The Usa Patriot Act: One Year Later --
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The Usa Patriot Act: One Year Later
by C. William Michaels and Jennifer Van Bergen
t r u t h o u t | Report
Thursday, 14 November, 2002
On October 26 America observed a dubious anniversary--one year from the signing by President George W. Bush of the USA PATRIOT Act. The year has been an eventful one for all those concerned about the direction of the country and about civil liberties. Unfortunately, it also has a been a year when those who have followed developments since the PATRIOT Act have seen the formation of trends which, left unchecked, may fulfill the most dire predictions of those who have taken a long look at this comprehensive statute.
Among those predictions are the relative absence of judicial review of the Act, the bold movement by federal investigative and law enforcement agencies to utilize the substantial powers granted to them by the Act, the distraction of Congress on other matters muting Congressional oversight of these governmental agencies activities, and the complacency of large segments of the American public. The combination does not bode well for civil liberties or the national direction, especially given that the vast majority of the PATRIOT Act is permanent.
A Review of the Act and Themes
The USA PATRIOT Act stands for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism." It was enacted by Congress virtually without significant debate, without detailed committee reports, without a conference committee, and with little floor commentary. Submitted just several days after the September 11 (2001) attacks, it was rushed through Congress at lightning speed for a statute of its size and complexity. It passed the House on October 24, 2001 by a vote of 357 to 66, and passed the Senate the next day, October 25, 2002, by a vote of 98 to 1. It was signed into law by President Bush the following day, October 26, and is now the law of the land.
The PATRIOT Act contains more than 150 sections. It is divided into ten separate Titles and is hundreds of pages long. The powers it grants to federal investigative agencies are unprecedented and reach everything from voice mail to consumer reports to banking records. It is highly doubtful that a statute as extensive as this could have been written from scratch while at the same time moving through Congress in a mere 45 days. Consider that the Homeland Security Act, considerably less extensive than the PATRIOT Act, is still bogged down in Congress after months, in limbo due to wrangling between the White House and the Senate over certain aspects such as internal structure and employee protections. The PATRIOT Act received no such attention yet its effects are tremendously more wide ranging.
Numerous activists groups such as ACLU, Center for Constitutional Rights, and others, sounded the alarm about the Act soon after it was introduced. However, the sea change in political climate which occurred virtually overnight after the September 11 attacks made the Act virtually unstoppable. Congress was determined to send a message to the terrorists and to give the White House what it wanted. The real question is what message ultimate will be sent and to whom. And it has become quite apparent that what the White House wanted by way of the PATRIOT Act is not necessary to effectively deal with the causes and incidents of terrorism. In fact, to date, no person has been arrested in the United States and charged with direct involvement in the September 11 attacks.
There was little to be done except watch as Congress enacted this monstrous statute. The American people will now be living with it for years to come.
Many misconceptions have arisen about the PATRIOT Act: it will sunset in a few years, the granted only limited authorities to federal agencies, it deals only with aliens or foreign nationals, and it is restrictive in length and scope. That is not so. The situation is far worse. Only very selected portions of the Act will sunset in 2005, the authorities it grants are massive, its reach conceivably can include every American, and it contains extremely extensive and detailed provisions.
Of course, since September 11 there have been many other related developments: the military tribunals, the Office of Homeland Security, bioterrorism legislation, the new wave of aviation security, the globalization of the "war on terrorism," dramatic increases in surveillance of the public, skyrocketing military spending, the war in Afghanistan, and impending war with Iraq. Discussion of those would take us too far afield for present purposes since these developments have occurred parallel to but do not arise directly from the PATRIOT Act.
That does not leave us wanting. There is still plenty to review. The Act is among the most wide-ranging laws passed by Congress in recent memory, bringing new federal offices into being, creating new crimes, amending--in many cases substantially--at least 12 federal statutes, mandating dozens of new reports and regulations from agencies in four Cabinet Departments, and directly appropriating $2.6 billion (with more funding to come from approval of various "authorizations" of unnamed amounts, scattered throughout the statute).
