The USA PATRIOT Act: History, Controversy, and Civil Liberties

Introduction

In response to the terrorist attacks that occurred on September 11, 2001, Congress passed the USA PATRIOT Act, a law that gives federal officials greater authority to track and intercept communications for both law enforcement and foreign intelligence gathering purposes (Doyle, 2002). The Patriot Act also grants the Secretary of the Treasury regulatory powers to prevent the corruption of U.S. financial institutions for foreign money laundering purposes.

The USA PATRIOT Act was an urgent response to the terrorist attacks and, as a result, was a bill that passed through the legislative and executive branches quickly. This made the Patriot Act a deeply controversial topic. According to Charles Doyle, Senior Specialist at the American Law Division, the Patriot Act "seeks to further close our borders to foreign terrorists and to detain and remove those within our borders. It creates new crimes, new penalties, and new procedural efficiencies for use against domestic and international terrorists. Although it is not without safeguards, critics contend some of its provisions go too far. Although it grants many of the enhancements sought by the Department of Justice, others are concerned that it does not go far enough (Doyle, 2002)." This statement encapsulates the debate that arose during the process of approving the USA PATRIOT Act, as leaders struggled to make the best possible decision to protect the United States and its citizens in a time of emergency.

The act originated as H.R. 2975 in the House and S. 1510 in the Senate (Doyle, 2002). S. 1510 passed the Senate on October 11, 2001. The House Judiciary Committee reported out an amended version of H.R. 2975 on the same day. The House passed H.R. 2975 the following day after substituting the content of H.R. 3108. The House version included most of the money laundering provisions found in a previous House bill, H.R. 3004, many of which had counterparts in S. 1510, as approved by the Senate. The House later passed a clean bill, H.R. 3162 (under suspension of the rules), which resolved the differences between H.R. 2975 and S. 1510. The Senate agreed to the changes and H.R. 3162 was sent to President George W. Bush, who signed it on October 26, 2001.

Background: The Road to the Patriot Act

On September 11, 2001, terrorist attacks on the World Trade Center and the Pentagon shook the United States and the rest of the world. However, they did more than trigger a national wave of grief and terror. They also rekindled a smoldering debate over the proper use of government power to examine the lives of citizens. In essence, the argument came down to this: "In an age of high-tech terror, what is the proper balance between national security and the privacy of millions of Americans, whose personal information is already more widely available than ever before? Telephone records, e-mails, oceans of detail about individuals' lives — the government wanted access to all of it to hunt down terrorists before they struck (O'Harrow, 2002)."

Immediately following the terrorist attacks, the seeds of the Patriot Act were planted as Washington leaders participated in closed-door debates over how much new power the government should have to protect national security. The terrorist attacks were not the only focus of these meetings. U.S. leaders also had to consider historical setbacks, including Cold War redbaiting, J. Edgar Hoover's smear campaigns, and Watergate-era wiretaps.

A fundamental issue that complicated this dispute was a group of little-known laws and rules that, over the preceding half century, had defined and limited the government's legal ability to conduct surveillance: "Title III of the Omnibus Crime Control and Safe Streets Act governed electronic eavesdropping. The 'pen register, trap and trace' rules covered the use of devices to track the origin and destination of telephone calls. The Foreign Intelligence Surveillance Act, or FISA, regulated the power to spy domestically when seeking foreign intelligence information (O'Harrow, 2002)."

The Bush administration, the Justice Department, and Congress voted to relax these limitations as soon as possible, arguing that while these laws were intended to protect individuals and political groups from abuse by the FBI, CIA, and other agencies, they were also a major contributor to the intelligence gaps that allowed the September 11 attacks to occur (O'Harrow, 2002). The government also sought new authority to secretly detain individuals suspected of terrorism and to enlist financial institutions in the search for terrorist financing. In addition, leaders wanted greater access to business databases filled with information about the lives of citizens, arguing that such access would dramatically aid the search for terrorists both in the United States and overseas.

Jim Dempsey, executive director of the Center for Democracy and Technology, and other civil libertarians agreed that the pre-September 11 laws were outdated, but for different reasons (O'Harrow, 2002). According to civil libertarians, the existing laws already gave the government access to a vast amount of information that had been unavailable a decade earlier. Granting investigators even more power, they argued, would lead to privacy invasions and abuse.

