Repeal the USA Patriot Act --
Part IV: Patriotism or Tyranny?
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This is Part IV of a six-part t r u t h o u t series on the USA Patriot Act. Previous parts have focused on reasons why the Act should be repealed or amended, a comparison of the USA Patriot Act with the Alien and Seditions Acts of 1798, and evidence of civil rights violations of current detainees and of torture in previous terrorism cases.
Parts IV and V give a survey of the different provisions of the USA Patriot Act. Part IV covers how the Act mixes criminal law and foreign intelligence work, puts the CIA back in the business of spying on Americans, allows law enforcement to enter your home without you knowing it, and track your emails and internet activity. Part V will discuss how the Act punishes some people for engaging in innocent First Amendment associational activity, violates other civil rights of immigrants, uses secret evidence, curbs judicial oversight, and invades financial and student records. Part VI discusses national security.
Repeal the USA Patriot Act
Part IV: Patriotism or Tyranny?
by Jennifer Van Bergen
t r u t h o u t | April 4, 2002
Awareness of events in other parts of the world -- poverty, starvation, internal wars, genocide - may make Americans feel reticent to acknowledge the shock and fear that followed the September 11th attack on U.S. soil. These emotions are no less real, nonetheless, and our concern for safety is warranted. The USA Patriot Act, however, does little to increase our safety and much to undermine it further by internal means.
Nancy Chang, Senior Litigation Attorney at the Center for Constitutional Rights, sums it up well: "To an unprecedented degree, the Act sacrifices our political freedoms in the name of national security and upsets the democratic values that define our nation by consolidating vast new powers in the executive branch of government."
Chang points out that the USA Patriot Act "launches a three-pronged assault on our privacy."
First, Chang says, "the Act grants the executive branch unprecedented, and largely unchecked, surveillance powers, including the enhanced ability to track email and Internet usage, conduct sneak-and-peek searches, obtain sensitive personal records, monitor financial transactions, and conduct nationwide roving wiretaps."
Second, "the Act permits law enforcement agencies to circumvent the Fourth Amendment's requirement of probable cause when conducting wiretaps and searches that have, as a 'significant purpose,' the gathering of foreign intelligence."
Third, "the Act allows for the sharing of information between criminal and intelligence operations and thereby opens the door to resurgence of domestic spying by the Central Intelligence Agency."
When I talk to people about the USA Patriot Act, many say, "The USA Patriot Act? What's that?" That's where we are. Many Americans have no idea this law was even enacted, let alone how it affects them. Those who know what the Act was intended to do, do not know what it actually does.
The proponents of this Act used American shock and fear to slip this law past our awareness.
However, unlike the Act's proponents (who really think they can get away with this), I believe in the intelligence of the average American. I believe that regular Americans, armed with knowledge, know how to use common sense. I believe that American common sense is the bedrock of our country.
Prepare now to carry on a great American tradition: find out what your government is up to, so you can form your own opinion and talk about it with your friends, colleagues, coworkers, relatives, and neighbors.
Let's take a closer look at some of the provisions.
DOMESTIC CRIME INVESTIGATIONS VERSUS FOREIGN INTELLIGENCE GATHERING
Criminal investigations and foreign intelligence investigations have historically, and with good reason, been kept separate in our country.
The USA Patriot Act blurs the dividing line between these two areas of law, undermining procedural protections inherent in criminal law.
For example, before the USA Patriot Act, domestic electronic surveillance was governed by Title III of the Omnibus Crime Control and Safe Streets Act (OCCSSA). OCCSSA provided adequate safeguards for basic constitutional rights, such as the Fourth Amendment probable cause warrant requirement and judicial review. The crimes that were covered by this law were specifically-defined serious crimes.
Foreign intelligence, on the other hand, was governed by the Foreign Intelligence Surveillance Act (FISA). FISA granted the Attorney General authority to certify an alien as an agent of a foreign power. There were no Fourth Amendment probable cause protections, and no judicial review.
Under the USA Patriot Act, the boundaries between these two territories of law are breached. An immediate and direct consequence of this breach is an immediate and direct loss of constitutional protections for both American citizens and immigrants. Read on.
