature of freedom and security. Ultimately, the responsibility of a free people who wish to remain free is to create the security they seek, by remaining vigilant, engaged, and committed to the well-being of the nation. When this commitment emanates only from the federal government, the nation and the people trade their freedom for the comfort of being controlled.

Organizing the Opposition, and Creating a Measured Response

The first and thus far the most significant domestic opposition to government policy in the war on terror has come from those who identify themselves as civil libertarians. The American Civil Liberties Union and other civil liberties interest groups have mounted widely publicized challenges to a number of measures enacted in the wake of September 11, including the Act. The National Lawyer's Guild and the Lawyers Committee for Human Rights, representing lawyers from across the nation, have also launched protest efforts. Three hundred law professors signed a widely noticed petition opposing the administration's proposed use of military tribunals for the prosecution of those involved in the terrorist attacks. Locally, more than 40 major cities, smaller towns, and individual counties across the nation have passed resolutions calling for grass roots level resistance to, and the eventual repeal of, the Act. (Power, 2003)

Because we live in the wake of a period in which the freedom of speech, civil rights, and due process protections have been undergoing significant redefinition from activist court activity, any claim that our civil liberties are being curtailed or violated is extremely troubling to this generation of Americans. However, these arguments in response to the concerns of civil libertarians are also powerful, and need to be considered in light of continued terrorist intentions to do our nation harm at any level. It is the federal government's duty in a time of uncertainty and extreme danger, such as the United States now faces, to conduct a thorough investigation of the harms done. The federal government's responsibility is to minimize potential future threats. In light of the accusation which crossed from one branch to the other of those agencies responsible for protecting our nation after September 11, what would be the public outcry if these agencies did not ramp up their efforts and abilities, and then another terrorist event occurred on American soil. A very real possibility exists that a terrorist could bring into the country, and detonates a nuclear bomb in an American city. Under such circumstances, anything but the most vigorous foreign and domestic national security policy would be inexcusable, and an unjustifiable dereliction of duty.

According to Powers, (2003) "Every war brings with it, according to its particular circumstances, its own distinctive set of civil liberties challenges." This present conflict is no different, and has posed five main areas of controversy which should be considered in the debate over the conflict between protection and freedom.

Due process issues: can the government bypass legal due process procedures and case law in order to pursue terrorist suspects. The key question is can the Government be trusted to only pursue those suspects of legitimate concern.

Extraordinary detention: can the government intern Americans because they are suspects in larger terrorist activities, those who may be "under the influence of a foreign power"

The civil rights of noncitizens: what rights are to be extended to those who are in the country under our graces, and as our guests if they are suspected of terrorist activity.

Government secrecy: the need exists for some government activity to remain secretive in order to maintain the integrity of the intelligence community.

The treatment of terrorist captives outside the United States: how will the county treat those who it captures who are neither citizens, nor residents of the U.S. Should these people be given the same rights, and legal protections which are afforded those who have made their commitment to the well being or our nation. (Adapted from Powers, 2003)

The first and greatest source of concern among most citizens arises from the expansion of police powers that ultimately make it possible for government agencies to conduct surveillance, use wiretaps and searches, obtain access to personal records, and track and question designated groups. As a result, these groups attempt to frame the debate as a distinctive intrusion into the private lives of the individual citizens, and the relationship to due process.

According to Henderson (2002) the Act also modified the process for securing rights to surveillance activity in 5 specific ways.

When Trying to Obtain an Intercept Order, It May Now Be Easier for government agents to use FISA and FISA judges to Circumvent Title III, which applies to searching a persons private records that are maintained by third parties.

Prior to the Act, roving wiretaps were only available in the law enforcement context, and, to obtain one, the government had to show that the target was actually using the line to be tapped. However, FISA Courts Can Now Authorize Roving Surveillance, which the government can use at will.

The Standard under Which FISA Pen/Trap Orders Can Be Obtained Is Now Lower, and the government can obtain a FISA order authorizing the use of a pen/trap device by certifying that the information sought is relevant to an ongoing intelligence or terrorism investigation. No proof of a crime or criminal activity is required prior to securing this type of surveillance authorization. (The Pen/Trap devices are two specific devices. Pen registers are devices that capture the phone numbers dialed on outgoing telephone calls from an individual phone line. Trap and trace devices capture the numbers which identify incoming calls.) (Dempsey, 2003)

Pen/Trap Orders Now Apply to Both Wire and wireless, and internet Electronic Communications. Prior to the enactment of the Patriot Act, there was an ongoing debate as to whether the pen/trap statutes applied only to wire communications or to all forms of electronic communication, such as traditional wired, wireless, and internet-based electronic communications.