The Unconventional Path to the Patriot Act: The Badly Needed Bill That Noone Read

No Ordinary Bill

At 8:46 am the north tower was hit. Seventeen minutes later, United Airlines flight 175 collided into the south tower. By the time the towers’ fall was seen by billions of people worldwide, the fate of the Patriot Act was sealed. Though President Bush would not sign the complete bill until October 26, 2001, there was a minimal opposition. The tragedy of September 11th served as the only needed evidence that by any means necessary, the life of America and her citizens was in need of protection. No polls needed to be taken, for a moment in time, all Americans were joined in one thought and one concern; life could never be taken for granted and everyone wanted to regain the security and safety they felt before that fateful day.

There is no conventional way to discuss the sequence of events that led to the introduction of the USA-Patriot Act to Congress. Unlike premeditated Acts of the past such as the Fair Housing Act of 1968 or the Voting Right Act of 1965 before September 11th, there were no grassroots movements or coalition of interests that placed counter-intelligence on the forefront of American priorities. Prior to September 11th, the broad and extensive power given to the government through the USA Patriot Act would have surely been met with opposition from individuals across the full political spectrum. However, the stars aligned in such a way that in the wake of the deadliest act of terrorism to ever take place on American soil, Congress passed the most dramatic piece of “war legislation” in this country’s history.

The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA-PATRIOT ACT) passed through Congress with a vote of 357 to 66 in the House of Representatives and a vote of 98 to 1 in the Senate. Signed a mere six weeks after the September 11th attacks, the act broadly expanded the country’s law enforcement agencies’ power to impede terrorism. The power of the PATRIOT Act comes not in new tactics in fighting the “war on terror,” but in its drastic refinement of previous counter-intelligence laws. The PATRIOT act eliminated barriers in information collection that were prevalent by previous counter-intelligence acts such as the Racketeer Influenced and Corrupt Organizations Act (RICO) of 1970, the Foreign Intelligence Surveillance Act of 1978 (FISA), the USA Act of 2001, and Financial Anti-Terrorism Act of 2001, and the direct predecessor of the USA Patriot Act, the Antiterrorism and Effective Death Penalty Act of 1996 (AEPA). Each of these acts, in there own respect played a vital role at the time of their enactment in fighting the wars of their era. However, as the case was made after September 11th, these laws were not apt to deal with the ever-advancing technology that allowed terrorists to bring harm to Americans with greater organization and on a larger scale than ever before.


The Ancestors of USA-Patriot Act:
RICO, FISA, AEPA, FATA, and USA

RICO:

Robert Blakey, a former aid to Robert Kennedy wrote the RICO act as a “befitting tribute to Kennedy’s abhorrence of the Italian Mafia.” The goal of RICO was to eliminate the ill effects of organized crime on the nation’s economy by allowing persons financially injured by a pattern of criminal activity to seek redress through the state or federal courts, up to three times the amount loss by an individual. Key impacts of Rico were to define racketeering and criminal enterprises as well as including mail and wire fraud inclusively in those definitions. Significant to the future enactment of the PATRIOT Act, with the enactment of Rico, government authorities now had legal basis for wire and mail surveillance of individuals convicted or under suspicion of racketeering. A racketeering pattern was broadly considered as two or more violations of state or federal laws regarding murder, kidnapping, hijacking, extortion, fraud, and several other crimes.ii Moreover, previously convicted racketeers can now serve more jail time if they communicated or socialized with other previously convicted and connected members to criminal enterprises such as the mafia. Under this provision, the government is allowed to seize and lien all bank accounts of all individuals and or company assets before any trial could be conducted. This last aspect of the RICO Act highlights one of the most controversial aspects of the USA-Patriot act that restrict due process for individuals involved in organized crime, racketeering, and now terrorism.

FISA:

Since 1928, the autonomy given to the United States government in establishing warrantless wiretaps and surveillance through Olmstead v. United States had been persistently challenged and overturned maintaining that such practices were in direct violation of one’s Fourth Amendment right. Reinforced in Katz v. United States and the case of United States v. United States District Court (also known as the Keith Case), the court supported that the government’s warrantless electronic surveillance of a “target” violated his fourth amendment rights irregardless of whether the surveillance was being conducted as a result of national security concerns. Though the court’s reasoning behind rejecting warrantless claims focused on protecting citizens from domestic surveillance, the court implored Congress to consider the issue of foreign intelligence surveillance for future legislation.
Congress responded to this call to action with the enactment of the Foreign Intelligence Surveillance Act of 1978, which produced legal guidelines for federal investigations of foreign intelligence targets. Of significance after the September 11th attacks, FISA also incorporated definitions of who could be investigated. Under the original law,

“ Only foreign powers or agents of foreign powers were to be subject to FISA investigations. Thus, targets [under this law] are primarily those foreign persons who are engaged in espionage or international terrorism.”