As the United States tried to recover from the enormous blow to the country, the first legislative proposals appeared in the Senate just two days later (O'Harrow, 2002). The first proposal was titled the Combating Terrorism Act of 2001. September 19th brought the administration's draft bill, the Anti-Terrorism Act of 2001. On October 2nd, House bill H.R. 2975, the "Patriot Act," was introduced, and on October 5th Senate bill S. 1510, the "USA Act," was introduced. House and Senate leaders then worked to resolve the differences between the two bills. By the time the USA PATRIOT Act — a combination of both — was approved by Congress and signed on October 26, 2001, the government had claimed more powers than even the most ardent law enforcement supporters had considered politically possible before the attacks.

Legislative History of the Patriot Act

In early October 2001, the House Judiciary Committee voted 36–0 in favor of an anti-terrorism bill supported by Democratic leaders but opposed by civil libertarians (McCullagh, October 4, 2001). During House meetings, which included votes on amendments to the bill, committee members said that the amended version of the Patriot Act — based loosely on the increased police powers that President Bush had requested — represented a reasonable compromise between liberty and security.

Rep. Robert Scott (D-Virginia) stated: "Much of this bill will be an effort to give authority and then safeguard against abuses (McCullagh, October 4, 2001)." At this point, even arch-conservative legislator Bob Barr (R-Georgia), who had previously criticized the Patriot Act, agreed that the act was necessary to combat terrorism. "We were able to eliminate or severely limit the most egregious violations of Americans' civil liberties that were contained in the original proposal," said Barr.

However, the Patriot Act was not passed without debate. Opponents argued that certain provisions would violate the rights of the people. The following points were the subject of considerable debate in early October discussions (McCullagh, October 4, 2001): the ease with which police could eavesdrop on the Internet; expanded information-sharing between police, the CIA, and similar agencies; and potentially intrusive surveillance of users by their Internet service providers.

As a result, committee members introduced several amendments, though they withdrew nearly all proposed changes that did not enjoy majority support. The following amendments were ultimately approved (McCullagh, October 4, 2001):

A study of how biometric identification systems — tied to the FBI fingerprint database — could be used at U.S. borders and consular offices to identify individuals wanted for a crime, with the attorney general given 90 days to prepare a report.

An attempt to limit "forum-shopping" by prosecutors seeking wiretap orders. Since the Patriot Act gives courts the power to order wiretapping anywhere in the United States, Rep. Maxine Waters (D-California) expressed concern that "it would encourage the government to engage in forum searching. If the court that issues the warrant is far from the defendant, it becomes difficult for the person to contest it."

Assurance that Internet providers, which would be required to cooperate with law enforcement requests for user surveillance, would not be forced to retool their networks solely for police convenience.

Allowance for individuals to sue police who leak information obtained through a wiretap. According to Rep. Barney Frank (D-Massachusetts): "If information gained during surveillance is improperly released, you have a right to go in and sue, with a minimum award of $10,000. If someone goes in and wins, the head of the agency which released the information must either initiate action against the leaker or will have to explain why this action was not taken."

The Patriot Act's sponsors, House Judiciary chairman James Sensenbrenner (R-Wisconsin) and Rep. John Conyers (D-Michigan), attempted to convince committee members that additional changes were unnecessary, since the bill could be reworked before the full House voted on it. The act was approved by the House Judiciary Committee and slated for a full vote.

On October 13, 2001, hours after the Senate approved its version of the anti-terrorism bill, the House of Representatives followed suit, voting 339–79 to ease limits on wiretapping and Internet monitoring (McCullagh, October 13, 2001). The House attached an expiration date to the act. Still, this move was not unanimous. Many legislators argued that House leaders had forced a vote before anyone could adequately review the bill. Earlier that day, top House Republicans had met privately and agreed to use the Senate's anti-terrorism bill rather than the more moderate version their peers had expected.

For the most part, Democrats were the most vocal critics of that decision. According to Rep. Barney Frank (D-Massachusetts), the House's decision was "an outrageous procedure: A bill, drafted by a handful of people in secret, comes to us without a committee review and immune to amendment (McCullagh, October 13, 2001)."

An attempt to send the USA Act back to the House Judiciary Committee for further review was defeated by a 345–73 vote. The majority of Republicans, who understood President Bush and Attorney General Ashcroft's urgent desire to obtain these additional powers, refrained from criticizing the decision and generally spoke favorably of the act.

