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The USA Patriot Act (last updated September 25, 2004)
Fahrenheit 9/11 criticizes how the USA Patriot Act became law, suggesting that the Bush administration got it enacted without allowing lawmakers the opportunity to read it before voting on it. It also suggests that the Patriot Act re-defines terrorism so broadly that Michael Moore himself could be considered a terrorist.
The Patriot Act was enacted within weeks of the September 11, 2001 attacks to help the federal government investigate and combat terrorism. The Act has many facets and has become almost a pseudonym for an overreaching government, but it has largely been criticized for its expansion of governmental surveillance powers and its broader definition of terrorism to include domestic terrorism.
"The process is not one that all will embrace"
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Rep. John Conyers Jr. (D-Mich.) is seen in Fahrenheit 9/11 complaining about how the Patriot Act was enacted, claiming that people were forced to vote on it without even getting a chance to read it over. There is some truth to this statement, though he presumably did read an earlier version and other Democrats at the time said that they had improved the final legislation specifically by taking the time to read it.
Within days of the September 11, 2001 attacks, the Bush administration proposed legislation that would combat terrorism by allowing more intelligence-gathering efforts, providing more authority to detain and remove suspected terrorists, and targeting terrorist organizations' financial resources.
House Judiciary Committee chairman James Sensenbrenner, Jr. introduced the proposed legislation on October 2, and it was passed by the House on a 345-73 vote 10 days later. In an Oct. 12 statement (on-line here), Sensenbrenner noted that the process had been quick and had not been "ideal," but defended the House version enacted that day. "The work of the House Judiciary Committee over the past few weeks has greatly improved upon the original Justice Department proposal," he said.
Senate Majority Leader Tom Daschle (D-S.D.) introduced a similar version of the legislation on Oct. 4, and it was enacted by a 96-1 vote seven days later. There were differences between the two measures: the Senate version included money-laundering provisions that were stronger than the House's, and the House version included a provision that "sunset" surveillance measures after five years and that was not in the Senate version.
The House and Senate Judiciary Committees began meeting in mid-October to reconcile the differences between their bills, a process that was complicated by the anthrax scares that closed the House and Senate offices for several days. Such meetings usually result in a conference report that reconciles differences between House and Senate bills and that is voted upon by both houses.
In this case, however, Rep. Sensenbrenner introduced a new bill on Oct. 23, incorporating and replacing the House and Senate bills previously passed. Sensenbrenner acknowledged in a statement (on-line here) that "the process is not one that all will embrace," but noted that "these are difficult times that require steadfast leadership and an expeditious response."
Sensenbrenner said that the changes from the prior legislation were "few but significant." Among other things, the modified bill sunset surveillance measures after four years and contained the money-laundering provisions from the Senate bill.
The House passed this bill by a 357-66 vote the next morning.
Democrats accused the House Republicans of reneging on promises to go through the traditional conference process. Consistent with his statements in Fahrenheit 9/11, Conyers blamed Attorney General John Ashcroft, saying in an Oct. 24 statement (on-line here) that Ashcroft "forced the House to jettison a unanimously passed bipartisan conference bill crated by the Judiciary Committee. He forced the cancellation of a conference committee hearing, fearing that the democratic process would [] produce a bill that did not give him his wish list. This process is so faulty that there are literally no printed copies of this bill and there is no accompanying legislative history."
Similarly, Sen. Patrick Leahy (D-Vt.), the chair of the Senate Judiciary Committee, said on Oct. 25 that that he was "disappointed that the commitment we received to hold a conference - at which these proposals could have been considered more fully - was not honored." He said that the "House Republican leadership reneged on the agreement to proceed by way of a traditional House-Senate conference. Instead, they opted to proceed by a new bill."
Nonetheless, Leahy supported the new bill. "We have done the White House a great favor by taking the time actually to read and improve this bill before passing it," he said in an Oct. 24 statement (on-line here.
The Senate passed the bill on October 25, 2001 with a 98-1 vote, with one senator not voting. President George W. Bush signed the bill into law the next day.
