Patriot Act – decomcracy in action?

The Patriot Act

The USA Patriot Act, or Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (yes, that’s really the title of the Act), was passed in late 2001. The 342 page Act introduced a plethora of legislative changes which significantly increased the surveillance and investigative powers of U.S. law enforcement agencies.

One of the most astounding facets of this Acts passage was the lack of debate surrounding its introduction – many persons in the legislative branch never even had the opportunity to read the final bill before voting. Passed on October 26, 2001, just six weeks after the September 11, 2001 terrorist attacks against the World Trade Towers, the Act was rushed through the typically structured legal processes, on the supposition that the United States was sitting in a dangerous position and left vulnerable to widespread attack by terrorists. At the time of Patriot Act passage, people were anxious and with the understanding that fear is the greatest motivator of all, that terror was primed by persons uniquely interested in seeing the Act passed. Daily speeches about the evils that could be perpetrated against the United States, how vulnerable we are, and the threat of a nuclear attack, were propagated with little explanation of how eliminating basic Fourth Amendment rights would truly offer protection against such terrorist attacks. John Podesta, White House Chief of Staff from 1998 through 2001 said:

The events of September 11 convinced … overwhelming majorities in Congress that law enforcement and national security officials need new legal tools to fight terrorism. But we should not forget what gave rise to the original opposition – many aspects of the bill increase the opportunity for law enforcement and the intelligence community to return to an era where they monitored and sometimes harassed individuals who were merely exercising their First Amendment rights. Nothing that occurred on September 11 mandates that we return to such an era.

In addition to priming the American public with fear in preparation for the passing of the Patriot Act, it is undeniable that Congress themselves were pressured with undue fear. After the September 11th attacks, the bill was passed to Congress. Attorney General John Ashcroft, using typical “business like” pressure, gave Congress one week to pass the bill. When congress wavered, Ashcroft warned them that further terrorist attacks were imminent and the weight of American deaths would weigh on Congress’s heads if the bill was not passed immediately. The bill flew through the House and Senate and was signed into law in only six weeks. Surely such a hurried bill, with little time to prepare or debate, would only introduce minor changes to our existing laws?

The Patriot Act modified and amended the following:

• Wiretap Statute
• Electronic Communications Privacy Act
• Computer Fraud and Abuse Act
• Foreign Intelligence Surveillance Act (mentioned above)
• Family Education Rights and Privacy Act
• Pen Register, Trap, and Trace Statute
• Money Laundering Act
• Bank Secrecy Act
• Right to Financial Privacy Act
• And many more…

These amendments, in all cases, loosened the reigns on surveillance and intelligence gathering personnel. The new amendments walk dangerously close to violating fourth amendment rights and many believe they cross the line entirely. Following are examples of how U.S. citizen’s rights to privacy and autonomy changed:

• The Patriot Act makes it much easier for law enforcement to use pen registers and “trap and trace” devices. Pen registers are devices used to collect all outgoing calls placed on a phone while “trap and trace” devices capture all incoming calls. The amendments also makes these devices applicable to computer communications which opens the door to a plethora of Internet tracking including what web sites were visited, email communications, newsfeeds that were read, and logs of online chats. With the advent of the Internet and its widespread use in the daily lives of Americans, the doors are basically wide open to allow spying of all aspects of American lives. How does the Act make the use of these devices easier? An attorney simply certifies that the information to be gathered is likely to be relevant and the judge is required to approve the devices use. Lack of judicial discretion, the oversight of judicial personnel who review and determine whether an act is legal or not, removes one of the checks and balances that are required to prohibit abuse of these powers.
• The Patriot Act makes it much easier to obtain personal financial information and student information. No elaborate courts or formal approvals are needed – simply certify that the information is needed for a criminal investigation and a court order is issued automatically – probable cause is no longer even so much as a factor to be considered.
• Search and seizure rules were loosened by the Patriot Act. The controversial “sneak and peek”, “secret search”, and “covert entry” provisions mean law enforcement agencies can secretly search your home, even on a routine basis, without ever letting the owner know that their home was entered. Prior to the Patriot Act, it was required that the owners be notified if their home was searched or entered for any reason whatsoever. To put it bluntly, your home is no longer a private, protected abode.
• The innocuous sounding “interception of computer trespasser provision” sounds harmless at first, but examine the loophole that was opened with its introduction and the provision that is now allowed is mind-boggling. Under the Patriot Act, any person who suffers a computer intrusion may request the assistance of law enforcement and grant them the right to monitor all traffic to and from the compromised system. The end result – any Internet Service Provider or “central routing hub” may request monitoring of the traffic to and from their systems. For an ISP, that means all Internet traffic coming from and going to their customers. With hacks and virus attempts occurring constantly on the Internet (it takes an average of 10 minutes for an unprotected machine on the Internet to become infected), these requests can come at any moment and amount to the ISP holding open the door for law enforcement agencies to monitor all Internet communications (e.g. by using the infamous FBI’s Carnivore tracking and data mining tool). The enormous possibilities for corruption and abuse have never been greater.
• The Patriot Act provides that aliens may be detained indefinitely, as long as it takes, pending their removal from the United States. The Defense Department argues on their web site that this amounts to “denying bail to a criminal defendant”. Meanwhile, detainees at the infamous Guatonamo Bay facility, sat for years waiting release, a practice that was subsequently deemed unconstitutional by the above mentioned James Robertson. Still, the Act stands and the practice of detaining a citizen indefinitely continues.
• Roving wiretaps are now allowed and specified in the Act using very generic orders. Prior to the Patriot Act, specific phone lines had to be specified. The Patriot Act opens the door to any communication medium which means private communications of any American citizen could be intercepted incidentally. Another interesting facet of this provision is its apparent direct violation of the 14th Amendment which requires that any search warrant “particularly describe the place to be searched”.
• The new provision for the “access of any tangible things” basically allows authorities unchecked access to anything they deem relevant. This dangerous provision broadens the scope of items without a showing of probable cause. In a government where rights are specifically defined and protected, such a provision is very frightening indeed.
• Do not presume that any of the above mentioned changes apply solely to foreign terrorists. The Patriot Act also redefined the term “domestic terrorism” with such a broad definition that peaceful organizations such as Greenpeace and Amnesty International could fall within their definition. This opens the doors for harassment, spying, and more if these organizations dissent against sought after government policy. It also allows the inclusion of any American citizen.

