A Brief History Of The USA PATRIOT Act
The USA PATRIOT Act (an acronym for “Uniting & Strengthening America By Providing Appropriate Tools Required to Intercept & Obstruct Terrorism”) (“UPA”) became law in October 2001. The Act has diminished the civil liberties and human rights of both U.S. citizens and non-citizens. The 300-page Act was quickly passed, virtually without debate and with many legislators voting without reading the Act first because the Bush administration was able to take advantage of fear and prejudice following the events of September 11, 2001. The U.S. Department of Justice had earlier sought to give the executive branch many of the same expansive authorities prior to 9/11, but had been unsuccessful until then.
The Act took away power from citizens, the legislature, and the courts, delivering it to the executive branch of government. The Act chills and criminalizes people’s legitimate expressions of their political views, and blurs the line between speech and criminal activity. The government’s new Orwellian surveillance powers can be used to investigate all crimes, not only terrorist or violent crimes.
The Act also creates a new category of crime, “domestic terrorism,” defined as criminal acts within the U.S. that are “dangerous to human life” that “appear to be intended to influence the policy of a government by intimidation or coercion.” The Act includes the possibility of a life sentence for domestic terrorism. Were the 1999 Seattle WTO protests intimidating enough to be ‘domestic terrorism” under this definition? Must the acts that are “dangerous to human life” be intentional or could it include acts that cause inadvertent harm – for example, a demonstration that blocks the path of an ambulance. These questions have not been litigated and therefore have not yet been answered.
The UPA of course also established the “Department of Homeland Security” and allowed the mass detentions of hundreds of people at Guantanamo on the slimmest threads of suspicion of “terrorism,” including many who were detained based solely on the accusations of Iraqis and others who were financially rewarded for their accusations.
The UPA was passed despite lack of any evidence its far-reaching provisions would have prevented the 9/11 events. William Webster, director of both FBI and CIA under Presidents Reagan and Bush I, stated in Nov. 2001: “From 1981 to 2000, the FBI prevented more than 130 terrorist attacks. We used good investigative techniques and lawful techniques. We did it without all the suggestions that we are going to jump all over . . . people’s private lives. . . . I don’t think we need to go in that direction.”
During the GW Bush administration, Eric Holder (now Obama’s Attorney General) stated: “I never thought that I would see that a president would act in direct defiance of federal law by authorizing warrantless NSA (National Security Agency) surveillance of American citizens.” In 2003, Obama stated that if he were in Congress he “would vote to repeal the USA Patriot Act” and “would consider replacing that shoddy and dangerous law.” He specifically referred to wiretapping without individual-specific warrants. As one of his first official acts as President, Obama announced that the new administration would have an “unprecedented level of openness” regarding national security surveillance. The new administration did issue liberalized guidelines for the Freedom of Information Act (FOIA).
But the Obama administration has largely continued unnecessarily intrusive government spying and surveillance. AG Holder has refused to revise any of the Attorney General Guidelines for Domestic FBI Operations, instituted by AG Mukasey during the last month of the Bush administration, authorizing so-called “assessments” – warrantless domestic surveillance without probable cause of criminal activity. Prior to the UPA, the courts interpreted the Fourth Amendment of the U.S. Constitution to prohibit government searches without probable cause that a crime has occurred, or is about to occur.
Holder now justifies his resistance to change by stating that “the guidelines are necessary because the FBI is changing its mission . . . from a pure investigative agency to one that deals with national security” and because he wants to “see how these guidelines work in operation.” But the FBI has a long history of, “in operation,” abusing its national security surveillance powers, with perhaps the most glaring examples of abuse occurring during the Bush administration’s “War on Terror.”
The Guidelines Attorney General Holder Will Not Change
The Mukasey guidelines allow the FBI to target people of “special interest” through secret investigations called “assessments,” using physical surveillance tactics such as retrieving data from commercial databases, using undercover FBI informants, and intercepting communications.
The guidelines allow the FBI to base its “special interest” in a person or community on person’s race, religion, or national origin. When the guidelines were issued, the FBI created the Domestic Investigations and Operations Guide (DIOG), which authorizes agents to “identify locations of concentrated ethnic communities . . . if these locations will reasonably . . . assist domain awareness for the purpose of performing intelligence analysis . . . . Similarly, the locations of ethnically-oriented businesses and other facilities may be collected.” Part of the community demographics the FBI may record and “map” are “specific and relevant” ethnic behavior described as “focused behavioral characteristics reasonably believed to be associated with a particular criminal or terrorist element of an ethnic community,” as well as “behavioral and cultural information about ethnic or racial communities.”
