The main focus of this research paper is to study expansion of the government surveillance capacity. This study included the history of the Patriot Act, executing of the Act ,and the struggle of the American society against the use of this law. To have a deep understanding of the topic dependable internet sources have been used. They included academic sources, such as, Public Law 107-56 107th Congress, the works of Ronald B. Standler and Matthew Robinson, articles by David D. Cole, professor of Georgetown University. The research on the use of the Patriot Act presents alarming signs of misuse of federal power in fighting terrorism. The authority granted by the Patriot Act allows investigating libraries and bookstores, use of intelligence wiretaps, and thus, conducting surveillance of random U.S. citizens. Additionally, the research reveals that the American society can put up a resistance to the use of the most controversial provisions of the Patriot Act. The society can resist at different levels - congressional, legal, and by demonstration of the protest.
Keywords: Patriot Act, terrorism, surveillance, society, resistance, liberties
The Patriot Act is a statute ordained by the Congress of the United States in response to terrorist attacks in September 2001. The enactment was issued on October, 26, 2001, and signed into law by George W. Bush., the former President of the United States.
According to 107th Congress Public Law 56, the letters of the acronym “USA Patriot” stand for “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001” (2001). The purpose of the Patriot Act is stated in the final bill, H.R. (Human Rights) 3162 which was introduced by Jim Sensenbrenner. The bill ensures deterrence and punishment of terrorist acts not only on the territory of the United States but worldwide. It is also supposed to improve law enforcement tools for investigation and other related purposes (107th Congress Public Law 56, 2011).
The Patriot Extension Act was issued in 2011 and signed by the American President, Barack Obama on May 26, 2011. Three key provisions added to Act include: the ‘library records provisions’ that provided business records, the use of intelligence wiretaps and conducting surveillance of individuals who were suspected in terrorist related activities even if they were not connected with terrorist groups.
The Patriot Act was widely discussed and decried by many libertarians and Constitutional scholars. For example, Libertarian Party Chairman Mark Hinkle, made the following remark, “These provisions are unconstitutional and violate our right and freedom from unreasonable searches and seizures. These provisions should be repealed; they ought to be ruled unconstitutional by the courts” (2011). Current research aims to expose the increase of the government’s surveillance capacity through the use of the Patriot Act. It will describe the history of the Patriot Act and the ways the American society fought against the use of it
The History of the Patriot Act
The history of the Patriot Act is closely linked to the terrorist attacks on the Pentagon and the World Trade Center. Nearly 3000 people lost their lives in those attacks. In a month, on October, 15, 2001, another incident took place – a letter that contained anthrax spores was mailed to Senator Daschle. Some of the buildings of the American Congress were closed and tested for the spores and the following decontamination. Then, in the middle of November same year, a letter contaminated with anthrax was detected in post mail addressed to another senator, who was the chairman of the Senate Judiciary Committee.
From the context of the information above it appears that not only the United States were subjected to terrorism, but individual members of the U.S. Congress as well. As Ronald B. Standler (2008) noted in his work Brief History of the USA PATRIOT Act of 2001:
There was an understandable sense of urgency in Congress to give additional legal tools to law enforcement and foreign intelligence, to help them prevent future terrorist attacks. Furthermore, there was intense political pressure from Attorney General Ashcroft for Congress to quickly pass new statutes in a matter of days.
Thus, voting for the Patriot Act in U.S. Congress was held under significant political pressure. Apparently, many representatives and senators did not have a chance for a careful study of the above mentioned legal document. American Civil Liberties Union, in its article Surveillance under the USA PATRIOT Act, noted that senators had little chance for reading and much less for analyzing the Patriot Act before they voted (2010). Furthermore, it appeared that very few members of the American Congress had understanding and respect of the First and Fourth Amendments to the Constitution of the United States. These Amendments were enacted to protect American people against unjustified searches and seizures. By their approval of the Patriot Act, congressmen also changed the balance of power between Judicial, Legislative and Executive branches in the Government of the United States. Due to the lack of legal expertise in the U.S. Congress, the content of the changed statutes was a matter for the Executive branch (the FBI and CIA) legal experts to draft. Such a quick and irresponsible decision of the majority of Congressmen can be explained by their desire to do something immediately in order to prevent possible terrorist attacks (Standler, 2008).
It may appear that the members of the Congress had been negligent in their duties before September, 11, 2001, as a number of statutes seemed to be outdated and required amendment. Either way, the U.S. Congress underperformed when it did not consider the text of the Patriot Act and passed unconstitutional statutes (Standler, 2008).