This was expanded in 2004 with the Intelligence Reform and Terrorism Prevention Act of 2004 that permitted targeting of “lone wolf” terrorists who need not to belong to and be members of a terrorists group or an agent of any other foreign power.


Antiterrorism and Effective Death Penalty Act of 1996:

Enacted into law on April 26, 1994, The Antiterrorism and Effective Death Penalty Act of 1996 had been a decade in the making. Motivated by the bombings in Oklahoma City in 1995 and at the World Trade Center in 1993, AEDPA was a response to the victims’ families for redress for the loss of their loved one’s lives. The law was intended to “curtail the right of state prison inmates, under federal habeas corpus, to challenge their state convictions and sentences.” One of the most controversial elements of AEDPA that was later adapted into the USA-PATRIOT Act was a section that “bars federal courts from granting any habeas corpus writ on a issue that was raised in a state court.” AEDPA was the first step towards granting the government and law enforcement agencies close to complete legal autonomy in offensively combating what later defined as “domestic terrorism.”


Financial Anti-Terrorism Act:

Passed on October 17, 2001, the Financial Anti-Terrorism Act was one of the immediate legislative responses to the September 11th attacks that “increase the federal government’s powers to investigate and prosecute the financial supporters of terrorism.” In essence, this act mandated:
• Criminals who were engaged in illegal money practices that directly or indirectly benefited terrorist enterprises to be punished.
• Gives procedural guidelines for Federal subpoenas for records of funds in correspondent bank accounts.
• Gives federal jurisdiction over foreign money launderers and over money laundered through a foreign bank.
• All financial institutions to be forced to form an anti-money laundering program.

This act and all components were “folded” into the USA PATRIOT ACT shortly after it’s signing on October 22, 2001.



USA Act:

The earliest of counter-intelligence measures after the September 11th attacks, the USA Act was passed on October 12, 2001 and subsequently folded into the USA-PATRIOT act as well. The primary difference between the USA act and FISA was the distinction that a “terrorist” does not have to be backed by a “foreign power” (often assumed to be a foreign government) as defined under FISA. Under this legislation, “a terrorist who was not an agent of a foreign power could be the target of a federal investigation of foreign intelligence.” This small distinction was a monumental declaration that laid the foundation of controversial domestic surveillance allowances provided under the USA-PATRIOT ACT.


The USA-PATRIOT Act

No Showdown at O-K coral…

The original bill of the USA Patriot Act was introduced into the House of Representatives by Congressman James Sensenbrenner (see Fun Fact #1) on October 23rd, 2001 and was passed the following day on October 24th, 2001 in the House of Representatives. The authors of the bill were Assistant Attorney General Viet Dinh and the current Secretary of Homeland Security Michael Chertoff (see Fun Fact #2). It passed expeditiously through the Senate and was approved on October 25, 2001. Fueled on the fear of another terrorist attack and the need for a sense of security throughout the country, the bill received little dissent from in the House of Representatives and received one “nay” vote in the Senate by Senator Russ. One of only three Republicans in the House to vote against the bill, Representative Ron Paul Texas commented on the speed in which the bill went through Congress. He stated,

“It's my understanding the bill wasn't [even] printed before the vote-- at least I couldn't get it. They played all kinds of games, kept the House in session all night, and it was a very complicated bill. Maybe a handful of staffers actually read it, but the bill definitely was not available to members before the vote."



The Power of the USA-PATRIOT Act – Defining “Domestic Terrorism”

The true scope of the power of the Patriot Act is in the immigration, banking, FISA, and money laundering laws that it amended. These modifications liberated law enforcement officials from various barriers in tracking terrorist targets as well as redefined essential concepts of the notion of “terrorism.” Section 802 of the Act created the new crime category of “domestic terrorism” which included activities that :

a.) Involve acts dangerous to human life that are a violation of the criminal laws of the U.S or of any state
b.) Appear to be intended to
i. To intimidate or coerce a civilian population
ii. To influence the policy of a government by intimidation or coercion
iii. To affect the conduct of a government by mass destruction, assassination, or kidnapping
c.) Occur primarily within the jurisdiction of the U.S

Much of the controversy over the Patriot Act stems from Provision 213 of that act that allow for “Sneak-and-Peak” searches. These searches allows,

“Surreptitious search warrants and seizure upon showing a reasonable necessity [not a preponderance of evidence] and eliminates the requirement of Rule 41 of the Federal Rules of Criminal Procedure that immediate notification of seized items be provided.”