Rights that are threatened

The American Civil Liberties Union (ACLU) has pointed out that the following basic rights are threatened by the Patriot Act:

First Amendment – Freedom of religion, speech, assembly, and the press.
Fourth Amendment – Freedom from unreasonable searches and seizures.
Fifth Amendment – No person to be deprived of life, liberty or property without due process of law.
Sixth Amendment – Right to a speedy public trial by an impartial jury, right to be informed of the facts of the accusation, right to confront witnesses and have the assistance of counsel.
Eighth Amendment – No excessive bail or cruel and unusual punishment shall be imposed.
Fourteenth Amendment – All persons (citizens and noncitizens) within the US are entitled to due process and the equal protection of the laws.

And the ACLU points out the follow examples of violations:

• 8,000 Arab and South Asian immigrants have been interrogated because of their religion or ethnic background, not because of actual wrongdoing.
• Thousands of men, mostly of Arab and South Asian origin, have been held in secretive federal custody for weeks and months, sometimes without any charges filed against them. The government has refused to publish their names and whereabouts, even when ordered to do so by the courts.
• The press and the public have been barred from immigration court hearings of those detained after September 11th and the courts are ordered to keep secret even that the hearings are taking place.
• The government is allowed to monitor communications between federal detainees and their lawyers, destroying the attorney client privilege and threatening the right to counsel.
• New Attorney General Guidelines allow FBI spying on religious and political organizations and individuals without having evidence of wrongdoing.
• President Bush has ordered military commissions to be set up to try suspected terrorists who are not citizens. They can convict based on hearsay and secret evidence by only two-thirds vote.
• American citizens suspected of terrorism are being held indefinitely in military custody without being charged and without access to lawyers.

Department of Defense Reacts

The Department of Defense has posted a FAQ on the Patriot Act in which it argues against the resistance it has experienced from the ACLU and others angry with the passage of the Patriot Act. The FAQ itself is interesting in many respects. Firstly, it is amusing in that it makes very weak arguments to support its directives. They pointedly state that the Act specifically protects certain liberties while the verbiage of the hastily enacted act clearly leave gaping holes in its interpretation – one of the biggest complaints detractors have with the Act.

Additionally, the examples stated of how civil liberties are being protected are irrelevant – while they claim to be voluntarily conducting their own audits and guarantees of liberty protecting constraints, the fact remains that the Act itself, as with any governing law, should be the determining factor of what is and is not the legal boundary of invasive exemptions to civilians civil rights.

Secondly, its numerous, vague examples of how terrorism has been combated using Patriot Act provisions is the exact method that most have pointed out as the very method used to gain passage of the Act in the first place – purposely inciting fear in the public in an effort to pressure acceptance of the civil rights losses they have suffered.

What should be done

Plain and simple – the Patriot Act needs to be carefully rewritten and debated both in normal government proceedings and in the public forums, before it is passed. The American public should clearly understand what liberties are being relinquished before they are signed into law. And foremost, fear should not be propagated as a means to ensure passage.

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