Rep. Ric Keller (R-Florida) said: "Let us not allow the perfect to be the enemy of the good (McCullagh, October 13, 2001)."

Rep. Christopher Shays (R-Connecticut) raised the urgency of the concurrent anthrax attacks: "Because I believe our country can face a chemical, biological, or, heaven forbid, nuclear attack by terrorists, I believe this bill is necessary and we have no time to waste (McCullagh, October 13, 2001)."

Rep. Bob Barr (R-Georgia), well known as a privacy advocate, said that while he was not fully satisfied with the USA Act, he would support it. "It is absolutely imperative we take very seriously the sunset provisions in this bill," Barr said (McCullagh, October 13, 2001).

Civil libertarians continued to protest many of the provisions in the Patriot Act, arguing that the expansion of police powers and the reduction of personal privacy would not make citizens any safer from terrorists — it would simply enable the government to interfere with the privacy of its people. This group pointed to the several thousand people who had been imprisoned without access to a lawyer or even to family members, despite no criminal charges having been filed against them. They claimed that this type of injustice demonstrated that the Patriot Act gave the government far too much power with inadequate oversight. Some ardent civil libertarians went so far as to compare the Patriot Act to laws passed in Nazi Germany in the late 1930s.

Despite these objections, the U.S. government insisted that the legislation would be used solely to combat terrorism. Attorney General John Ashcroft and others in law enforcement argued that the Patriot Act was necessary to allow them to disrupt terrorist organizations.

Conclusion

September 11th deeply affected all Americans. For the first time in many people's lives, national security became a top priority as the government launched the war on terrorism. New security measures in airports and public buildings were instituted to protect the public from further attacks. Congress passed the Patriot Act in an effort to give law enforcement new tools to track down terrorists. While many argued that the act stifled civil liberties, its proponents maintained that it was necessary to protect the nation and its people.

In this context, civil protection was deemed a greater priority than civil liberties, on the grounds that the nation's liberties would be jeopardized without adequate security. The act may have curtailed some civil liberties, but it was also considered necessary in helping law enforcement agents prevent future terrorist attacks rather than merely respond with prosecutions after they occurred.

According to President Bush, the USA PATRIOT Act protects, rather than diminishes, civil liberties by increasing the government's ability to prevent terrorism rather than simply react to it. When signing the bill, the President stated that it was important to "take an essential step in defeating terrorism, while protecting the constitutional rights of all Americans (CNN News, 2001)."

On the second anniversary of the September 11 attacks, President Bush called for an expansion of the Patriot Act, asserting that the current law still prevented law enforcement officials from fully pursuing terror suspects (O'Rourke, 2003). Bush argued that the act had provided important new tools but had not gone far enough, and called for empowering authorities in terrorist investigations to issue subpoenas without going before grand juries, to hold suspects without bail, and to pursue the death penalty in a broader range of cases.

According to Bush, the "forces of global terror cannot be appeased, and they can't be ignored. They must be hunted. They must be found, and they will be defeated (O'Rourke, 2003)." He stated that he would call for "extraordinary measures" in expanding police powers, while acknowledging that such steps must be undertaken carefully.

Both Democratic and Republican members of Congress criticized the Patriot Act as being too invasive, and a half-dozen bills to roll back portions of the law were pending in Congress at the time, making Bush's proposals likely to face significant challenges. Nevertheless, the United States remained a target of terrorism, and many argued that drastic measures were still needed to safeguard the country's future.

According to Bush, under current statutes, "there are unreasonable obstacles to investigating and prosecuting terrorism, obstacles that don't exist when law enforcement officials are going after embezzlers or drug traffickers (Hunt, 2003)." For this reason, many concluded that the Patriot Act would need to be amended to include additional rights for law enforcement agencies.

Attorney General Ashcroft argued that "a two-to-one majority of Americans believe the Patriot Act is necessary and an effective tool that protects liberty because it targets terrorists. Ninety-one percent of Americans understand that the Patriot Act has not affected their civil rights or the civil rights of their families (Sales, 2003)." The events of September 11 underscored the government's fundamental obligation to protect its people, and in that light, the USA PATRIOT Act was viewed by its supporters as a measure that helped preserve both life and liberty.