Essentially, “Sneak and Peak” searches can be done without or with delayed notification of the owner of the property which previously was seen as a violation of one’s Fourth Amendment rights.

Another controversial element of the PATRIOT act is presented in Section 215 that recognized the implied right of federal investigators to access email, library and bookstore records through “National Security Letters”. This part of the act, broadly affords FBI agents the authority to obtain a warrant “in camera” (in secret) from the United States FISA court of anyone “connected” to an investigation of international terrorism or spying [as vaguely defined through the RICO ACT]. The actual reading of the bill gives federal investigators unrivaled access to “business records and other tangible items in general” which civil libertarians argue is “unconstitutionally vague” and violates “patrons human rights.”






Why the USA-Patriot Act Trumped the USA Act
(And why the previous acts mattered)

The primary differences between the USA Act and the USA PATRIOT Act are :

• The Inclusion of the Financial Anti-Terrorism Act, which expands money-laundering abatement to international terrorism.
• Immunity against prosecution for the providers of wiretaps in accordance with the Foreign Intelligence Surveillance Act of 1978.
• Request for a report on integrating automated fingerprint identification for ports of entry into the United States.
• Start of a foreign student-monitoring program.
• Request for machine-readable passports.
• Prevention of consulate shopping.*
• Expansion of the Biological Weapons Statue [which now prohibits the possession of a biological agent with “no reasonably justifiable purpose.”]
• Clearer definition of “Electronic Surveillance”
• Miscellaneous benefits for victims of the September 11th attack and extra penalties for those who illegally file for such benefits.

* “Consulate Shopping” is the practice of applying for visas at different consulate posts in the hope of finding one that will be less stringent or more sympathetic to the applicant in approving their visa.”

After the Sunset: Revisiting and Reauthorizing the Patriot Act

Written into the original bill was a sunset clause that stated that in four years, Congress would revisit the bill and proactively review elements of the bill that may need to be amended. The main challenges that in the reauthorization of the bill were to address the perceived civil liberty intrusions in the aforementioned sections of the legislation. Full reauthorization of the bill was met with bipartisan resistance led by Sen. Larry Craig (R-ID), Sen. Russ Feingold (D-WI), Sen. Dick Durbin (D-IL), Sen. Lisa Murkowski (R-AL), and Sen. John Sununu (R-NH) when debate on the bill lasted for close to three months failing to meet the original deadline for renewal on December 31, 2005. The deadline for reauthorization was extended twice before it was finally approved on March 2, 2006 in the House, and March 7, 2006 in the Senate. The final vote made all made two of its provisions permanent. The authority to conduct “roving surveillance under FISA and the authority to request production of business records under FISA (sections 206 and 215) will both expire in 4 years Most significantly, the reauthorization contained 27 civil liberties protections which made many previously allowed warrantless surveillance practices illegal. The protections also instituted a need for authorization from one of three officials, a FBI official, the Deputy Director, or the Official in charge of Intelligence for most warrantless surveillance and wiretaps.

Before the reauthorization, several bills were introduced into Congress to counter many of the civil liberty challenges brought through numerous court cases. The most noted of these counter bills were “Protecting the Rights of Individuals Act,” “Benjamin Franklin True Patriot Act,” and the “Security and Freedom Ensured Act” (SAFE). The courts consistently addressed constitutional challenges to the Patriot Act ruling several sections unconstitutional. Section 805, which classify “expert advice or assistance” as material support to terrorism was ruled “unconstitutionally vague.” Section 505, which allowed the government to issue “National Security Letters” to obtain sensitive customer records from Internet service providers and other businesses without judicial oversight were also ruled unconstitutional and in violation of the First and Fourth Amendment.

Despite the successful reauthorization of the USA-PATRIOT act, legislative and judicial challenges to the legitimacy and constitutionality of the bill are certain to continue throughout the future. As clearer understanding of the effectiveness of the law becomes available, whether the public will value the benefits higher than the cost remains to be seen. Regardless, the story of how the USA PATRIOT act came to be is interesting commentary of the true power of the government to respond to the needs of their constituency in the darkest of times.