The article, published by The Washington Post, described the history of the Patriot Act from a prospective of patriots of the United States. It highlited the fact that many concerned people, both conservatives and liberals, resisted the hasty approval of the Patriot Act, providing an example of Jim Dempsey, a Senior Council for Democracy & Technology. According to it, “Since 1990s, he has been one of the leading watchdogs of FBI surveillance initiatives, a reasoned and respected civil liberties advocate routinely summoned to the Hill by both political parties to advise lawmakers about technology and privacy issues” (2002). As soon as he found out about an attack at the World Trade Center, Hill was sure that it was terrorists who bore responsibility for the accident. On the other hand, Jim Dempsey also knew that the FBI (The Federal Bureau of Investigation) bore responsibility for failing to prevent that attack. The Washington Post noted that at that moment, “It dawned on him that his work – and the work of many civil liberties activists over the years to check the increasing aggressive use of technology by law enforcement officials was about to be undone” (2002).
The vote of the U.S. Congress showed that Jim Dempsey was right. Those who opposed were in a minority in the Congress, hence, they did not have a chance to stop those politicians who wanted to act immediately to prevent possible terrorist attacks in the future.
Execution of the Patriot Act
During the first two years as the USA Patriot Act was implemented, it was known very little of how this law was being used in practice. The Act did not provide any restrictions for tracking American citizens along with terrorists. The Justice Department was very reluctant to give any information concerning execution of the Patriot Act. In fact, the Department rejected many attempts initiated by civil libertarians and lawmakers to find out how the White House Administration used new tools provided by the Patriot Act. FEPP Senior Research Fellow, Nancy Kranich, in her article The Impact of the USA PATRIOT Act, noted that the U.S. Congress meetings did not release any new information about court orders obtained to monitor person’s computer activity or the use of library records of American citizens. Surveillance of innocent people was a matter of great concern among the civil libertarians and lawmakers but it seemed that the matter was not under their control anymore. Justice officials explained their unwillingness to provide any information by the fact it was classified, and could be disclosed to intelligence committee of the U.S. Congress only (Kranich, 2009).
The issue of releasing the information regarding the conduct of surveillance under the Patriot Act took two years. A breakthrough over the issue came in 2003. The Justice Department supplied a response to questions addressed by James Sensenbrenner, House Judiciary Chairman. The response provided some information regarding domestic war on terrorism conducted by the federal government. In his work Freedom in an Era of Terror: A Critical Analysis of the USA Patriot Act Matthew Robinson gave his comments on that response stating that the author of the report asserted importance of anti-terrorism measures undertaken after the terrorist attacks on September 11 as they allowed disrupting plots designed by the terrorists. However, the author also confirmed the fact that the Justice Department took an advantage of these anti-terrorist measures to pursue criminal activity unrelated to domestic terrorism such as credit card fraud, drug activity and bank robbery (Robinson, 2007).
Though this type of information gave some idea to an American public of how the Patriot Act was being used in practice, the information sought by civil libertarians and lawyers was not provided in the report. FEPP Senior Research Fellow, Nancy Kranich, in her article The Impact of the USA PATRIOT Act gave the following comment, “The report released to the public excludes any mention of searches imposed on libraries and bookstores, as allowed under section 215 of the PATRIOT Act.” (Lichtblau, 2009).
On May, 21, 2003, The New York Times, informed its readers with the statement of Viet Dinh, Assistant Attorney General on this issue. In his statement Dinh asserted that federal agents that were involved with terrorist investigation contacted 50 libraries in the United States. He also mentioned that many of the contacts were made at the invitation of librarians (2003).
We could only imagine the extent of the surprise when librarians found out from the University of Illinois report that they had informed federal agents about suspicious activity following terrorist attacks in September, 2001. To avoid misunderstanding with the librarians, spokeswoman for the Department of Justice, Barbara Comstock had to issue a correction admitting inaccuracy in the statement of Viet Dinh (Kranich, 2009).
The matter of searches and seizures was intentionally ignored by Attorney General Ashcroft as well. He made his first appearance for testifying before the House Judiciary Committee only 18 months after the attacks Ashcroft evaded many questions concerning the surveillances of libraries and bookstores, but took courage to ask for more surveillance powers. The U.S. Representative from the Democrats, William Delahunt, expressed his disapproval as follows:
It appears that the American people feel that the government intent on prying into every nook and cranny of people’s private lives, while at the same time doing all it can to block access to government information that would inform the American people as to what is being done in their name (Southern Poverty Law Center, 2003).
Struggle Against the Effect of the Patriot Act
The impact of the Patriot Act raised a great public concern. It prompted Bernie Sanders, a member of the Congress to institute a new legislation in order to oppose some of the flagrant provisions of the Act. The Congressman started to act in February 2003, and by the middle of August 2003 he managed to gather over 130 sponsors in addition to 24 co-sponsors that he had had before. Surprisingly to his opponents, Sanders gained support from representatives of both the Democrats and the Republicans. The Bill “Freedom to Read Protection Act.” introduced by the Congressman Sanders was intended to release libraries and bookstores from keeping the requirement of section 215 of the Patriot Act. At the same time it would set a higher standard of evidence for search warrants in the libraries and bookstores.