At the outset, it may be worthwhile to list the Act's ten Titles, as a way of noting its grand scope:
Title I: Enhancing Domestic Security Against Terrorism
Title II: Enhanced Surveillance Procedures
Title III: International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001 (which has three subtitles and is by far the longest Title, representing the bulk of the Act's language)
Title IV: Protecting the Border
Title V: Removing Obstacles to Investigating Terrorism
Title VI: Providing for Victims of Terrorism, Public Safety Officers, and Their Families
Title VII: Increased Information Sharing for Critical Infrastructure Protection
Title VIII: Strengthening the Criminal Laws Against Terrorism
Title IX: Improved Surveillance
Title X: Miscellaneous
Going through these Titles and their sections, several themes appear consistently. Among them are: expansion of existing law, information sharing between federal investigative agencies, greater abilities for federal investigators to collect and utilize information, vigorous use of existing definitions of "foreign intelligence" and "terrorism," targeting of aliens as suspect groups, greatly increased surveillance and prosecutorial powers, enhanced visibility and responsibility of the entire intelligence community, and limited judicial review. These themes certainly have marked the use of Act's powers by federal agencies in the past year.
A Tour Through Act Highlights
It is not possible in this limited space to describe each of the Act's ten Titles, although just a review of the title names themselves provides a sense of how extensive the PATRIOT Act is. Unfortunately, most of the attention paid to the Act in the general media and by most activist groups has been devoted to Title II and Title VI, which means eight of its Titles have received relatively little comment. Without getting too involved, a brief tour through some of the Act's highlights will underscore concerns raised so far and point out areas that to date have been effectively overlooked:
Section 101--Establishes a new counterterrorism fund without fiscal year limitation and of unnamed amount, to be administered by the Justice Department for its own use.
Section 103--Re-invigorates the Justice Department's "Technical Support Center" (established by the Anti Terrorism and Effective Death Penalty Act of 1996) and gives it $200 million for each of the next three years, 2002 through 2004.
Section 105: Establishes a "national network of electronic crimes task forces" to be set up by the Secret Service throughout the country to prevent, detect, and investigate various electronic crimes "including potential terrorist attacks against critical infrastructures and financial payment systems"--which can mean a wide variety of computer crimes.
Section 203: Mandates information sharing, including of previously secret grand jury testimony, between any number of federal agencies so long as the information involves "foreign intelligence"--using the broad definition of that term found in the Foreign Intelligence Surveillance Act (FISA), a definition which includes the following: "information, whether or not concerning a United States person, with respect to a foreign power or foreign territory that relates to the national defense or the security of the United States or the conduct of the foreign affairs of the United States." Such information which is in the possession of any federal investigative or law enforcement officer or attorney can be shared--without any court review or involvement--with any other federal "law enforcement, intelligence, protective, immigration, national defense, or national security official."
Section 218: Changes the scope of warrants under FISA from foreign intelligence being "a purpose" to "a significant purpose" of the investigation and so lowers the standard for obtaining a FISA warrant (assuming such warrants were difficult to obtain in the past and that most definitely has not been the case). Note that an investigation under FISA even though it usually involves foreign nationals or aliens does not have to be so restricted, and under the broad definition of "foreign intelligence" can include United States citizens.
Sections 207 and 208: Increases the duration of FISA warrants and boosts the number of FISA court judges.
Section 209, 212, 215, 216: Sets into motion numerous technical changes and enhancements for standard surveillance techniques, for example, taking voice mail out of the requirements of wiretap statutes, and authorizing the use of "Carnivore" type electronic computer surveillance programs.
Section 212: Provides for voluntary and required disclosures to federal investigators by firms such as Internet service providers.
Section 213: Allows delayed notification of "non-physical search and search warrants" (known as sneak and peek warrants) generally used in FISA investigations but could be used in other investigations.
