Constitutionality of the Patriot Act

True patriots realize that one must protect the nation from all enemies, foreign and domestic, and that the essence of what it means to be patriotic is to protect our Constitution and its Bill of Rights will all of our might.- Amitai Etzioni One of the central themes of our nation when it comes to our national security has to do with two profound commitments: protecting our homeland and safeguarding our rights. However, in order to protect it, we have to give up some of our rights. The U.S. Patriot Act was designed to hopefully give special powers to U.S. law enforcement agencies to prevent future terrorist attacks. Americans were so traumatized by the terrorist attacks on 9/11 that they were willing to surrender their liberties. On October 26, 2001, after the terrorist attacks on the World Trade Center and the Pentagon on September 11, 2001, Congress passed the Uniting and Strengthening of America through Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, commonly referred to as the USA Patriot Act. The law expanded the FBI's wiretapping and electronic surveillance authority. It allowed nationwide jurisdiction for search warrants and electronic surveillance devices.

The USA Patriot Act is one of the most controversial and misunderstood laws Congress has ever enacted. This legislation dramatically shifted our national focus even further away from the due process model in our attempts to control crimes by terrorists. The act has ten sections or titles outlining new powers for government operations. Titles I, II, III, IV, and VII specifically affect law enforcement's role in antiterrorist activities. One of the key objectives of the Patriot Act was to remedy a need of interactions linking the federal law enforcement agencies and intelligence agencies that were individually trying to defend against terrorism. The September 11th terrorist attacks established how critical inter- and intra-agency interactions are to stop and take action against such attacks. The Patriot Act attempts to create a coordinating mechanism to defend against terrorism efforts of all U.S. law enforcement and intelligence agencies. There are many controversial provisions of the Act in order to control crime that has shifted our national focus away from the due process model.

The government has access to financial, library, travel, video rental, phone, medical, and religious records. As long as the government declares that the searches are to protect against terrorism, they can conduct them without a person's knowledge or consent, and without a warrant. Today, officers can use "sneak and peek" to enter a home without notifying the person, look around, take pictures, examine electronic files, and leave. Prior to the Act, the search had to be executed with a search warrant. National Security Letters are used to attain business records instead of having to get a judicially issued warrant to have access to the information. The U.S. Attorney General now has the authority to "order the detention of aliens without any prior showing or court ruling that the person is dangerous" (Ferdico, Fradella, Totten, 6). The powers issued to federal law enforcement agencies violate the fourth amendment of the U.S. Constitution, the right of privacy. "The exclusionary rule is an interpretation of the U.S. Constitution by the U.S. Supreme Court that holds that evidence seized in violation of the U.S. Constitution cannot be used in court against a defendant" (Dempsey and Forst, p. 530).

The exclusionary rule is violated by police because the act allows warrantless searches and even searches without probable causes. The exclusionary rule's power was originally intended to be used only in federal cases. The Foreign Intelligence Surveillance Act (FISA) was revised to sanction secret searches, "without public knowledge or Department of Justice accountability" (procedure, 6), as long as the government claims a foreign intelligence need for such a search. FISA allows federal agents to perform electronic surveillance and physical searches for national defense reasons. It authorizes surveillance of so-called "lone wolves" - any person or group who is not associated with a foreign government but who "engages in international terrorism or activities in preparation therefore or engages in acts of sabotage" (293). However, FISA does not control U.S. governmental intelligence actions outside the United States; these actions are instead conducted by the Central Intelligence Agency. The Patriot Act has changed some of the ways the federal government is allowed to collect and use evidence. Although the Patriot Act was created to ensure that the nation is safer from terrorism, some civil libertarians have became concerned that the new powers will have an effect on some civil rights. FISA of 1978 has authorized some evidentiary searches prior to obtaining a warrant, but the statute anticipated that a warrant would be helpful in most cases. The act excluded the use of any evidence unlawfully obtained through illegal electronic searches and surveillance.

Congress amended FISA by passing relevant provisions of the Patriot Act that had the effect of limiting the use of FISA for domestic law enforcement purposes. The administration governing law enforcement surveillance prior to September 11 was a complex combination of limitations, broad powers, and compromises. Since there was a high demand for strong law enforcement, the Patriot Act shifted this balance in the direction of greatly extended investigative powers-including powers to investigate crimes completely unconnected to terrorism. The Patriot Act gives law enforcement the new ability to search, seize, detain, or eavesdrop in their pursuit of possible terrorists. The law has become controversial and has caused many Americans to believe that the law threatened their civil liberties. The new antiterrorism focal point of U.S. law enforcement was seen undoubtedly as the United States waged war against Iraq in March 2003.