Surveillance Provisions
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The most controversial aspects of the Patriot Act are its 24 surveillance provisions, which can be broken down into five broad categories as follows:
- Surveillance and searches relating to agents of a foreign power. Sections 206, 207, 208, 214, 215, 216, and 218 strengthen the government's powers under the Foreign Intelligence Surveillance Act to conduct surveillance, conduct physical searches, and run pen registers on people who are believed to be agents of a foreign power (this includes US citizens who knowingly engage in international terrorism but not domestic terrorism). For example, the government is less restricted in applying for court orders authorizing electronic surveillance (section 218), and the government can get orders allowing for "roving surveillance" that allows for easier following of a target and for longer time periods (section 207). Some provisions set to expire after 2005.
- Sharing of information. Section 203 allows federal investigators to share information gained during the course of a grand jury proceeding, a wiretap, or a foreign intelligence investigation to other law enforcement official in order to carry out his or her activities. Some aspects set to expire after 2005.
- Warrants. Section 213 allows the government to delay notification of a warrant to a suspect under some circumstances. Section 219 allows a court to issue a warrant relating to domestic or international terrorism covering any district. Neither section is set to expire after 2005.
- Wiretaps. Sections 201 and 202 add terrorism-related crimes and "computer fraud and abuse offenses" to the list of crimes for which the federal government can apply for wiretaps. Set to expire after 2005.
- Electronic Records. Sections 209, 210, 211, and 212 authorize the government to get access to voice mail and cable records with proper authorization from a court. Some sections set to expire after 2005.
Under the sunset provision, Section 224, some of these surveillance provisions are set to expire after December 31, 2005; Bush has called for a renewal of these provisions. Other provisions dealing with money laundering, border controls, and new crimes and penalties specifically covering acts of terrorism are not set to expire automatically and do not need to be renewed.
Section 215
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The Patriot Act's single most controversial surveillance section probably is Section 215, "Access to Records and Other Items under the Foreign Intelligence Surveillance Act," which amends the FBI's power under FISA to apply for a court order authorizing the "production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution."
One reason this section is so controversial is that it lacks some of the procedural checks that other FISA powers have and that the previous version of this provision had. Under the Patriot Act, a Section 215 application does not have to be accompanied by a statement of facts certified by an agent, it does not have to be approved by the Attorney General, and it can be approved without a finding of probable cause.
Moreover, Section 215 can be used to investigate all US citizens, not just those who are believed to be agents of a foreign power. It can also be used to investigate US citizens in part or even mostly because of their exercise of First Amendment rights (only applications based "solely" on such activities are prohibited).
There is also little way to regulate the use of Section 215 orders, as people ordered to comply with a Section 215 order are also required to keep the application, order, and their compliance secret. The federal government also initially deemed the number of times that a Section 215 application had been made as classified.
Given Section 215's power and the limited transparency and oversight involved, many have raised fears that the government could be abusing Section 215. The American Civil Liberties Union, for example, has called Section 215 "misguided, dangerous, and unconstitutional."
It is still unclear how often the FBI has invoked Section 215. The Justice Department had as of September 2003 never used Section 215 to seek business records, including library records, according to a statement by Rep. Sensenbrenner (on-line here). It is unclear from the statement whether the Justice Department has sought other items using section 215, as it covers any "tangible objects" and not just business records.
Definition of Terrorism
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Another controversial aspect of the Patriot Act is Section 802, which did modify the definition of terrorism to include activities intended to cause mass destruction and to include acts that occur within the United States.
Still, this broader definition of terrorism is grounded in acts that are both "dangerous to human life" and violate federal or state criminal laws. Accordingly, anti-government militia groups would count as domestic terrorists, but Michael Moore and non-violent, liberal groups would not. Environmental terrorists could count, but not peaceful demonstrators.