Section 215: Allows access to "any tangible thing" for federal investigators in FISA-type investigations.
Section 219/220: Sets up single jurisdiction search warrants and nationwide service of warrants.
Section 311: A highly technical section allowing for federal investigators, in certain conditions, to impose extreme "special measures" upon any domestic bank or financial institution, seeking information related to terrorist financing.
Section 312: Another detailed provision imposing upon banks and domestic financial entities new "minimal" and "enhanced" due diligence requirements on certain accounts, as a way of revealing possible use of accounts for terrorist financing (exhaustive Treasury regulations and other directives already have been issued on the requirements of Sections 311 and 312).
Section 319: Sets a 120-hour deadline for financial institutions to respond to certain information requests by federal investigators involving wide range of accounts.
Section 316 and 319: Creates new forfeiture provisions for those charged or convicted of certain terrorist crimes especially including money laundering, setting forfeiture authorities virtually unheard of in federal law to this point.
Section 319: Permits access by federal investigators of records of certain "correspondent" accounts with foreign banks.
Section 326: Establishes new or expanded requirements to track identities of persons opening new bank accounts.
Section 326: Authorizes a study to track aliens or foreign nationals by a system similar to social security numbers.
Section 358: Allows government investigator access to consumer records, which does not require a court order and is to be provided in secret and without civil liability.
Section 361: Establishes or expands the "FinCEN" office in the Treasury Department, accompanied by a long list of duties for this office and substantial funding.
Section 403: Mandates a dramatic new information system to allow State Department access to certain criminal files kept by the FBI (such as NCIC-III files).
Section 403: Requires a new technology standard to be applied to visas and all border checkpoints, including biometric methods.
Section 414-417: Sets up new standards and studies for entry and exist systems and data systems for border entry points, including machine-readable passports.
Section 411: Creates a new definition of terrorism for this Title, notably establishing three separate types of "terrorist organization" with wide latitude by federal investigations such as in the State Department to "identify" these terrorist groups.
Section 412: Provides for mandatory detention of suspected aliens, lists seven bases for such detention, allows for a person to be held for seven days without any charge, permits possible indefinite detention for aliens deemed not removable, and ensures limited court review.
Section 412: Requires biannual report to Congress on aliens detained, but this report is not required to contain essential information such as name, when seized, where detained, or nature of charges.
Section 416: Expands, with increased funding, the foreign student monitoring program.
Section 503: Greatly expands the DNA information bank as to criminals, which now will include any crime of violence and all terrorist crimes.
Section 504: Links investigation of any crime with search for foreign intelligence, for purposes of information sharing.
Section 505: Allows government investigators access to consumer reports, without court order, also to be produced in secret and without civil liability.
Section 507 and 508: Allows government investigators access to educational records, without court order.
Section 701: Establishes a major initiative for a "secure information sharing system" to assist all law enforcement agencies, and this would include State and local agencies, to investigate and prosecute multi-jurisdictional terrorist conspiracies and activities.
Section 802: Creates new crime of "domestic terrorism."
Section 803: Expands or clarifies the crimes of harboring, concealing, or providing material support for terrorists.
Section 808: Expands the extensive list of "federal crime of terrorism" which now includes certain computer crimes.
Sections 809-812: Provides for no statute of limitations for certain terrorist crimes, and allows increased penalties--including "supervised release" similar to parole in federal system, which now can be up to life (unheard of in federal sentencing system until now).
Section 901: Mandates information sharing by CIA to Justice Department.
Section 903: An unusual Section which deputizes all "officers and employees" of the "intelligence community" (13 agencies) and turns them into mini-CIA to investigate terrorism.
Section 905: Mandates information sharing by Justice Department and similar law enforcement agencies to CIA.
Section 908: Sets up an ongoing cross agency training program for various law enforcement officials and agencies, including State and local, so they can better recognize "foreign intelligence" material, information, or evidence in their criminal surveillance or investigations.