The counterterrorism of law enforcement agencies in the United States matched the preparations of the military forces abroad: Perez-Pena (2004) found the following: As the United States waged war on Iraq, New Yorkers and others across the region are witnessing an extraordinary state of heightened security. Police officers are armed like assault troops outside prominent buildings, police boats are combing the waterfronts and trucks are being inspected at bridges and tunnels. A sneak-and-peek warrant is search warrants that explicitly sanctions law enforcement officers to enter vacant premises, search for evidence, and then leave. They do so without seizing the evidence they find and without leaving a trace that an entry has been made. In order to conduct such a search, officers typically photograph or videotape the evidence or otherwise document exactly what they saw and its exact location. The U.S. Patriot Act was enacted less than two months after the terrorist attacks of September 11, 2001. Sections 213 of the Act, codified at 18 U.S.C. 3103a

(a), contained "the first express statutory authorization for the issuance of sneak-and-peak search warrants in American history" (Duncan, p. 24). This section provided: 

(b) delay-without respect to the issuance of any warrant or court order under this section, or any other rule of law, to search for and seize any property or material that constitutes evidence of a criminal offense in violation of the laws of the United States, any notice required, or that may be required, to be given may be delayed if:

1. the court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result (as defined in section 2705, except if the adverse results consist only of unduly delaying a trial);
2. the warrant prohibits the seizure of any tangible property, any wire or electronic communication (as defined in section 2510), or, except as expressly provided in chapter 121, any stored wire or electronic information, except where the court finds reasonable necessity for the seizure;
3. the warrant provides for the giving of such notice within a reasonable period not to exceed 30 days after the date of its execution, or on a later date certain if the facts of the case justify a longer period of delay.

Although the Patriot Act has tried to focus more on expansion on the United State idea of terrorism and protecting the people, the Bill of Rights is being threatened, mainly the first, fourth, and fifth amendments. The primary amendment the Patriot Act hindered was the first amendment, the right of freedom of speech, assembly, and the press. The Patriot Act began to infringe on this freedom by allowing the use of roving wire taps. Roving wiretaps are "able to be placed on every phone or computer that the target of an investigation may use" (6). Although it allows the government to keep up to date with the new technologies that terrorist use, it invades the privacy of many unaffiliated innocent civilians who may come into contact with the suspect. One reason for the Patriot Act is the need for stronger legal tools. Well-designed legal powers play a fundamental role in facilitation strong, practical tactics and successful precautionary efforts. Legal authority can be the key to gaining necessary information about enemies and their unfolding plans. However, we must not misjudge the significance of law, even such a broad and important law as the Patriot Act.

The value of access to more and better information seems obvious-so obvious that many Americans can now think it precautious to give counterterrorism officials broad authority to gather whatever information they deem of use. This widely shared assumption is not, at first blush, unreasonable. But it is deceptive because legal authority is not as much of importance for successful intelligence actions as the public and the legal professions generally believe. An efficient intelligence method needs that information be "gathered, translated, pooled the relevant agencies, analyzed, and then transmitted to those in a position to investigate further to take quick preventive action" (Schulhofer,14). Legal rules are largely immaterial at the critical stages of translation, analysis, and transmission. Law can pose considerable barriers to the pooling of intelligence, but here the barriers of agency culture, weighty lines of communication, and inadequate resources usually matter much more. "Even at the stage of gathering domestic intelligence, the stage where we expect law to govern, capabilities are largely determined by non legal constraints: technical, budgetary, and human resources, the training and priorities of officers, and the organization and cultures of the relevant agencies" (Schulhofer, 14). If an intelligence method suffers from key insufficiencies in these areas, anxiety with questions of legal authority can be a hazardous diversion because it will certainly prevent us from dealing with problems that may matter much more. Before centering our attention on the legal issues in detail, it is necessary to review the function they took on in the events leading up to the September 11 attacks. A year prior to the September 11 attacks, 54 percent of Americans were not worried that the government threatens their own personal rights and freedoms.

