USA PATRIOT Act: Imperfect but Necessary

The violent loss of almost 3,000 innocent American lives on September 11, 2001 revealed a need for greater security. This has set into effect many actions such as the passing of the USA PATRIOT Act, bringing changes, for example, in the way the government conducts searches. Supporters say that, because of the USA PATRIOT Act, America can better defend itself against terrorist threats. On the other hand, its opponents argue that the act violates Fourth Amendment rights such as “The right of the people to be secure in their …houses… and effects.…” Objectors make generalizations about the act, many exaggerated or untrue. However, these objections seem weak because of the law’s soon-to-come expiration, its continued pruning by the courts, and its probable changes in the future. As a nation, we have unique freedoms that no other peoples have; which of those freedoms would we sacrifice to maintain our security? Were the measures taken after September 11th necessary? Some parts of the USA PATRIOT Act are not perfect, but it was necessary.
The USA PATRIOT Act was the most controversial of several measures taken after the September 11th attacks. The government wanted a greater ability to intercept terrorist communications, to investigate and detain suspects of terrorism, and to use the immigration laws to exclude or deport individuals linked to terrorism. Congress, therefore, passed the USA PATRIOT Act in October 2001.
The USA PATRIOT Act gives new powers to officials and law enforcers such as the FBI and CIA. The Act gave law enforcement and intelligence greater authority to conduct searches, in some cases without notifying the individual prior to the search. They also now have the freedom to wiretap, monitor email, and to access information from library, bookstore, bank, and medical records. Before the act, two FBI departments could be working on the same case in adjacent offices and would not have the ability to share information. However, it is scheduled to expire at the end of 2005.
Those against the act generalize its meanings and charge that it threatens civil rights. Not all generalizations are true. The statement “all lawyers are liars” may seem true, but exceptions exist. If you judge a book by its cover, you may generalize that the book is no good and not worth your time reading when you might actually enjoy reading it. In the same sense, many have heard of the USA PATRIOT Act and generalized its faults.
Among the areas protested in the USA PATRIOT Act are sections 213, 214, 215, and 218. These sections appear, to many, to violate the Fourth Amendment. Section 213 allows courts, in certain circumstances, to give delayed notice that a search warrant has been executed. Objectors claim that this expands the government’s ability to, without notice to the owner, search private property. For decades, law enforcement has had the authority codified in Section 213. Different jurisdictions across the country, however, had widely inconsistent standards. The lack of uniformity prevented investigators and prosecutors from solving and trying difficult terrorism cases. By establishing a uniform legal standard, section 213 solves this problem. This section provides an essential legal tool for detecting and neutralizing terrorists before they strike.
Supreme Court rulings set precedent for Section 213. In Dalia v. U.S., the Supreme Court held that the Fourth Amendment does not require law enforcement to give immediate notice of the execution of a search warrant (Dalia v. U.S., 441 U.S. 238 (1979)). As the Supreme Court stated in its decision, “covert entries are constitutional in some circumstances, at least if they are made pursuant to a warrant.” The Court labeled, furthermore, that an argument to the contrary “frivolous.” In Katz v. U.S., the Court said, “officers need not announce their purpose before conducting an otherwise authorized search if such an announcement would provoke the escape of the suspect or the destruction of critical evidence” (Katz v. U.S., 389 U.S. 347 (1967)).
Section 213 requires, in all cases, that law enforcement give notice that property has been searched or seized. However, it does allow agents temporarily to delay the delivery of the required notification. The government can use this authority only upon the issuance of a court order, and only in circumstances such as when immediate notification may result in death or physical harm to an individual, flight from prosecution, evidence tampering, or witness intimidation.
Under section 213, courts can delay notice if there is “reasonable cause” to believe that immediate notification may have a specified negative result. This “reasonable cause” standard agrees with pre-PATRIOT Act case law for delayed notice of warrants. For example, in United States v. Odeh, a recent case, a court issued a section 213 warrant in connection with the search of an envelope that had been mailed to a target of a narco-terrorism investigation. The search confirmed that the target was operating an illegal money exchange that funneled money to the Middle East, including to an individual associated with an alleged operative for Islamic Jihad in Israel. According to the DOJ, “The delayed-notice provision allowed investigators to conduct the search without fear of compromising an ongoing wiretap on the target and several of the confederates. The target was later charged and notified of the search warrant.”
A device that can track routing and addressing information about a communication is a pen register. For example, pen registers would include devices that record the numbers dialed by a particular telephone. Pen registers do not collect the content of communications. Section 214 allows the United States to obtain a Foreign Intelligence Surveillance Act (FISA) Pen Register Order by certifying that the resulting information would be relevant to an investigation to protect against international terrorism or secret intelligence activities. The section streamlines the process for obtaining pen registers under FISA while preserving the existing court-order requirement.
According to the ACLU, “The amendment significantly eviscerates the constitutional rationale for the relatively lax requirements that apply to foreign intelligence surveillance.”
