politics, history and the war on terror
Saturday, May 22, 2004
The PATRIOT Act: Under Fire 

A critical issue hidden beneath the politics of this year’s election, is the fate of the PATRIOT Act. This law, which effected sweeping changes in fifteen statutes to close loopholes in America’s war against terrorism, also gave rise to myriad debates and conspiracy theories. It came into existence on October 26, 2001, but much of it will end after December 31, 2005, unless Congress acts to extend it. Opponents of the Act have been extraordinarily effective, generating hot opposition to the Act in many people who have not even the most fundamental comprehension of the Act, and what it does.

The first task is to understand the PATRIOT Act itself. The US PATRIOT Act (or USAPA, as it is often tabbed), is an acronym, meaning “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism”. The PATRIOT Act is based on fifteen extant statutes, most importantly the Foreign Intelligence Surveillance Act (FISA), which was passed by Congress in 1978. The PATRIOT Act, as described in the Department of Justice’s website does the following:
· Allows law enforcement investigators to use the tools that were already available to investigate organized crime and drug trafficking.
· Allows laws enforcement to use surveillance against more crimes of terror, including the development of networks and training for violence.
· Allows federal agents to follow sophisticated terrorists trained to evade detection, especially by allowing the same “roving wiretaps” long used to track organized gangs and smugglers.
· Allows law enforcement to conduct investigations without tipping off terrorists, in much the same manner as they already do against organized crime and drug cases.
· Allows federal agents to request a Court Order to obtain business records in national security terrorism cases, rather than wait for the violence to begin.
· Facilitates information sharing among government agencies, to see trends and planning before they evolve into violence.
· Updates the law to reflect new technologies and threats; most laws before the PATRIOT Act were written before the age of portable computers and roving cell phone towers.
· Allows victims of computer hacking to request law enforcement assistance.
· Increases the penalties for terrorist acts.
· Acts against the creation or support of terrorist networks

That’s all well and good, some say, but what about the weakening of our civil liberties? Certainly, we’ve heard that a lot from critics, along with a great many charges and claims. Jennifer Van Bergen called the PATRIOT Act a “Crackdown on Civil Rights; War on Freedom” with a laundry list of undocumented claims against the government and the Bush Administration. Van Bergen warns ominously of “secret searches without probable cause”, and claims the government will “completely avoid Fourth Amendment” protections. A newspaper called the Guardian claims that the PATRIOT Act threatens “to imprison people without due process, and to punish dissent.” The paper quotes an ACLU lawyer named Jameel Jaffer, who said the Act is “sinister”, and is “interfering with our constitutional rights”. Another lawyer quoted in the same article, Jeralyn Merritt, says the Act only passed because “Congress was hoodwinked”. But the articles do not defend these claims. In fact, they don’t even bother to cite the sections which are supposed to enable these crimes against Americans. The Guardian does offer a book they’ve written on the subject, available for sale by pre-paid order. So, we have to look for ourselves to see what is really going on.

Well, the Act is 342 pages long, so it does take a while to read. But Congress seemed pretty comfortable with it; the Act passed 357-66 in the House, and 98-1 in the Senate. Quotes on October 25 and 26 reflect the mood of the time:

Regarding the need to expand FISA to allow roving wiretaps - “the FBI could get a wiretap to investigate the mafia, but they could not get one to investigate terrorists. To put it bluntly, that was crazy! What’s good for the mob should be good for terrorists” (Senator Joe Biden, D-DE)(Congressional Record)

Regarding the need for expanded cooperation between intelligence and law enforcement – “We simply cannot prevail in the battle against terrorism if the right hand of our government has no idea what the left hand is doing” (Senator John Edwards, D-NC)(Press Release)

Regarding the need to take legal action against the financial support for terrorist groups and networks – “if one is going to cope with an al Qaeda, with a terrorist entity such as Osama bin Laden, who moves his money into this legitimate marketplace, law enforcement has to have the ability to hold people accountable” (Senator John Kerry, D-Mass)(Congressional Record)

What’s more, some who have seemed to question the Act have defended it even in recent days:

“A heckler asked Kerry last week to ask why he supported the Iraq War and the PATRIOT Act. Kerry shot back, “I’ll never run away from those votes” (Winston-Salem Journal, February 4, 2004)

The nuts and bolts of the Act, when you get to the details, is really a lot like reading a car manual – it just tells you how the thing works, and what it’s supposed to do.

Many of the PATRIOT Act’s functions do not change what the Government may do, but allow it greater flexibility. A warrant may be executed in multiple states (section 219), a search warrant may be nationwide ((preventing a suspect from fleeing to avoid detection, while remaining in the US). Intelligence agencies may share certain information with law enforcement (subject to court review). In the case of the information from a criminal case, section 203 allows the courts to share relevant information with the Government, when “matters involve foreign intelligence or counterintelligence per 50 USC S 401a or foreign intelligence information”, which is long overdue.

The PATRIOT Act allows the government to review online activities on public websites, such as Google. While some are uncomfortable with that notion, there are many reasons why this is reasonable. First, in the real world, policemen patrol public places regularly as part of their jobs. It only makes sense that public sites should be reviewed. Second, the information gained in such review is not allowed in court for trials, but can be used to support the argument for obtaining a court order for a search warrant. One benefit of these tactics is the arrest of hundreds of sexual predators who seek out their victims online. The PATRIOT Act still requires subpoenas to obtain information from ISPs, but an ISP may volunteer information if it desires (section 212). This is essentially the same thing, as an ISP working to restrict spam and obscene material.