The number grew to 67 percent two months following the attacks. According to Etzioni, this is because there had been several measures had been introduced in order to enhance safety and public fears began to reduce (National Public Radio/ Kaiser/Kennedy School). In a poll, Americans were asked, "Would you be willing to give up some of the liberties we have in this country in order for the government to crack down on terrorism, or not?" (Etzioni, 17) their responses tell the same story. According to Etzioni, not too soon after the bombing of the Murrah Federal Building in Oklahoma City in April 1995, 59 percent of Americans favored giving up some liberties. After only a month following the bombing, the numbers began to reduce to 52 percent. After the terrorist's attacks on September 11, that number grew to 66 percent of Americans. (ABC News/Washington Post). The same responses are shown in an additional poll that asked, "What concerns you most right now? That the government will fail to enact strong, new antiterrorism laws, or that the government will enact new antiterrorism laws which excessively restrict the average person's civil liberties?". Although 44 percent were worried that the government would ratify laws that would limit civil liberties in 1995, 34 percent expressed such doubts in September 2001. (Pew Center for the People and the Press)

The eagerness of people to give up rights to be able to fight against terrorism, and their opinion of whether or not they will need to give up some of their own rights, is also tied to their point of fear. As Table 2 shows, an obvious majority of 59 percent of American citizens were willing to give up some liberties after the bombing of the federal building in Oklahoma City in April 1995. When the question was asked again a month later, people's willingness to support reductions of liberty declined to 52 percent. A majority of the American people, 78 percent, were willing to give some of their liberty to fight against terrorism once the question was asked in a different form after the attacks on September 11. Questions about "necessity" as an alternative to willingness to give up liberties disclose a related pattern. "More than six in ten Americans agreed that it was a necessary to give up some rights immediately after September 11" (Abele, 17). When the question was asked again two months later, the poll fell to five out of ten Americans.

IMG_0004.jpg When asked about specific measures that should be taken, what needs to be done is consistent: as fear decreases, the support for safety, at any cost, remained very high. However, it declined over time. More than two-thirds of Americans were willing to give up certain rights on seven out of ten measures. When the same topic was asked in a different question form, the end results were the same. The percentage remained small of the amount of Americans who believed that the government had gone too far in confining civil liberties to fight against terrorism. However, it increased from eight percent to 12 percent as America experienced no new attacks and frequent new safety methods were established. The percentage of those who believed that the government did not go far enough declined somewhat. In responses to questions such as, "Overall, how confident do you feel that U.S. law enforcement will use its expanded surveillance powers in what you would see as a proper way, under the circumstances of terrorist threats?", we see the start of a shift, the reduction in those who are very confident law enforcement will use such powers appropriately, which is less challenging than a substantial rise in those who are not confident at all.

However, in March, the number of people who felt "very confident" fell from 34 percent to 12 percent from what it was in September, those who were "not confident at all" increased by a sheer two percent, well within the margin of error for such polls. (Harris) Etzioni (2004) found the following: As far as one can rely on attitudinal data that vary according to how the question is phrased, the data support the thesis that the higher the fear, the greater the willingness to curtail liberty to protect safety. And that as new safety measures are introduced, and no new attacks occur-when the government's response seems effective-fear subsides and support for democracy beings to re-increase. The fact that the support for strong anti-terrorist measures remains high reflects the fact that all of the data were collected within nine months of the attack and under frequent warnings about immanent attacks, new threats, and so on. The thesis would lead one to expect that if the panic subsides some more, the proportion of those supporting a curtailment of rights will further decline. This may seem obvious, but it surely is not so obvious to those who hold that democracy is lost by introducing new safety measures that entail some curtailment of rights. These are core elements of what protects the public and reassures it (p. 21). 

According to Abele, "probable cause means that the government must have reasonable grounds for conducting searches and surveillances on U.S. persons." With the Patriot Act and FISA, probable cause is not a requirement, regardless of what the Fourth Amendment says; and only has to use suspicion for a search and seizure when it comes to terrorists threats. There are seven sections of the Patriot Act that deal probable cause. Under section 214, a warrant is not required when trap and trace devices are going to be used, just "relevance to an ongoing terrorist investigations" (Abele, 44). FBI does not have to suspect a person of performing a wrongdoing if they want to seize evidence under section 215. Section 215 allows federal investigators concerned in terrorism or national security investigation to seize "any tangible things" from businesses and other entities. FISA has required that "specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power" (Abele, 44). Section 216 says that the government uses three rubrics for probable cause when the government takes up information.

The first rubric is a government software program called Carnivore which "eats up" an entire ISP's email. This section "paves the way for a new era of national-level electronic surveillance and investigation by federal agencies, not necessarily restricted to terrorism, less susceptible to challenge, and not subject to extensive court supervision or review" (Michaels, 61). If intelligence gathering is the primary purpose, section 218 allows probable cause exceptions when wiretapping foreign agents. Under section 412, neither hearing, nor evidence production is required for jailing of immigrants. Section 412 allows suspected aliens to be detained for 7 days without charge or held for an indefinite period if determined not to be "removable." Zadvydas v. Davis said that this is only constitutional if there is a chance that the person will flee or they are a danger to society.

