On Oct. 26, 2001, in an effort to strengthen the nation's counterterrorism capabilities, President Bush signed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot) Act. The Justice Department credits the Patriot Act with "breaking down the walls" that previously hindered communication between the FBI and CIA and the attorney general toured the country this past August to promote the bill as a powerful tool in the fight against terrorism. Both the FBI and the Justice Department credit the Patriot Act with having played a key role in the Lackawanna arrests.
But in the two years since the legislation was approved by 83 percent of the House and 98 percent of the Senate, it has come under harsh criticism from both the political left and the right as a threat to Americans' rights as guaranteed by the Constitution and Bill of Rights.
In this section, FRONTLINE takes a closer look at the controversial sections of the bill and summarizes efforts made in Washington to defend, revise, repeal, or fend off the legislation. FRONTLINE also looks at the states and communities which have passsed resolutions declaring themselves "Civil Liberties Safe Zones" in reaction to elements of the Patriot Act.
PROPOSED LEGISLATION TO SUPPORT THE PATRIOT ACT
· The Patriot Act II
With the exception of 11 sections, including Section 213, which authorizes "sneak and peek warrants," the PATRIOT Act is set to expire on Dec. 31, 2005. This "sunset clause" has led to speculation that the government will pass an even stronger piece of counterterrorism legislation. Rumors of a "Patriot Act II" were confirmed when, on Feb. 7, 2003, the Center for Public Integrity revealed it had a copy of a proposed Domestic Security Enhancement Act of 2003. In a statement, the Justice Department denied that this was a final proposal, and it has never been introduced to Congress. However, according to CPI's report, a "control sheet" dated Jan. 10, 2003 that was obtained by PBS's NOW with Bill Moyers, indicated a draft had been sent to House Speaker Dennis Hastert and Vice President Cheney for their review.
Among the more controversial aspects of the document was the "expatriation of terrorists" clause that would strip American citizens of their citizenship if they become a member of a terrorist organization or are found to have provided material support.
The document leak effectively killed this particular piece of legislation, but critics fear that the Bush administration will now attempt to pass elements of it piecemeal or piggybacked onto other legislation.
Read former U.S. Deputy Attorney General Alice Fisher's comments on the PATRIOT Act II.
· Antiterrorism Tools Enhancement Act of 2003
Introduced to the House by Rep. Tom Feeney (R-Fla.) on Sept. 9, 2003, this bill (HR 3037) would give the attorney general, FBI, or any other "agent of service" the power to serve an administrative subpoena in a terrorism case. Similar to the provision of the Patriot Act that allows for the investigation of library records in secret, an administrative subpoena requires the "production of any records" from third parties, such as businesses or hospitals, as well as the possibility that they would be called as a witness in the case. HR 3037 contains a "nondisclosure requirement" that prevents these parties from revealing that they've been served with a subpoena, but it does provide them with the opportunity to challenge the requirement, "unless there is reason to believe that the nondisclosure requirement is justified because otherwise there may result a danger to the national security." The bill has been referred to the House Subcommittee on Crime, Terrorism, and Homeland Security.
· VICTORY Act
According to an Aug. 6, 2003 report in the New York Daily News and an Aug. 20, 2003 ABC News story, Sen. Orrin Hatch (R-Utah) plans to introduce the Vital Interdiction of Criminal Terrorist Organizations (VICTORY) Act this fall. It connects certain drug trafficking crimes to terrorism and defines the term "narco-terrorist" as:
Any person who ... manufactures, distributes, imports, exports, or possesses with intent to distribute or manufacture a controlled substance, flunitrazepam, or listed chemical, or attempts or conspires to do so, knowing or intending that such activity, directly or indirectly, aids or provides support, resources, or anything of pecuniary value to--
1) a foreign terrorist organization or
2) any person or group involved in the planning, preparation for, or carrying out of, a terrorist offense
The bill increases existing fines and prison sentences for drug offenses that fall into this category. It also extends money-laundering laws to include hawala, a traditional South Asian method of remittance that involves moving cash around the world outside of the international banking system.
Under a section entitled "Tools needed to win the war against narco-terrorism," the bill outlines an administrative subpoena procedure similar to that named in Tom Feeney's Antiterrorism Tools Enhancement Act (above).
PROPOSED LEGISLATION TO CURTAIL THE PATRIOT ACT
· Library and Bookseller Protection Act
Introduced to the Senate on May 23, 2003 by Barbara Boxer (D-Calif.), this bill seeks an exemption for bookstores and libraries from the "production of tangible things" as outlined in Section 215 of the Patriot Act. The bill would also exempt libraries from being considered Internet Service Providers, in order to protect users of public computers from being the targets of government surveillance. It has been referred to the Senate Committee on the Judiciary.