"THE USA PATRIOT ACT PUTS THE CIA BACK IN THE BUSINESS OF SPYING ON AMERICANS"
That's how the American Civil Liberties Union put it. Section 203 of the Act allows law enforcement to share with intelligence agencies -- including the FBI, CIA, NSA, INS, Secret Service, and Department of Defense -- sensitive information gathered during a criminal investigation. The types of information that could be shared include information revealed to a grand jury (previously prohibited by law), telephone and internet intercepts obtained without court order and without restrictions on the subsequent use of the intercepted information, and any other "foreign intelligence" information obtained as part of a criminal investigation.
This, alone, is reason enough to amend the Act. As the ACLU says: "The USA Patriot Act would tear down [procedural] safeguards and once again permit the CIA to create dossiers on constitutionally protected activities of Americans and eliminate judicial review of such practices."
Not to mention that it is a violation of the CIA's charter to engage in law enforcement or internal security functions.
The Foreign Intelligence Surveillance Act (FISA) was enacted to halt just this sort of activity. The USA Patriot Act arrogantly overrides the protections secured by FISA.
"SNEAK AND PEEK" WARRANTS
This is another provision that not only does not protect Americans from terrorism, but rather exposes us to incursions from our own government.
This one enables the government to go into your house when you are not home, look around, take pictures, and even seize your property, all without telling you.
This is the movie, "Enemy of the State," come to life. Don't get used to this, people. It's an outrage. It's your home. It's your privacy. It's your life.
Law enforcement is still required under this provision to obtain a warrant to enter, but it no longer has to give you the timely notice which both the Federal Rules of Criminal Procedure and the Fourth Amendment require. The only justification law enforcement now needs to enter without notice is that notice might "seriously jeopardize an investigation or unduly delay a trial."
This clause is actually adopted from existing law (18 USC 2705). However, the USA Patriot Act sneakily changes the meaning of the existing law, since the delayed-notice exception was previously only applied to communications in the custody of a third party. Now, this authority is available to law enforcement for any kind of search and in any kind of criminal case.
Other grounds for delaying notice encompassed by this provision have some semblance of meaning. For example, the possibility that if the target had notice, he might destroy evidence or flee prosecution. But, jeopardizing an investigation? This is the snake eating its own tail.
YOUR TELEPHONE AND COMPUTER ARE BEING TAPPED ... AND NO JUDGE CAN STOP IT!
Under Section 216 of the Act, law enforcement now not only has the authority to intercept transmissions from people suspected of terrorist activity, but also from people under investigation for other crimes as well.
Okay, so what? They're still criminals, right? Wait.
This authority now contains no constitutional safeguards. Judges are now required to issue blank warrants without reference to a location or jurisdiction, as long as law enforcement certifies that the surveillance is "relevant to an ongoing criminal investigation."
What happened to the Fourth Amendment? What happened to the requirement that law enforcement go to a judge and show there is probable cause that criminal activity is occurring?
The Act doesn't stop there. Section 216 of the Act extends this low threshold of proof beyond the mere "trapping and tracing" of telephone numbers. It extends it to tracing your emails and internet activities.
Telephone numbers can easily be separated from telephone conversations; email addresses are not so easily separated from email contents. The FBI says that it can be trusted to separate the email addresses from the content. Oh, really? I suppose defendants should also trust prosecutors, and the poor should trust the rich.
Morton Halperin, former National Security Council consultant, writes in The New Yorker that if a government intelligence agency "thinks you're under the control of a foreign government, they can wiretap you and never tell you, search your house and never tell you, break into your home, copy your hard drive, and never tell you that they've done it."
The Electronic Frontier Foundation states: "The civil liberties of ordinary Americans have taken a tremendous blow with this law ... Yet there is no evidence that our previous civil liberties posed a barrier to the effective tracking or prosecution of terrorists."
Tomorrow, Part V will discuss how the Act punishes some people for engaging in innocent First Amendment associational activity, violates other civil rights of immigrants, uses secret evidence, curbs judicial oversight, and invades financial and student records.
Jennifer Van Bergen holds a law degree from Benjamin N. Cardozo School of Law, is an adjunct faculty member at the New School for Social Research in New York, and is a member of the Board of the ACLU Broward County, Florida Chapter.
Jennifer Van Bergen is an Editor and a regular contributor to t r u t h o u t.
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