In 2007, Washington Post columnist Jeff Stein reported that the government had been tracking San Francisco falafel sales (viewed as “specific and relevant” ethnic behavior) in order to try and find Iranian terrorists. This racial profiling not only violates the civil rights of people within those profiles, but has not been demonstrated to be effective. In 2002 a group of Senior U.S. intelligence specialists sent a memo to law enforcement warning that overreliance on profiles might be one of the reasons our government failed to prevent the 9/11 attacks. They noted: “Any profile based on personal characteristics . . . draws an investigator’s attention toward too many innocent people, and away from too many dangerous ones.” One senior official stated: “The next face . . . is not going to be an Arab face, but possibly Indonesian, Filipino, a Malaysian face, or even African. [The terrorists] understand the security profile we’re operating on.”
2010 UPA Reauthorization
In February 2010, at the urging of President Obama, Congress extended three of the surveillance provisions of what Obama had seven years earlier called the “shoddy and dangerous” UPA. One was the provision that allows roving wiretaps (wiretaps without individual-specific warrants) – the very provision Obama had objected to in 2003 as an Illinois senator. The other two provisions extended in 2009 include the “lone wolf” provision, and the “library records” provision (explained below).
These provisions were originally set to “sunset,” or expire on December 31, 2009, providing the 111th Congress with the opportunity to re-evaluate and review the need and efficacy of these provisions, and whether they were being abused. Congress extended the expiration date to February 2010 to ensure these issues were considered rather than rubber-stamping a reauthorization. There were bills pending in both the House and the Senate to amend these three expiring provisions, along with other sections of the Act seen by some in Congress as needless infringements on civil liberties.
However, under strong urging from the Obama administration, the reform bills died in committee, and the provisions set to expire were reauthorized by Senate voice-vote without any re-evaluation or revisions on February 25, 2010.
The provisions of the Act that were re-authorized were:
- The “roving wiretap” provision (Section 206): Normally, if a government agency wants to wiretap a person or group for a criminal investigation, the agency must obtain a warrant that specifically names the target, and ensures that the only information the agency receives are communications from the named target. These protections do not apply under Section 206 of the UPA, which allows the FBI to wiretap without identifying any individual or which communications devices will be tapped. In 2006 the USA Patriot Act Improvement and Reauthorization Act slightly reformed this section, requiring the FBI to file a report after its interceptions are complete explaining why the target was wiretapped. But there is no public information available about how the government uses section 206 to collect information against people.
- The “lone wolf” provision (Section 6001): This section authorizes the government to obtain secret surveillance orders against people who are not affiliated with any international terrorist group or foreign national terrorist group, but who are a target “of interest” for the government. The name of this provision came from a hypothetical scenario of an individual “lone wolf” terrorist, who acts alone in committing terrorist acts. No information is publicly available about how the government has used this provision. Without Section 6001, the government is able to obtain a surveillance order against someone the government has probable cause to believe is engaged in acts of terrorism. Under Section 6001, the government does not need a court order before starting surveillance on anyone it merely suspects of terrorist activity.
- The “Library Records” Provision (Section 215): This provision allows the government to seize library records, book purchase records, or any other “tangible thing” it claims is relevant for a terrorism investigation (without any need to identify any relevance of a particular person the government is investigating). Under this provision, the government can seize items belonging to people who are not suspected of terrorism. Section 215 orders also include gag orders prohibiting disclosure of the seizure to anyone but the Department of Justice Inspector General about how these orders are being used.