· "Sneak and Peek" amendment
On July 22, 2003, an amendment (H.AMDT.292) to a bill allocating funds to the Justice Department was passed 309-118 in the House of Representatives. Proposed by Rep. C.L. "Butch" Otter (R-ID), the amendment prohibits the use of Justice Department funds to delay notice of a warrant's execution, as outlined in Section 213 of the Patriot Act. In a press release dated Aug. 1, 2003, Otter expressed hope that the Senate would adopt a provision similar to the one he proposed to the House. However, the Justice Department successfully lobbied so that the amendment did not make the final copy of the Congressional spending bill, effectively killing the measure for the 2003-2004 session.
· Protecting the Rights of Individuals Act
On July 31, 2003, Sen. Lisa Murkowski (R-Alaska) and Sen. Ron Wyden (D-Ore.) introduced S 1552, the "Protecting the Rights of Individuals Act." The bill seeks to amend the changes made by the Patriot Act to the Foreign Intelligence Surveillance Act (FISA). Among the more significant actions would be to amend Section 213, replacing the term "reasonable period" for a delay in a warrant notice with "seven calendar days," and requiring the attorney general, deputy attorney general, or an associate attorney general to ask the court for subsequent seven-day extensions.
The bill also requires the government to "include a statement of facts and circumstances relied upon" in the application for a FISA warrant to justify that the subject is an agent of a foreign power. The bill calls for the de-classification of libraries as Internet Service Providers, lays out stricter guidelines for "data mining," and requires the attorney general to provide detailed reports on orders for the specific types of surveillance permitted by the Patriot Act. Finally, it refines the Patriot Act's definition of 'domestic terrorism', and it changes the terms defined in Section 218: "a significant purpose" would be replaced with "the primary purpose." The bill has been read twice in the Senate and referred to the Committee on the Judiciary.
· Library, Bookseller, and Personal Records Privacy Act
On July 31, 2003, Senator Russ Feingold (D-Wis.), with the backing of eight other senators, introduced this bill to the Senate that would amend FISA to require law enforcement to not only provide evidence that a records request is in the interest of foreign intelligence, but also that the individual in question is suspected of being a member of a foreign power. The bill also singles out requests for information from libraries and booksellers as instances where the subject in question must be proven to be an agent of a foreign power. This bill has been referred to Senate Committee on the Judiciary.
· The Benjamin Franklin True Patriot Act
Citing Franklin's famous line, "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety," this bill seeks to eliminate those sections of the Patriot Act that "inappropriately undermine civil liberties." This bill was introduced by Rep. Dennis Kucinich (D-Ohio) on Sept. 24, 2003, and would end the application of 11 PATRIOT Act sections, including Sections 213 ("sneak and peek"), 215 (records request), and 802 (domestic terrorism defined), 90 days after its passage. It would also remove a law that bars non-citizens from being employed as baggage checkers and eliminate closed immigration hearings and attorney-client monitoring. The bill has been referred to the House Subcommittee on Immigration, Border Security, and Claims.
CIVIL LIBERTIES "SAFE ZONES"
In response to the Patriot Act, three states and over 230 communities have passed resolutions declaring themselves "Civil Liberties Safe Zones." The legislation varies in each instance; typically it reaffirms the nation's desire to combat terrorism but takes issue with elements of the Patriot Act that the lawmakers feel encroach on the Bill of Rights. Here are a few examples taken from individual resolutions, including the dates on which they were passed:
· Santa Fe, New Mexico
Resolved that local police "continue to preserve and uphold residents' freedom of speech, assembly, association, and privacy, the right to counsel and due process in judicial proceedings, and protection from unreasonable searches and seizures, even if requested to do otherwise and infringe upon such rights by federal or state law enforcement agencies acting under new powers created by the USA PATRIOT ACT or by Executive Order" Also directs New Mexico's Congressional delegation to be on the lookout for "COINTELPRO-type regulations." (Oct. 20, 2002)
· Blount County, Tennessee
Calls upon all residents to study the Bill of Rights "so that they can recognize and resist attempts to undermine our Constitutional Republic." And also "declare[s] null and void all future attempts to establish Martial Law, Declared States of Emergency or War by Elected or Appointed officials, Congressional legislation, Presidential Decision Directives, Executive Orders, international treaties and agreements with the United Nations or the State of Tennessee that would compromise these GOD GIVEN RIGHTS. [sic]" (Feb. 27, 2003)
· State of Alaska
State agencies are barred from participating in intelligence investigations that would require the acquisition or retainment of information or property, "even if authorized under the USA PATRIOT Act." (May 21, 2003)
· State of Vermont
Protects libraries from "a federal suit or administrative enforcement action" if they do not comply with a demand for records. (May 28, 2003)
· Philadelphia, Pa.
"Affirms the rights of all people, including United States citizens and citizens of other nations," according to the Bill of Rights and the 14th Amendment. (May 29, 2003)
· Astoria, Ore.