The effect of this definition is somewhat limited, as many of the government's special investigative powers relating to terrorism specifically relate to "international terrorism" and to "foreign intelligence information," not to "domestic terrorism" or "terrorism" in general. The Patriot Act does allow the federal government to apply for court orders for otherwise confidential educational records relating to an act of domestic or international terrorism and it does give the government more forfeiture powers relating to both kinds.
Of course, it is possible for federal agents to incorrectly interpret and apply the definition, and it would be difficult to monitor such actions. But that is a problem with enforcement of the law, not the law itself.
Here is the current federal definition of terrorism as defined in 18 USC 2331, as modified by the Patriot Act. New language is in bold:
- (1) the term ''international terrorism'' means activities that
- (A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State;
- (B) appear to be intended -
- (i) to intimidate or coerce a civilian population;
- (ii) to influence the policy of a government by intimidation or coercion; or
- (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
- (C) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum;
- (2) the term ''national of the United States'' has the meaning given such term in section 101(a)(22) of the Immigration and Nationality Act;
- (3) the term ''person'' means any individual or entity capable of holding a legal or beneficial interest in property;
- (4) the term ''act of war'' means any act occurring in the course of -
- (A) declared war;
- (B) armed conflict, whether or not war has been declared, between two or more nations; or
- (C) armed conflict between military forces of any origin; and
- (5) the term ''domestic terrorism'' means activities that -
- (A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;
- (B) appear to be intended -
- (i) to intimidate or coerce a civilian population;
- (ii) to influence the policy of a government by intimidation or coercion; or
- (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
- (C) occur primarily within the territorial jurisdiction of the United States.
Oversight of the Patriot Act
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With the surveillance provisions set to expire after 2005 if not renewed, debate has continued as to the effectiveness of the Patriot Act and whether it is being abused. President George W. Bush hailed the Patriot Act an "essential tool[]" in fighting terrorism in his 2004 State of the Union address and some have credited the Act with helping secure various indictments, but others have questioned its effectiveness.
In any event, the Department of Justice has taken steps to receive and investigate possible civil-rights abuses by its employees and officials. Section 1001 of the Patriot Act required that the Inspector General of the Department of Justice, an independent entity charged with auditing and investigating DOJ activities, investigate allegations of civil-rights abuses. The Office of the Inspector General has an e-mail address and a toll-free number for receiving complaints, and has spent at least $50,000 on direct advertising of these services.
According to semi-annual reports covering October 2001 through June 2004 and submitted to Congress, the Office of the Inspector General received more than 5,000 complaints from October 2001 through June 2004. Of these complaints, about 900 were within the OIG's jurisdiction and about 67 related to possible violations of the Patriot Act, including the detention of one person, Brandon Mayfield, in early 2004 based on an incorrect fingerprint analysis.
As of June 2004, the OIG had opened at least 25 investigations but had not substantiated any allegation relating to the use of the Patriot Act. It did substantiate at least one non- Patriot Act allegation, that an Immigration and Naturalization Services officer had improperly threatened a gas station attendant with deportation.
The OIG referred complaints not within its jurisdiction to other agencies for investigation. According to the OIG's reports, the Bureau of Prisons substantiated some allegations that were referred to it, including an allegation that correctional officers suggested that they would set three inmates on fire for being terrorists and another allegation that a doctor had treated inmates in a cruel and unprofessional manner.
The OIG also has investigated the Department of Justice's handling of 762 persons detained on immigration charges after the September 11, 2001 attacks. The OIG concluded in a June 2003 report that federal law-enforcement did not distinguish between aliens who it actually thought had a connection to a terrorism lead and those who were picked up incidentally during the course of an investigation and that detainees were sometimes held without being charged for extended periods of time. The OIG concluded in a supplemental December 2003 report that detainees at a Brooklyn center were held in restrictive and harsh conditions and that some were physically abused.
Sources: Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) of 2001, H.R. 3162, P.L. 107-56 (2001). Its predecessors were H.R. 2975 and S. 1510. The Office of the Inspector General's reports on the Patriot Act are available on-line here.
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