To the contrary, however, under Supreme Court precedent Smith v. Maryland, 442 U.S. 735, 744 (1979), the use of pen registers does not constitute a “search” within the meaning of the Fourth Amendment. The court ruled that the Constitution does not require law enforcement to obtain court approval before installing a pen register. The ruling explains that, “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties,” and “when he used his phone, petitioner voluntarily conveyed numerical information to the telephone company.”
Section 215 allows the FISA court, in an investigation to protect against international terrorism or covert intelligence activities, to issue an ex parte (involving only one party to a legal matter and in the absence of and usually without notice to the other party) order requiring the production of any tangible things. Under the old provision, the FBI could obtain records only from “a common carrier, public accommodation facility, physical storage facility or vehicle rental facility.” The new provision contains no such restrictions. Under the old authority, the FBI could only seek “records.” Now, the FBI can seek “any tangible things (including books, records, papers, documents, and other items).”
The ACLU claims,
Many [people] are unaware that their library habits could become the target of government surveillance. In a free society, such monitoring is odious and unnecessary.... The secrecy that surrounds section 215 leads us to a society where the ‘thought police’ can target us for what we choose to read or what Websites we visit.
Obtaining business records is a long-standing law enforcement tactic. For years, ordinary grand juries have issued subpoenas to all manner of businesses, including libraries and bookstores, for records relevant to criminal inquiries. Section 215 authorized the FISA court to issue similar orders in national-security investigations. It contains a number of safeguards that protect civil liberties. Section 215 requires FBI agents to get a court order.
Section 215 has a narrow scope. It can only be used “to obtain foreign intelligence information not concerning a United States person” or “to protect against international terrorism or clandestine intelligence activities.” It cannot be used to investigate ordinary crimes or domestic terrorism. Section 215 provides for congressional oversight: Every six months, the Attorney General must “fully inform” Congress on how the DOJ has implemented the section.
In a recent domestic terrorism criminal case, a grand jury served a subpoena on a bookseller to obtain records showing that a suspect had purchased a book giving instructions on how to build an unusual detonator that he had used in many bombings. This was important evidence identifying the suspect as the bomber. On the other hand, the courts have struck down portions of the act. U.S. District Judge Victor Marrero struck down a provision of the USA PATRIOT Act that authorizes the FBI to force Internet service providers and phone companies to turn over certain customer records. The judge said the law violates the Fourth Amendment because it bars or deters any judicial challenge to the government searches.
Section 218 encourages an integrated antiterrorism campaign by allowing the use of FISA whenever “a significant purpose” of the investigation is foreign intelligence. The standards for obtaining evidence for use in a criminal case are stricter than the standards for evidence obtained in counterterrorism cases. Defense attorneys fear that, if investigators gave evidence collected for counterterrorism to prosecutors, they might unfairly use evidence obtained in violation of civilian Fourth Amendment protections to convict their clients. Section 218 changes the standard for a search from “primary purpose” to “significant purpose” and allows cooperation between intelligence and law enforcement organizations.
The ACLU complains that Section 218
permits the FBI to conduct a secret search or to secretly record telephone conversations for the purpose of investigating crime even though the FBI does not have probable cause of crime. The section authorizes unconstitutional activity – searches and wiretaps in non-emergency circumstances – for criminal activity with no showing of probable cause of crime.
Before the USA PATRIOT Act, courts had ruled that FISA could be used only when foreign intelligence was the “primary purpose” of an investigation. Intelligence investigators feared that sharing information with and seeking advice from law enforcement investigators and prosecutors could mean the loss of FISA coverage. Section 218 expressly permits the full coordination between intelligence and law. Now, they can use FISA when foreign intelligence is a “significant purpose.”
Generally, a court can order surveillance or a search under FISA only if it finds probable cause that the target is a foreign power or an agent of a foreign power. In In re Sealed Case, 310 F.3d 717, 746 (FISCR 2002), the Foreign Intelligence Surveillance Court of Review upheld in full section 218, as well the Department’s procedures to implement it. The court expressly held “that FISA as amended is constitutional because the surveillances it authorizes are reasonable.”
This provision has already produced important dividends in the war on terror, such as the indictment of Sami al-Arian, an alleged member of a Palestinian Islamic Jihad (PIJ) cell in Tampa, Florida. One of the world’s most violent terrorist organizations, PIJ has murdered over 100 innocent people, including Alisa Flatow, a young American killed in a bus bombing near the Israeli settlement of Kfar Darom.
Opponents of the USA PATRIOT Act claim that it violates citizens’ Fourth Amendment rights “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures… but upon probable cause….” Many of the specific claims by the ACLU and other organizations prove to be exaggerations or generalizations, and several have strong legal precedent against them. The courts have even ruled some concerns invalid. Courts have also tested other objections and excesses of the USA PATRIOT Act. In addition, we can expect correction of any remaining excesses either in the courts or during congressional debate prior to the extension of the USA PATRIOT Act before it expires in 2005. In the meantime, the USA PATRIOT Act has been a critical tool in the war on terrorism. It is imperfect, but necessary.
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