Material Support Provision
In June 2010, the U.S. Supreme Court voted 6 to 3 in Holder v. Humanitarian Law Project that the Humanitarian Law Project (HLP) would violate the “material support” provision of the UPA if it gave peaceful advice to an organization on the federal government’s “foreign terrorist organization” (FTO) list. “Material support” is defined to include any “service,” “training,” “expert advice or assistance” or “personnel.” Under the law, people face up to 15 years in prison for providing “material support” to FTOs, even if their work is intended to promote peaceful, lawful objectives. The ACLU filed a “friend of the court” brief on behalf of the Carter Center, Human Rights Watch, and other peaceful groups, pointing out that former President Carter’s human rights work could be prosecuted under the law
The nonprofit HLP mediates international conflicts and trains organizations around the world on how to peaceably resolve their conflicts and how to present their human rights grievances to the U.N. for resolution. The HLP wanted to help Kurds with such grievances, but many Kurds are members of the Kurdistan Workers Party, designated as an FTO. The HLP stopped many of its activities in fear of prosecution and sued the government, arguing that the material support provision is illegal as applied to advocacy of peaceful, lawful activity. The HLP lost, and it is now clear that the reach of the material support provision of the UPA will chill peaceful advocacy of human rights.
Sneak And Peak Provision
The federal government has argued that the UPA’s amendments to the Foreign Intelligence Surveillance Act (FISA) allow it to get an order from the FISA Court (a secret group of judges appointed by the Chief Justice of the Supreme Court) for searching people’s homes and offices without a warrant or notice to the searched party. Such FISA searches even allow interception of attorney client communications.
Prior to the UPA, such a “sneak and peak” search was allowed only if the “primary purpose” of the search was to gather intelligence to “stop espionage or terrorism by putting an agent of a foreign power in prison.” The UPA amendment to FISA broadened this to include situations where the government states that that is a “significant purpose” of the search.
In 2009 the Oregon federal district court held that this UPA/FISA provision violated the Fourth Amendment of the U.S. Constitution. Mayfield v. U.S., 588 F.3d 1252 (D. Or. 2009). In that case, the FBI had done “sneak and peak” searches in Brandon Mayfield’s home and office. Mayfield is an attorney who happens to be a Muslim, who was wrongly suspected, investigated and imprisoned in connection to the 2004 Madrid train bombings, in an egregious example of law enforcement bungling and overreaching. The Italian government repeatedly informed the FBI that the FBI had a mistaken fingerprint identification and that the Italians had located arrested the suspect already.
Mayfield settled his monetary claims against the government (receiving an unprecedented apology from the FBI), but retained the right to challenge the constitutionality of the UPA/FISA law. Judge Aiken of the Oregon district court held that the “significant purpose” provision allowed federal agents to gather intelligence on ordinary crimes rather than terrorist acts. The government appealed, and the Ninth Circuit Court of Appeals reversed the decision in March 2010. The Ninth Circuit unfortunately did not rule on the constitutionality of the Act; instead the court held that the settlement agreement provided a full remedy for Mr. Mayfield, and that after settling he did not have “standing” to challenge the constitutionality of the law. In October 2010 the Supreme Court declined review of the case.
The “significant purpose” provision was also challenged in United States v. Mubayyid (in Massachusetts federal court). There, the defendants in a criminal case challenged the fact that the law does not require notice to the person whose communications are intercepted unless the government “intends to enter into evidence or otherwise use or disclose” such communications in judicial or other official proceedings. The court disagreed, holding that the national security interests at stake differ from traditional criminal surveillance and searches, and that it could not find that Congress’s rationale was “unreasonable or otherwise violates the Constitution.”
Similarly, a FISA court case frustratingly known only as “In re Sealed Case” held that the interests of secrecy and constitutional protections are “well-balanced” in the UPA/FISA. The court held that “A terroristic attack or similar emergency falls outside the scope of ‘the normal need for law enforcement,’” as long as the purpose of the investigation is “to protect the nation against terrorists and espionage threats directed by foreign powers.”
It is notable, however, that both the Massachusetts court and the FISA court held that because the applications for searches fit within the older “primary purpose” standard, they did not need to weigh in on the constitutionality of the “significant purpose” amendment.
http://www.thefreelibrary.com/Terror%27s+other+faces+Ranks+of+al-Qaida+include+Asians+and+Africans…-a082116547 (Washington Post, 1/18/02, A-18).
USA Patriot Act, Pub. L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001)
FISA as amended by the UPA, 50 U.S.C. § 1806(c).
In re Sealed Case, 310 F.3d 717, 736 (For. Intel. Surv. Rev. 2002).
Mayfield v. United States, 588 F.3d 1252 (D. Or. 2009)
Mayfield v. United States, 599 F.3d 964 (9th Cir. 2010).
U.S. v. Mubayyid, 521 F. Supp. 2d 125, 140 (D. Mass. 2007).