The USA PATRIOT Act: Civil Liberties vs. National Security

Introduction: The PATRIOT Act and Its Origins

The USA PATRIOT Act, commonly referred to as the PATRIOT Act, was signed into law on October 26, 2001 — just 45 days after the September 11, 2001 terrorist attacks on the World Trade Center in New York City. The Act expanded the authority of U.S. law enforcement agencies to investigate and prosecute terrorism. Many of the Act's provisions were set to sunset on December 31, 2005.

Given the horrific shock and fear following September 11th, the perceived need for an immediate response to terrorism, and perhaps the feeling that the Act could be corrected later because of the sunset clause, the PATRIOT Act received overwhelming endorsement — even though it greatly weakened civil liberties provided by the U.S. Constitution. With the firm conviction that less freedom means greater safety, lawmakers have ignored the Constitution and written what they believe should be the appropriate process for dealing with terrorism.

Arguments in Favor of the PATRIOT Act

The PATRIOT Act received broad support across the political spectrum, passing in the Senate by a vote of 98 to 1 and in the House by a vote of 357 to 66. Advocates such as the Department of Justice argued that the Act made changes necessary to combat terrorism, including allowing the use of electronic surveillance, enabling information sharing across agencies, and imposing stiffer penalties.

While law enforcement could engage in electronic surveillance to investigate crimes by the mafia and drug dealers, it could not use that same surveillance for many terrorist crimes — such as the use of weapons of mass destruction, financing terrorists, and chemical-weapons violations. The PATRIOT Act removed these restrictions. It also facilitated information sharing and cooperation across government agencies by removing the legal barriers to such communication that had existed before its passage. Additionally, the Act increased penalties for acts of terrorism such as arson, providing material support to terrorists, and the destruction of national-defense materials. It also made the harboring of terrorists a criminal offense.

Some supporters acknowledge that provisions such as Section 213 and Section 215 do not fully comply with the Fourth Amendment, yet still support the Act overall. On the matter of constitutional protections, defenders have argued:

"The balance between civil liberties and security is not a zero-sum game. Thus, it is vital to realize that there are significant factors weighing on both the civil liberty and national security sides of the scale. That is why, for example, the courts have recognized that in the national security context, the requirements of the Fourth Amendment apply somewhat differently than they do in the context of domestic law enforcement." (Rosenzweig, Kochems, and Carafano, 2004)

Post-September 11th, there is a strong feeling among those in favor of the PATRIOT Act that how our law enforcement system operates must change to meet new realities. There is the belief that "we simply cannot afford a rule that 'better 10 terrorists go undetected than that the conduct of 1 innocent be mistakenly examined.'" (Rosenzweig, 2004)

Civil Liberties Concerns: Section 215 and Secret Warrants

Those opposed to the PATRIOT Act are deeply concerned that it threatens basic constitutional rights guaranteed to American citizens and disturbs the system of checks and balances. Critics argue it does so by: diminishing personal privacy through the removal of important checks on government surveillance authority; expanding the definition of "terrorism" in a manner that threatens constitutionally protected rights; and seriously eroding the right of all persons to due process of law (Strom, 2004).

Eight states — Alaska, California, Colorado, Hawaii, Idaho, Maine, Montana, and Vermont — and 396 cities and counties, including New York City, Los Angeles, Dallas, Chicago, Eugene (Oregon), Philadelphia, and Cambridge (Massachusetts), passed resolutions condemning the Act for attacking civil liberties. According to Gallup Poll statistics, public support for the Act declined over time. In 2003, sixty-nine percent of Americans polled felt the Act had not gone too far in violating civil liberties; by 2005, that number had dropped to forty-nine percent. This figure might be even lower if Americans were better educated about the Act. In 2005, the Gallup Poll revealed that twenty-nine percent of survey respondents said they knew nothing about the Act, while another twenty-eight percent admitted to knowing very little.

Of most concern to the American Civil Liberties Union (ACLU) and other civil rights groups is Section 215 of the PATRIOT Act, which allows the FBI to obtain secret warrants from the United States Foreign Intelligence Surveillance Court (FISA Court) for business records or other tangible items belonging to anyone suspected of international terrorism or spying. Prior to the PATRIOT Act, the Fourth Amendment to the Constitution, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, and case law all required a warrant and probable cause to access private records (Lithwick and Turner, 2003). The 1978 Foreign Intelligence Surveillance Act (FISA) had authorized warrantless surveillance for obtaining foreign intelligence information but required judicial oversight (Lithwick and Turner, 2003).

Under Section 215, a FISA judge cannot reject an application for a search that the FBI claims is intended to protect against terrorism (Lithwick and Turner, 2003). This means that the government can search virtually any personal information — financial, library, travel, video rental, phone, and religious records — without a person's knowledge or consent, as long as the government asserts it is acting to protect against terrorism. In essence, the government is writing and approving its own search warrants.

Conclusion: Fear, Freedom, and Constitutional Balance

While there are certainly some long-needed changes brought about by the PATRIOT Act, it is clear that it went too far in weakening civil liberties. The passage of the Act is reminiscent of the creation of Japanese internment camps during World War II, when the United States was in a frenzy following the bombing of Pearl Harbor. Only much later would Americans come to recognize the tremendous injustice done to the civil liberties of those U.S. citizens. Fear drove that overreaction, and fear has once again asserted itself in the aftermath of September 11th. Following that tragedy, it became acceptable to remove constitutional protections such as probable cause and due process, with the assumption that the alternatives would be far more injurious to Americans.

With the 2006 reauthorization resolution, the passage of time has allowed for more measured thinking than was possible in the immediate post-September 11th environment, and this has translated into some meaningful improvements for constitutional rights. However, much more is still needed. Hopefully, time will continue to allow progress in the right direction. Such change is likely to come as lawmakers recognize how their willingness to circumvent constitutional protections in one favored area can easily be extended to others once the door has been opened to working outside the appropriate constitutional framework.