Finally, some of the U.S. Congress members filed a request to the House Judiciary Committee Chairman, Jim Sensenbrenner, to hold hearings on “Freedom to Read Protection Act,” H.R. 1157. However, an attempt to include this bill as an amendment to the Patriot Act legislation was denied for technical reasons. Other attempts to consider H.R. 1157 in the Congress proved ineffective either due to resistance of Jim Sensenbrenner or the attitude of the House Judiciary Committee (Kranich, 2009).
Lawsuit Challenges to the Patriot Act
When the public interest community learned that the attempts to include “Freedom to Read Protection Act” to the Patriot Act legislation failed, the community began challenging provisions of the Act through the courts. The first lawsuit was filed by the American Civil Liberties Union in the federal court in Michigan in 2003. In the suit the Union made a claim that section 215 of the Patriot Act violated the rights of the U.S. citizens granted by the First Amendment.. The case was filed upon the request of six community groups and civil society organizations including Arab-American and Muslim groups. The community and society groups believed that they were the targets of the FBI investigations due to their ethnicity and political preferences. FEPP Senior Research Fellow, Nancy Kranich, in her article The Impact of the USA Patriot Act, made the following comment to this lawsuit:
It charges that the law’s search warrant standard falls short of the probable-cause requirement in the Fourth Amendment, and that the breadth of information that can be accessed by the government, as well as the ‘gag order’ imposed on libraries and other holders of information, chills free expression (Kranich, 2009).
Eventually, the Center for Constitutional Rights made a federal constitutional challenge to the Patriot Act in Los Angeles. This time the case was filed on request of the Humanitarian Law Project. The major issue of the suit was a question regarding the expert advice to groups related to international terrorism. As Professor of Georgetown University David D. Cole commented on the case and the decision of federal judge Collins:
Collins rules that the ban on providing ‘expert advice or assistance’ is impermissibly vague, and violates the First and Fifth Amendments. The advice or assistance forbidden under the act ‘could be construed to include unequivocally pure speech and advocacy protected by the First Amendment’, Collins writes (2004).
Therefore, some parts of the Patriot Act were acknowledged unconstitutional under the court decision. The efforts by the civil society organizations and community groups were eventually successful in their struggle against provisions of the Patriot Act. Though, the struggle did not cease after the first successful challenge. In 2006 former federal officials and 14 law professors stood up criticizing the Justice Department for supporting the NSA (National Security Agency) surveillance program. Though, they were not successful, they encouraged American society not to give up their struggle. Among the recent challenges to the Patriot Act was ACLU(American Civil Liberties Union) lawsuit against phone surveillance under the NSA Patriot Act. With this suit, the Union challenges Section 215. The Union tries to learn governmental secrets of interpreting the law in the light of the the Freedom of Information Act requirements (Kaufman, 2013). This legal document allows the U.S. citizens to access information from the U.S. government (FOIA.gov, n.-d.).
Mounting Public Opposition to the Patriot Act
The United States of America encounters more than two hundred years of revolutionary history starting from the American colonies struggling for independence against British political influence. Nowadays, many American people are involved in a struggle against execution of the Patriot Act which threatens their liberty. Soon after the Patriot Act was introduced, the patriots of Brewster held a meeting where they condemned this legislation. The grassroots opposition molded an alliance of common people who were dissatisfied with the policies of their government concerning the war on terror. The protest against the Patriot Act drew together libertarians, a Unitarian congregation and antiwar activists. As The Boston Globe informed about similar events in other cities, 32 communities including those of Massachusetts, Salem, Waltham, Watertown, Gloucester, Beverly, and Bedford are preparing to take action on the Patriot Act this spring (Cambanis, 2004). The opponents of the Act informed that a bipartisan wave in communities across the United States signalized an increasing dissatisfaction with broadening of federal powers. This process prompted some state governments and more than 200 communities in 37 states, to enact legislations against the Patriot Act (Cambanis, 2004).
Issuance and approval of the Patriot Extension Act by the Congress in May, 2011, caused a tide of a protest held at the White House. (Dolan, 2011). However, on December, 2013, the President Barak Obama signed National Defense Authorization Act (NDAA) into law (Lennard, 2013). Despite American citizens revolting against this law before it was introduced, the legislation was still signed. However, it is unlikely that the opponents of the Patriot Act and the following similar laws ceased their efforts. It is difficult to predict what will happen if the conflict between the U.S. government and the opponents escalates. The best solution of this possible conflict would be rewriting the Patriot Act to meet the need of federal government to fight terrorism while giving the safeguards to preserve constitutional freedoms and protect privacy rights of the U.S. citizens.
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The Patriot Act was enacted by the U.S. government soon after the terrorist attacks in September 2001. This Act allowed the federal government tracking the US citizens along with possible terrorists, which limited the liberties initially granted by the U.S. Constitution. Enactment of The Patriot Act faced wave of a protest by the American society at different levels ranging from civil protests to legal issues. Response of the U.S. government was surprisingly reluctant. To avoid a civil conflict the government was forced to establish a reasonable balance between federal powers for fighting terrorism and constitutional freedoms and rights of the U.S. citizens.
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