The PATRIOT Act allows wiretaps to move from phone to phone (Section 206), or computer to computer. On the face, this may sound reckless, but it actually is just taking away a common tactic of offenders. In the first place, a Court Order is still required, but instead of locking the order to one location in the hopes that the offender uses it (and taping all other activities on the phone, even by innocent parties), this allows the authorities to monitor the suspect, and go where he goes. It merely prevents the suspect from thwarting surveillance by simply changing phones or computers.

Opponents of the PATRIOT Act worry about legitimate protest activity being suppressed, but the provisions only apply when violence is involved (18 USC 2331), when the illegal actions transcend international borders (18 USC 2331 and 2332b) and target the federal government (18 USC 2332b (g)(5)(B)). The law, in other words, attacks the methodology of foreign groups acting in conspiracy against the United States, not against US citizens in non-violent protest. USAPA section 214 specifically prohibits the Government from conducting surveillance solely on the basis of 1st Amendment activities.

The PATRIOT Act also adds the DNA of convicted violent offenders to a database, allowing the Government to show linkage of violent behavior to groups espousing violence (sec 503).

Computers are effectively the 21st-century equivalent to the 20th-century telephone, but the law is just now catching up to that reality. Investigations into terrorist activity not only show the extensive use of computers for planning, but also chat rooms and online real-time conferencing. Since a Court Order is required to monitor “content” online, just as it is to monitor telephone conversations, the basic rights of the accused and suspects remain intact and protected. The process is simply catching up (FISA 50 USC 1822).

It is also worth noting, that the PATRIOT Act also includes liability against government agents and offices (USAPA section 223) for improper disclosure of information. It is also worth noting, that not even one person has even filed suit under this provision.

It’s also important to realize that the PATRIOT Act also requires the Office of the Inspector General to report on possible civil rights or civil liberties violations to both the Attorney General and to Congress, every six months (Section 1001). The results of the last such review may be seen at the DoJ website. There are protections for citizens, not only through the courts, but written in the law itself.

So, we have an Act of Congress which has strengthened necessary defenses, expanded the reach of our intelligence agencies and the law, has passed at least its initial reviews, aided in the capture of top Al Qaeda operatives, and generally been not a wolf at the door but a police dog, fearsome but not dangerous to the public.

In conclusion, it’s also worth recalling how the need for such massive correction became necessary. While the PATRIOT Act basically revised the provisions of FISA, FISA was itself a correction from an earlier mistake. In 1974, the Central Intelligence Agency came under heavy fire for allegedly spying on Vietnam War protestors and organizations (Seymour Hersh, The New York Times,“ Huge CIA Operation reported in US Against Anti-War Forces”, December 22, 1974). The US Senate launched a widespread investigation of the Intelligence Community as a whole, in 1975, as the Senate Select Committee to Study Government Operations With Respect to Intelligence Activities (the Church Committee). The House of Representatives House Select Intelligence Committee (the Nedzi Committee, replaced by the Pike Committee) in February 1975. In the end, the Church Committee found out about, and severely punished, FBI domestic intelligence operations (CONINTELPRO), and the Pike Committee launched a siege against the CIA, by subpoenaing such documents as budget expenditures, chain-of-command authorities, specific analyst estimates and predictions, matched against crises the CIA might have been able to warn against, all unprecedented for Congressional review, and demanded written records of covert operations. The Pike Committee was so partisan, that instead of delivering its final report directly to President Ford, a staff member allowed journalist Daniel Schorr to leak the report first to The Village Voice, which printed it in its entirety. CIA and FBI operations were effectively castrated.

In 1978, to begin correcting some of those errors, Congress passed and President Carter signed the Foreign Intelligence Surveillance Act (FISA). This act did most of what the PATRIOT Act now does, only to a smaller scale. Hardly surprising, since telephones were pretty much all land-lines in those days, and computers meant heavy mainframe units. But the act also failed to overcome some significant barriers to effective intelligence operations. Suspicion of the FBI and CIA still prevented anything like cooperation. Ironically, in law enforcement, the Government had come to understand the need for coordinated action. In 1970, Congress passed the Organized Crime Control Act (Title IX, Pub. L, No, 91-452), also known as the RICO Act (Racketeer Influenced and Corrupt Organization). RICO allowed law enforcement agencies to share information, increased interstate cooperation, and expanded law enforcement authority. As a result, America was increasingly able to plan and act effectively against men who wanted to kill for greed, but not those who wanted to kill for a political cause.

On February 26, 1993, Osama bin Laden struck the World Trade Center, killing six people, seven if you count the unborn child of Monica Smith, but more than a thousand people required medical treatment. This should have been the wake-up call, but it proved to be otherwise. A 1995 memo from Deputy Attorney General Jamie Gorelick regarding the case (United States v. Rahman, United States v. Yousef, et al), specifically ordering that the Assistant United States Attorney on the case, handling all pertinent information, be “walled off” from any intelligence agents or offices, in order to prevent coordinating a criminal investigation with foreign intelligence, even in the specific case of a known terrorist attack. It is reasonable to believe her actions represented the consensus of the time, as her actions received no criticism in 1995, or from any of her superiors. In the light of the 9/11 attacks, of course, they are seen a different way. The need clearly exists, to quickly obtain valid and effective information on the enemies of the United States, in order to save lives and prevent destruction like the Al Qaeda attacks. The PATRIOT Act is one of those tools.

Posted by DJ Drummond @ 6:05 PM

|