Urges its Congressional delegation to work to revoke "any proposed new Federal legislation and Executive Orders which limit or violate fundamental rights and liberties" and also declares Dec. 15 "Bill of Rights Day." (June 23, 2003)
· Oxford, Ohio
City officials and private citizens alike should respect the civil rights and liberties of all citizens and non-citizens. Public schools are asked to give notice to those individuals whose records have been requested; libraries asked to post notice that individuals' records have been investigated. (Aug. 19, 2003)
On July 30, 2003, the American Civil Liberties Union (ACLU) filed a lawsuit against the Patriot Act, challenging the section that authorizes the acquisition of records as unconsitutional. According to the complaint, providing law enforcement with the right to search or seize property in secret violates the Fourth Amendment, which states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The lawsuit also claims that the clause within this section that forbids participating parties from disclosing that they were a part of a search violates the First Amendment, as does the clause permitting law enforcement to examine library records, Internet usage, and other "expressive" activity. Filed in a Detroit district court, the suit names FBI Director Robert Mueller and Attorney General John Ashcroft as defendants, and was filed on behalf of six community groups that provide services to Arab-Americans.
In its July 2003 report, Unpatriotic Acts: The FBI's Power to Rifle Through Your Records and Personal Belongings Without Telling You, the ACLU makes its case against Section 215:
Section 215 was specifically intended [sic] to authorize the FBI to obtain information about innocent people -- people who are not engaged in criminal activity or in espionage. Of course, not all innocent people are likely to be equally affected. As it has done in the past, the FBI is once again targeting ethnic, political, and religious minority communities disproportionately. In the war on terrorism, the FBI has unfairly targeted minority and immigrant communities with its surveillance and enforcement efforts.
In addition to outlining the grounds for its constitutional complaint, the ACLU states in its report that it would like to see the repeal of Section 215 altogether. On Dec. 3, 2003, both sides in the case presented their arguments to Judge Denise Page Hood of the U.S. District Court in Detroit. The government argued for dismissal; the case is pending.
THE BUSH ADMINISTRATION'S RESPONSE
Although the ACLU has been one its most vocal opponents, the Patriot Act has drawn the ire of a bipartisan set of activist groups large and small. In response to the widespread criticism of the Patriot Act, Attorney General John Ashcroft embarked on a 12-city tour in August 2003 to promote the merits of the legislation. In conjunction with the start of his tour, the attorney general announced the launch of a new Web site, http://www.lifeandliberty.gov/. The Web site is an effort put forth by the Department of Justice to better explain the Patriot Act, dispel the myths surrounding it, and laud the triumphs achieved thus far in the war against terror. Speaking at engagements attended by law enforcement officials but closed to the public, Ashcroft drew heavily upon the memory of Sept. 11. He also touted the merits of the new laws in remarks to the American Enterprise Institute:
Congress responded by passing the USA Patriot Act by an overwhelming margin. And while our job is not finished, we have used the tools provided in the Patriot Act to fulfill our first responsibility to protect the American people. We have used these tools to prevent terrorists from unleashing more death and destruction on our soil. We have used these tools to save innocent American lives. We have used these tools to provide the security that ensures liberty.
Ashcroft's national tour set off a fresh firestorm of debate in each city he visited, prompting opinions both for and against this legislation that has become the number one priority for civil liberties activists.
In his January 2004 State of the Union address, President Bush noted that key provisions of the Patriot Act are set to expire in 2005 and he called on Congress to renew the legislation. "We must continue to give our homeland security and law enforcement personnel every tool they need to defend us," the president said. "For years we have used similar provisions to catch the embezzlers and drug traffickers. If these methods are good for hunting criminals, they are even more important for hunting terrorists."
JANUARY 2004 RULING ON THE PATRIOT ACT
On Jan. 23, 2004, in a California federal court, U.S. District Judge Audrey Collins ruled that Section 805 of the Patriot Act, which classifies "expert advice or assistance" as material support to terrorism, is unconstitutional. David Cole served as attorney for the Humanitarian Law Project in this suit against Attorney General John Ashcroft that involved assistance provided to the Kurdistan Workers Party and the Sri Lankan Tigers of Tamil Eelam. Groups providing aid to these organizations had ceased their activities for fear of violating the Patriot Act, and they filed a lawsuit against the Departments of Justice and State to challenge the law, claiming the phrase "expert advice or assistance" was too vague. The Justice Department argued that the plaintiff's efforts to aid these groups did not fall into the category of "expert," nor would they have faced a serious threat of prosecution. Judge Collins, however, agreed with the plaintiffs, and ruled that Section 805 was in violation of the First and Fifth Amendments.
In response to the ruling, the Department of Justice released a statement saying it was reviewing Judge Collins' decision and defending Section 805. "The provision at issue in today's decision was a modest amendment to a pre-existing anti-terrorism law that was designed to deal with real threats caused by support of terrorist groups," Justice Department spokesman Mark Corallo said in a Jan. 26, 2004 statement. "By targeting those who provide material support by providing 'expert advice or assistance,' the law made clear that Americans are threatened as much by the person who teaches a terrorist to build a bomb as by the one who pushes the button."