Patriot Act

Introduction

The September 11, 2001, terrorist attacks against the United States marked the beginning of the global war on terrorism, in which no one country or group of people can be identified as the enemy. To justify their actions to try to prevent future attacks, homeland security officials cited the need for accurate information regarding the activities of possible terrorist plans. However, this necessitated increased surveillance of both American citizens and foreign nationals.

The USA-PATRIOT Act was drafted in response to the September 11 attacks and was signed into law by President George W. Bush in October 2001. The Bush administration and other supporters of the Patriot Act believed that it provided much-needed tools to identify and apprehend terrorists. Groups such as the American Civil Liberties Union (ACLU), however, opposed the act's legalization of some forms of domestic spying and its provisions that reduce, or in some cases eliminate, detainees' rights. The act was reauthorized in a modified form in March 2006. In February 2010, US President Barack Obama extended the Patriot Act for one year. In 2011, Obama signed a four-year extension to the act. The act expired in June 2015, but the following day the USA Freedom Act was passed, which included several key provisions of the Patriot Act. However, one noteworthy change was the exclusion of Section 215, which had given authority to the National Security Agency to collect phone data.

The ACLU filed a lawsuit against the National Security Agency (NSA) in January 2006, seeking an end to domestic spying. A United States District Court judge ruled against the Bush administration, finding that the executive branch had overstepped its authority, and warrantless interception of emails and telephone conversations of American citizens was deemed unconstitutional.

The debate centers on the question of what degree of liberty people are willing to trade in exchange for security. The Department of Homeland Security (DHS) responded to the concerns of civil libertarians by increasing training on constitutional rights, prohibiting racial profiling, and expressing sensitivity on other cultural issues.

Understanding the Discussion

American Civil Liberties Union (ACLU): A non-profit organization dedicated to preserving the protections and guarantees outlined in the Bill of Rights, including the rights of free speech, equal protection under the law, due process, and privacy.

Department of Homeland Security (DHS): The Homeland Security Act of 2002 established the federal United States Department of Homeland Security. Its stated mission is to secure the nation against terrorist attacks, to protect against and respond to threats, and to ensure safe and secure borders.

National Security Agency (NSA): A US intelligence organization that employs cryptologists, physicists, computer specialists, mathematicians, and other experts who protect secret US government information and also work to break codes used by foreign powers.

USA-PATRIOT Act: Also known as the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, or simply the Patriot Act. The law was originally drafted to pursue terrorists but was also used to prosecute other crimes such as drug dealing and money laundering. The act expanded the government's ability to search private property and access business, library, phone, email, and other private records.

History

Terrorism has long been a problem throughout the world but became a more urgent issue in the United States after the September 2001 terrorist attacks. Congress responded to the attacks with the USA-PATRIOT Act, which was rushed through the Senate and the House and signed into law by President George W. Bush on October 26, 2001. The broad scope and full impact of the act's provisions did not come to light until after its passage.

One aspect of the act that engendered opposition was the legalization of "sneak and peek" searches, in which government agents enter citizens' homes and businesses without their knowledge. In such searches, the premises are left undisturbed and the owners are not informed for many weeks. In November 2001, New York Times columnist William Safire accused President George W. Bush of using the act to seize dictatorial power, charging that most sneak and peek searches are unconstitutional.

In defense of the act, President Bush asserted that it was written to be fully consistent with the Constitution, and pointed out that any wiretaps, searches or tracking of phone calls could be done only with the permission of a federal judge. Such tactics were considered by supporters to be a necessary evil required to keep the country safe from terrorism.

In January 2006, the ACLU filed a lawsuit against the NSA, challenging the domestic spying program. The suit charged that the First and Fourth Amendments to the Constitution (guaranteeing free speech and privacy, respectively) were violated by NSA information-gathering tactics. The ACLU suit alleged that the NSA was "data mining," or sifting through thousands of emails and telephone conversations from ordinary Americans, hoping to find information on terrorist activities. US District Court Judge Anna Diggs Taylor ruled in favor of the ACLU, reminding President Bush that "there are no hereditary kings in America, and no powers not created by the Constitution." The United States Court of Appeals for the Sixth Circuit reversed Judge Taylor's decision on July 6, 2007, holding that the plaintiffs lacked standing to sue. Thereafter, on February 19, 2008, the United States Supreme Court declined to hear the case, thus letting stand the Sixth Circuit's ruling, as well as the domestic spying program.

In addition to the broadened provisions for information gathering, the Patriot Act initially authorized government agents to arrest anyone—regardless of citizenship—suspected of terrorism, and to detain individuals indefinitely without charge and without access to an attorney. Many detainees were non-US citizens held in offshore facilities, including Guantánamo Bay, Cuba. Since the detainees were classified as "enemy combatants," they were not considered to be subject to the provisions of the Geneva Conventions, a set of rules that govern the conduct of war and the treatment of prisoners.

