Patriot Act Legality and Homeland Security Powers

The Department of Homeland Security

After the September 11 attacks, the United States was, undoubtedly, in a state of fury, sadness, desperation, and general turmoil. The country's sense of security had to be rebuilt, and threats had to be kept far from U.S. soil. The State Department undertook a number of policies to achieve this goal, one of which was establishing a body that could share information with both the CIA and the FBI while focusing on the intelligence failures that had proven so costly. The Department of Homeland Security (DHS), as this body was called, would be able not only to collaborate with fellow governmental institutions, but also to monitor foreign and domestic threats.

Yet, as often happens, the origins of threats are never entirely clear, and the DHS was granted various powers through presidential directives — including those relating to the PATRIOT Act.

The USA PATRIOT Act of 2001

In the aftermath of the same attacks, Congress voted on a body of legislation known as the USA PATRIOT Act — Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 — which was signed into law by President Bush.¹ This Act launched a campaign to monitor both American citizens and foreign nationals through various privacy-affecting measures, including wiretapping and the monitoring of financial transfers, sparking intense public debate. Some argued the Act violated the freedoms guaranteed by the Constitution; others maintained it was a necessary tool for keeping the country safe.

Linkages Between the DHS and the PATRIOT Act

The DHS incorporated several provisions from the Act into its operational framework. As recently as May 2011, President Obama signed an extension of certain Act provisions, enabling the DHS to continue using them to "protect the country." This paper analyzes the PATRIOT Act, its relationship to national security, and its legal soundness.

It is important to clarify how DHS utilizes the Act's directives. Although the DHS does not necessarily invoke the Act directly, when given a mandate by the president through presidential provisions, it relies on powers legalized in the PATRIOT Act to carry out that mandate. A clear illustration is the Homeland Security Presidential Directive-7 of 2003, which tasked the DHS with Critical Infrastructure Identification, Prioritization, and Protection. That directive contained four key components:

1. Purpose — The directive established "a national policy for Federal departments and agencies to identify and prioritize United States critical infrastructure and key resources and to protect them from terrorist attacks."

2. Background — The directive described that "terrorists seek to destroy, incapacitate, or exploit critical infrastructure and key resources across the United States to threaten national security, cause mass casualties, weaken our economy, and damage public morale and confidence," and explained that safeguarding these resources is vital to the well-being of the nation.

3. Definitions — The directive defined various components, specifying that "critical infrastructures" carries the meaning given in section 1016(e) of the USA PATRIOT Act of 2001 (42 U.S.C. 5195c(e)).

4. Policy — The directive further affirmed that the United States must protect, at whatever cost necessary, its civilians, resources, and infrastructure.²

Through these four points the President gave the DHS a mandate it was required to carry out, and the DHS in turn referenced provisions of the PATRIOT Act in order to establish the legal authority to do so.