Section 1005: Provides grants for State and local fire and emergency response departments, under the "First Responders Assistance Act," which grants can include technology and equipment for intelligence gathering and analysis, and funds the program at $25 million for fiscal years 2003 through 2007.
Section 1016: Establishes new programs for critical infrastructure protection.
The Record So Far
With these greatly expanded powers, covering a long list of new authorities and mandates, federal agencies have been busy. In the Justice Department, information sharing protocols authorized by the PATRIOT Act were recently issued by Attorney General John Ashcroft. These protocols make it clear that the Justice Department will use to the fullest extent, the authorities granted to it by the Act. Among this information sharing is communication by Justice Department personnel to intelligence personnel within 30 days on whether a criminal investigation will be launched based on a given crime report, if the crime report indicates that foreign intelligence may be involved. New FBI guidelines on undercover operations have been announced which roll back permitted FBI activity to a activities of nearly 30 years ago that were the subject of widespread criticism.
New federal investigative task forces are being created, with Justice Department in the lead, including identification by the United States Attorney for each judicial district of members of a terrorist task force which can be quickly assembled from local federal agency personnel when the need arises. Also, there are several ongoing cross agency task forces to investigate terrorism or terrorist financing such as Operation Green Quest.
The Treasury Department has issued tremendously detailed regulations for Title III's new requirements for banks and other financial institutions. Title III has effectively rewritten many banking laws and introduced new requirements to the point that domestic bank are virtual partners with the federal government in investigating financial aspects of terrorism. Spurred by PATRIOT Act authority to investigate any forms of money transfer that may be linked to terrorism, new arrests and detentions have been made by federal agents of principals of certain targeted charitable groups which send money abroad, especially to the Middle East, shutting these organizations down under the guise of investigating terrorism.
The State Department, on its own or through Executive Order, has identified a whole new list of terrorist groups. Cooperating with the INS, FBI and in some instances CIA, information sharing has gotten to the point where a suspected terrorists can be arrested or rounded up by any number of these agencies. The State Department has cooperated with the INS (in the Justice Department) to round up thousands of aliens suspected of terrorism, although most have been either released, given minor charges, deported on visa or other technical violations. In August, 2002, a federal court (Judge Gladys Kessler) ruling in favor of various groups who sued the Justice Department and the INS demanding information on detainees, recently ordered the government to release the names of the remaining detainees (as many as 150). But the government has refused to do so citing national security concerns and has sought a stay of the order pending appeal.
The PATRIOT Act has given not only new authorities but also a new hubris to federal investigative agencies. Its emphases on information collection, information sharing, expanded definitions, new regulations, cross-agency cooperation, wider authorities, enhanced surveillance techniques, swifter prosecutions, and more severe sentences have brought law enforcement and terrorism investigation in America to new levels. Unfortunately, Congress, having handed over such tremendous authorities to the Executive Branch, has spent little time reviewing what it has wrought. But the PATRIOT Act cannot fade into the distance. It is very much with us, and its effects have not yet totally been felt.
Although many watchdog groups and organizations are turning their attention to other things, we cannot totally turn our backs on these developments. The second Part of this two part article will take a look at some emerging trends and note items for special attention in the foreseeable future.
C. William Michaels is an attorney and writer in Baltimore, Maryland. His just released book, No Greater Threat: America After September 11 and the Rise of a National Security State (Algora Publishing NYC, 2002) contains a review and analysis of the entire USA PATRIOT Act. The book is available from Barnes & Noble and Amazon.com. For more about the book and the author, go to www.nogreaterthreat.com
Jennifer Van Bergen is a graduate of Cardozo School of Law in NY and is on the faculty of the New School University in New York. Her six part article series for "truthout" "Repeat the PATRIOT Act" in April-June 2002 was one of the first widely distributed and detailed public commentaries on the statute. She is a columnist for truthout.
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