In June 2004, the United States Supreme Court ruled that the Bush administration may hold American or foreign citizens in military prisons indefinitely, without charges or trials, if they are classified as "enemy combatants." The court also decided, however, that terror suspects can use the American legal system to challenge their detention. Under this ruling, detainees have access to attorneys and the right to present evidence in court to challenge the basis for their detention.

This ruling concerned civil libertarians, since the rights of the accused depended upon whether they were classified as "enemy combatants" or common criminals. Revelations of secret FBI and NSA investigations into the actions of numerous peaceful citizens groups have fueled the controversy. Environmental groups, peace organizations and churches have all been investigated for suspected links to terrorism. For example, in one well-publicized case, several vegans (people who do not use or consume animal products) were arrested as terrorism suspects in 2003 by NSA officers while protesting against animal cruelty in Georgia.

Many Americans do not voice their opposition to the detention of suspected terrorists captured on foreign battlefields. Their main concern is that the definition of "enemy combatant" or "terrorist" is broad enough to encompass any citizen who exercises their right to speak out against the government or the war on terror.

Homeland Security Civil Rights Chief Daniel Sutherland responded to citizens' concerns by implementing extensive training for law enforcement officers. The Department of Homeland Security also employed a chief privacy officer, who works to ensure that the department operates within federal privacy safeguards and respects constitutional rights.

Homeland Security & Civil Liberties Today

The Patriot Act was reauthorized on March 29, 2006, making the law permanent. Sneak and peek searches, roving wiretaps, and disclosure of library records remained legal, and the government was able to obtain business records without prior proof of the owner's connection to any convicted or suspected terrorist. Michael Chertoff, Homeland Security secretary under President Bush, pointed out that these law enforcement tools were not new, as they were already being used to prosecute drug dealers and other criminals.

On June 29, 2006, the United States Supreme Court ruled in Hamdan vs. Rumsfeld that the Bush administration's plan to use military tribunals to try terrorism suspects at Guantánamo Bay was illegal. Shortly after the ruling was made public, a statement from the Pentagon acknowledged that detainees being held in Guantánamo Bay would be protected under the Geneva Conventions' ban on cruel and inhumane treatment. A United Nations (UN) investigation resulted in a recommendation to close that facility after finding that treatment of detainees there amounted to torture. Detainees were allegedly beaten, left for prolonged periods in isolation, stripped naked and threatened with dogs. Many detainees attempted suicide, some successfully. UN observers who visited Guantánamo were not allowed to question the detainees. The US State Department called the UN allegations "baseless," and many US officials defended the methods employed at the Guantánamo Bay facility.

In June 2008, the United States Supreme Court further refined the legal access to which "enemy combatants" are entitled, dealing a blow to the Bush administration in the case Boumediene vs. Bush. The court held in a 5–4 decision that detainees have a constitutional right to challenge their detention in United States courts in habeas corpus proceedings.

In January 2009, President Obama declared his intentions to close the Guantánamo Bay detention center. By 2019, some 780 detainees had been held at one time or another, and forty detainees remained at the facility, despite previous Obama administration efforts to close it. After Congress prohibited their transfer to the US mainland, the majority of the detainees were moved to Afghanistan, Saudi Arabia, Pakistan, Oman, or the United Arab Emirates. The subsequent administration of President Donald Trump deemed Guantánamo an "enduring mission" and planned to continue its operations for another quarter-century; however, both the center and its inmates were aging and needed care in order to meet Geneva Convention mandates. Guantánamo Bay remained open as of January 2024.

In May 2011, Obama signed a four-year extension of the key provisions of the Patriot Act, and many lawmakers again disputed its legality and whether or not the act violates civil liberties. The act expired in 2015 but was essentially replaced by the USA Freedom Act, which was passed in June 2015. However, the latter act had one significant difference from the former in that it did not fully renew authorization for the NSA to continue its collection of mass phone data after whistle-blower Edward Snowden revealed improper NSA surveillance of US citizens. Only the call detail records, or metadata from phone calls and text messages, could be collected under the USA Freedom Act. However, the NSA suspended the call detail records program indefinitely in 2018 because of unresolvable technical errors and inadvertent collection of unauthorized data. It thus deemed the data collected since 2015 to be unusable.

In 2019 the Trump administration sought permanent reauthorization of USA Freedom Act ahead of its expiration. In hearings, senators challenged the call detail records provision in particular, given the NSA having shuttered the program and officials were reticent to discuss whether it had ever revealed any unknown terrorist plots. Intelligence officials argued in favor of retaining the collection power in case of future necessity, while civil libertarians maintained that it should be phased out because of the privacy risk it posed. The US House extended the act through March 2020 by passing a continuing resolution; forty-nine legislators, from both parties, demanded reforms to the act, including the elimination of the call detail records provision.

In 2024, the Foreign Intelligence Surveillance Act (FISA), first passed in 1978 but later amended by the Patriot Act, returned to US headlines after Section 702 of the act was renewed by the US government. Section 702 allowed for the warrantless surveillance of foreign nationals outside of the US, and it remained controversial to certain observers and lawmakers as it allowed for the gathering of information on US citizens who are in contact with foreign nationals targeted by Section 702.