Section 505 forces anyone who has any information on a potential target of investigation to give it up, even if they are not a suspect of espionage. Under section 101 and 124, Patriot 101 violates probable cause. Section 101 gets rid of the requirement of probable cause for eavesdropping on American citizens, and calls it "suspicion." Section 124 allows the government to eavesdrop on any electronic device without having to prove probable cause. The Fourth Amendment requires "specificity" with consideration to this eavesdropping (Edgar). The main issue with the Patriot Act regarding civil liberties is the right to privacy. There are 12 sections that violate a persons' right to privacy. Section 203 allows federal government agencies to share the information they obtain during criminal investigations with other agencies. Section 203 abolishes virtually all of the problems to information sharing in the federal government, allowing federal agencies to share grand jury information, intercepted information, and foreign intelligence information. Roving wiretaps are allowed under section 206. Section 213 permits sneak-and-peek searches, which "violates the Fourth Amendment and also Rule 41(d) of the Federal Rules of Criminal Procedure" (Abele, 46). Section 213 is significant because it permits delay of notice for an approximate "reasonable period," Section 213 opens the possibility of vague secrecy warrant.

Sections 214 allow pen registers and trap and trace devices. According to Chang, section 215 allows FBI agents to obtain information about any person from anyway, and also requires that a judge approves of this request. Section 216 permits tracking devices for telephone and internet dialing, routing addressing and signaling information. For intelligence gathering only, section 218 allows information gained by law enforcement to be shared. Without a court order, the surveillance of spoken communication on any type of electronic device owned by a foreign government is allowed under section 104. Under section 126, the government is allowed to get hold of financial records without gaining the persons consent, their knowledge, court order, or without judicial review. Section 128 allows administrative subpoenas. Section 303 sets up national DNA database of suspected terrorists. Lastly, section 311 federalizes information sharing between all federal agency with federal, state, and local law enforcement. According to Abele, "checks and balances between the Judicial, Executive, and Legislative branches of government provide a guarantee that governmental power will not be consolidated or abused by one branch" (47). The threats to this essential construction of constitutional democracy in the U.S. may be seen in the following sections of the Patriot Act. Section 203 allows information sharing between the FBI, CIA, INS and other federal agencies without judicial oversight. Section 206 says that no judicial review of roving wiretaps is permitted.

Section 214 requires that a judge doesn't have to issue a warrant for the use of pen registers and trap and trace devices. Section 215 requires a judge to court order seizures of "any tangible thing" the Justice Department requests. Section 216 requires the judge to issue a court order for pen registers and trap and trace devices. In Section 412, no court hearings are required before jailing aliens/immigrants. Finally, in section 505, no judicial review is permitted of the activities of forcing people to turn over information on other people. Due process is a part of the Fifth Amendment, which requires the government to follow recognized rules, and not act at random. This includes the right to be presumed innocent until proven guilty, and the right to have the state proves its case beyond a reasonable doubt. The Fifth Amendment, in part, says: "No person shall be deprived of life, liberty or property, without due process of law (Abele, 49). These issues become relevant to the Patriot Act in the following ways. 411 always the government to Section 412 allows the Attorney General to hold non-citizens for up to seven days, and "for additional periods of up to six months" (Abele, 49) without charging him/her with criminal or immigration violation charges. The Patriot Act intrudes on Free Speech of the First Amendment in the following ways. Section 218 allows the surveillance of any U.S. person as long as it's for a significant purpose. Sections 215 and 215 places "gag orders" on those who have been visited by the FBI. Section 412 allows the detention and deportation of any immigrant who has verbally supported a terrorist organization.

Section 802 deals with domestic terrorism, which, according to Chang, is "acts dangerous to human life that are a violation of criminal laws that appear to be intended to influence the policy of a government by intimidation or coercion" (p. 45). Section 120 and 121 uses the definition of terrorism against any political protestor. Section 206 contradicts the usual protection of witnesses by the First Amendment by preventing grand jury witnesses from discussion any part of their testimony with anyone other than their lawyer. Section 411 creates 15 new death penalties. Although the Patriot Act causes American citizens to give up on some of their constitutional rights, when it comes to their safety, they are willing to do it. The Patriot Act has allowed federal agencies to violate the First, Fourth, Fifth, and Fourteenth amendments of the Bill of Rights. Even with these violations, it has still been successful at protecting our homeland by preventing future terrorists' attacks.

Cite this page