In the wake of September 11 the Bush administration and Congress crafted legislation designed to better equip law enforcement agencies in the battle against terrorism on American soil.
The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, commonly knows as the USA Patriot Act,
gives the government sweeping new powers to curtail activities related to terrorism. President Bush signed the Act, which passed easily in the House and the Senate, into law on October 26, 2001.
The Bush administration says the law provides the tools needed to pursue the domestic side of the war on terrorism. However, there are those concerned that the Patriot Act goes too far in its mission to protect U.S. citizens and threatens to undermine basic constitutionally protected rights such as freedom of speech and religion.
The Patriot Act contains more than 150 sections and amends some 15 federal statues, including laws that govern criminal procedure, computer fraud, foreign intelligence, wiretapping, and immigration.
Provisions that civil liberties groups, immigrant advocates and others have found particularly troubling include:
- Covert Search
The Act authorizes covert searches in any criminal investigation, enabling authorities to conduct a search in homes and any other private place. anIt also authorizes the taking of photographs and the downloading of computers without notifying the individual.
- Domestic Spying
The CIA is authorized to gather intelligence in America, on Americans, for the first time.
- Information Sharing
Information obtained during any criminal investigation can be shared between the CIA, FBI, NSA, INS, Secret Service and the military.
- Forum Shopping
Law enforcement can seek warrants from any jurisdiction to initiate a search anywhere in the country.
- Detention of Non-citizens
Authorities can detain non-citizens for up to seven days without charge and without judicial review.
- Expanded Wiretap Authority
Judicial review of wiretap authority is limited in several ways, including the sanctioning of "blank" wiretaps without probable cause.
- Records Access
The FBI is authorized to secure and search bookstore and library records without judicial review.
One of its strongest opponents, the American Civil Liberties Union, has called the Patriot Act a "surveillance monster," arguing that there are virtually no checks on how the government may use its expanded authority. Other opposing groups says the Act threatens First, Fourth, Fifth, Six, Eighth and Fourteenth Amendment rights and gives the Executive Branch sweeping new powers that undermine the Bill of Rights.
David Cole, professor at Georgetown University, agrees. The Act, he says, "gives the government authority to spy on its citizens without probable cause." Cole admits that some trade-off is necessary when assessing security needs versus individual liberties, but warns "it is one thing to make sacrifices — it is another to throw the Fourth Amendment out the window."
However, the Act's supporters say it provides the necessary authority and tools for law enforcement to fight a clear and constant terrorist threat. Viet Dinh, former Assistant Attorney General in the Justice Department's Office of Legal Policy and chief architect of the Patriot Act, believes that information is the key to the prevention of terrorist attacks.
Further, he says, the protection of civil liberties was always a specific goal when drafting the legislation. His mission was to prosecute the war on terrorism in the short term while winning the war in the long term. He took on the mission with the "aim that security only exists for the ultimate goal of liberty."
In the Courts
While the Act contains numerous legal changes in areas such as immigration and finance law and surveillance and information gathering many provisions have already been upheld in the courts. In November 2002, a federal appeals court, overturning a previous ruling, said that the government should have expanded authority to use wiretaps and other surveillance techniques in its effort to track suspected terrorists, and that those expanded powers do not violate the Constitution.
In June 2003 a federal appeals also court ruled that the Justice Department properly withheld the names and other details about hundreds of foreigners detained in the months after the September 11 attacks.
Many sections of the Patriot Act have a "sunset" provision, meaning they will expire or have to be adjusted in 2005. According to Dinh the future of the Patriot Act lies in congressional involvement and the ability of the Congress to "assess how we have been able to use the Act."
Last spring, Attorney General John Ashcroft went before Congress to ask for an expanded USA Patriot Act. He testified that "our ability to prevent another catastrophic attack on American soil would be more difficult if not impossible without the Patriot Act" but that "the law has several weaknesses which terrorists could exploit, undermining our defenses." The controversy and legal battles surrounding the Patriot Act are sure to continue and even to grow.
Read key provisions of the USA Patriot Act, Bryant Gumbel's interview with Viet Dinh and David Cole or add your comments to our online discussion.