These essays and any opinions, information or representations contained therein are the creation of the particular author and do not necessarily reflect the opinion of EBSCO Information Services.

Bibliography

Books

Darmer, M. Katherine B., ed. Civil Liberties vs. National Security in a Post 9/11 World. Amherst, New York: Prometheus Books, 2004. Print.

Forest, James J. F., Russell D. Howard, and Joanne C. Moore. Homeland Security and Terrorism: Readings and Interpretations. 2nd ed. New York: McGraw, 2014. Print.

Ivie, Robert L. Democracy and America's War on Terror. Tuscaloosa: University of Alabama Press, 2005. Print.

Kamien, David. The McGraw-Hill Homeland Security Handbook. New York: McGraw, 2006. Print.

Periodicals

Birnbaum, Emily. “Dozens of Lawmakers Call for Government Surveillance Reforms.” The Hill, 20 Nov. 2019, thehill.com/policy/technology/471309-dozens-of-lawmakers-call-for-government-surveillance-reforms. Accessed 10 Dec. 2019. ‌

Birnbaum, Emily. “Senators Press NSA Official over Shuttered Phone Surveillance Program.” The Hill, 6 Nov. 2019, thehill.com/policy/technology/469268-senators-press-nsa-official-over-shuttered-phone-surveillance-program. Accessed 10 Dec. 2019. ‌

Cusick, Kelly R. "Thwarting Ideological Terrorism: Are We Brave Enough to Maintain Civil Liberties in the Face of Terrorist Induced Trauma?" Case Western Reserve Journal of International Law 35.1 (Winter 2003): 55-88. MasterFILE Premier. EBSCO. 27 June 2008 http://search.ebscohost.com/login.aspx?direct=true&db=f5h&AN=13466315&site=ehost-live.

"Do the National Security Agency Surveillance Programs Violate American Citizens' Civil Liberties?" International Debates 11.6 (2013): 21–40. Academic Search Complete. EBSCO. 2 Jan. 2015. http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=91748702.

Ernst, Julia L. "The Constitution in Times of National Crisis: Contextualizing Post-September 11 Constitutional Ramifications." North Dakota Law Review 88.1 (2012): 51–95. Academic Search Complete. EBSCO. 2 Jan. 2015. http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=86176189.

Greenspan, Edward L. "In Defence of Freedom." Maclean's 116.30 (28 July 2003): 30. MasterFILE Premier. EBSCO. 27 June 2008 http://search.ebscohost.com/login.aspx?direct=true&db=f5h&AN=10451279&site=ehost-live.

Jeffreys-Jones, Rhodri. "The FBI's Continuing Challenge: Centralized Intelligence vs. Civil Liberties." Chronicle of Higher Education 51.20 (21 Jan. 2005): B12-B13. MasterFILE Premier. EBSCO.27 June 2008 http://search.ebscohost.com/login.aspx?direct=true&db=f5h&AN=15859249&site=ehost-live.

“NSA Spying: Overview.” Points Of View: NSA Spying (2014): 1. Points of View Reference Center. Web. 28 Jan. 2016. http://search.ebscohost.com/login.aspx?direct=true&db=pwh&AN=96222806&site=pov-live

“The Pro and Cons of the NSA's Domestic Surveillance Program.” Congressional Digest 94.10 (2015): 12. Points of View Reference Center. Web. 28 Jan. 2016. http://search.ebscohost.com/login.aspx?direct=true&db=pwh&AN=111812215&site=pov-live

Savage, Charlie. "Clashing Rulings Weigh Security and Liberties." New York Times 25 June 2014: A15. Academic Search Complete. EBSCO. 2 Jan. 2015. http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=96725330.

Websites

BBC News. "U.S. Court Reviews Enemy Combatant." 5 Dec. 2008. Web. 6 Dec. 2008. http://news.bbc.co.uk/2/hi/americas/7768649.stm.

"Biden Signs Bill Reauthorizing Contentious FISA Surveillance Program." Associated Press, CBS News, 20 Apr. 2024, www.cbsnews.com/news/biden-signs-bill-reauthorizing-fisa-surveillance-program-section-702/. Accessed 20 May 2024.

Kris, David. “The NSA and the USA Freedom Act.” Lawfare, Lawfare Institute / Brookings Institution, 2 July 2018, www.lawfareblog.com/nsa-and-usa-freedom-act. Accessed 10 Dec. 2019. ‌

Savage, David. "Supreme Court Rejects Wiretap Suit." Los Angeles Times. 20 Feb. 2008. Web. 5 Dec. 2008. http://articles.latimes.com/2008/feb/20/nation/na-scotus20.

Stout, David. "Justices Rule Terror Suspects Can Appeal in Civilian Courts." New York Times. 13 June 2008. Web. 5 Dec. 2008. http://www.nytimes.com/2008/06/13/washington/12cnd-gitmo.html?em&ex.