Civil Liberties Online
Introduction: The USA PATRIOT Act --A Shift in the Paradigm of Law Enforcement towards Increased Interception and Obstruction Powers?
The tragic events of September 11, 2001 changed Americans' perceptions of the world, especially as they relate to issues of security. Phrases like "asymmetric conflict," "global war on terrorism" and "non-state terrorist organizations" have found a place in everyday conversation as easily as long waits in airport security lines have found a place in our everyday travel. Opinion poll after opinion poll confirm that most Americans place security concerns over concern about loss of civil liberties. For example, a Fox News/Opinion Dynamics Poll conducted in July of 2005 revealed that when asked to decide what they think is more important, protecting your civil liberties and privacy from being invaded or protecting your safety and surroundings from terrorism, 65% choose "safety" as compared to 13% that choose "privacy" and 20% that choose "both." Full details of this public opinion poll and others like it are available at http://www.pollingreport.com/terror.htm. (Last visited October 10, 2005). Presumably, however, most Americans are unwilling to see a diminution in civil liberties unless they actually do see gains in security. Assessing how much more secure Americans are today than they were before 9/11 is beyond the scope of this projec. This project provides information about how civil liberties have been affected by changes in law, policy and priorities since 9/11.
In reaction to 9/11, we have seen responses ranging from staffing and budgeting adjustments to sweeping laws redefining the focus of entire government departments. We have witnessed the creation of an entirely new Department of Homeland Security and a substantial reorientation of the mission of existing government agencies such as the Department of Justice. In addition, Congress has enacted changes in laws aimed at strengthening the government's abilities to prevent and disrupt terrorist attacks before they occur, particularly, the USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272 (2001). The law's acronym (the full title of the legislation is the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act) highlights the emphasis on stopping terrorists before they can take human life and/or property.
The PATRIOT Act changes necessarily affect civil liberties, but the evolving and fluid state of the law and government practices in this area complicate the assessment of those effects. The persistent and ongoing nature of the threat of terrorism we face today distinguishes it from the various other threats we have faced throughout our nation's history. For that reason, our response to it has the potential to move beyond anything that has come before. See, Christopher Schroeder, Will the Sun Set on the Patriot Act? Duke Law Magazine, Vol. 23 No. 1 pg. 27 (2005). Will the changes prompted by 9/11 turn out to be merely a temporary shift toward safety along a spectrum of possible balance points between civil liberties and national security, a shift that gradually reverses itself over time? Or are we now experiencing a paradigm shift in the authorization and deployment of government resources that could result over time in an uncorrectable erosion of civil liberties? See, Erwin Chemerinsky, Losing Liberties, Applying a Foreign Intelligence Model to Domestic Law Enforcement, 51 UCLA L. Rev. 1619 (2004).
There are reasons to take seriously the prospect of a permanent paradigm shift The goal of being highly effective in intercepting and obstructing planning for terrorist activities creates continual pressure for information gathering and for legal enforcement tools that are quite different from the pressures produced by a legal regime focused on traditional criminal investigation and law enforcement. In the traditional law enforcement paradigm, resources are concentrated on investigation and prosecution of completed offenses. Prosecutions for attempted but thwarted crimes, as well as other kinds of interception and disruption, do occur in the traditional paradigm, but even then surveillance begins only at a point when the criminal enterprise is well underway and probable cause exists to believe that a crime has already been or will soon be committed.
In contrast, in a true interception-and-disruption paradigm, government seeks surveillance information well in advance of potential crimes. The compelling notion that "we have to be lucky all the time, the terrorists have to be lucky only once" looms large over this paradigm and stimulates a strong desire for more information about ever earlier stages of terrorist planning. As reported by Charles V. Pena at the CATO Institute, the comment "Remember, we only have to be lucky once. You will have to be lucky always" was made by the Irish Republican Army after a failed attempt to kill British Prime Minister Margaret Thatcher in 1984. (http://www.cato.org/pub_display.php?pub_id=2865). (Last visited October 10, 2005). Donald Rumsfeld, Secretary of Defense then applied the sentiment to the current US war on terrorism in an August 10, 2004 when he stated,"I know that our country working with so many other countries sharing intelligence and they're cooperating in putting pressure on these global terrorist networks is having good success in making their lives more difficult, making it more difficult for them to move between countries, to finance their operations, to recruit and retain their terrorists, to communicate with each other. But they only have to be lucky once or twice and they can kill 2 or 3,000 people." (http://www.homelandsecurity.org/bulletin/081304.htm). (Last visited October 10, 2005).
A pure version of a government both fully empowered to intercept and obstruct and fully capable of doing so remains the stuff of fiction, such as the dystopian surveillance state of "1984" where "big brother" constantly monitors every move, or the world of "Minority Report" where pre-cogs anticipate violent activity before it occurs and automated machines wielding eye-scanners sweep entire buildings in minutes looking for suspects. While some totalitarian regimes may have been authority, they lacked the capability to thwart all crime.
Since 1978 we have had a rudimentary regime for gathering counter-intelligence information related to activities of foreign powers that constitutes the beginnings of an interception-and-disruption paradigm. The Foreign Intelligence Surveillance Act (FISA) of 1978 authorizes surveillance of any employee of a foreign power without any indication of potential criminal activity. It further authorizes surveillance of any non-US citizen agent of a foreign power simply "when the circumstances of such person's presence in the United States indicate that such person may engage in [clandestine intelligence activities] in the United States." 50 U.S.C. ?1801. One indication of a post-911 shift toward interception-and-disruption has been the increased use of FISA surveillance tools in the domestic law enforcement arena, in contradistinction to reliance upon tools available within the traditional law enforcement paradigm - as well as the expansion of the FISA tools themselves.
A second feature of an interception-and-obstruction paradigm is that it supplements traditional criminal offenses with others that will permit conviction and incarceration for activities occurring well in advance of traditional criminal activity or attempts. Although government officials often wish to continue surveillance for a period of time in order to gain further intelligence on terrorist planning, on many occasions they will eventually want to disrupt those plans by incapacitating those involved. Unfortunately for such ambitions, the early stages of planning may not have included activities satisfying the elements of traditional crimes or even their attempts. One reason that the World War II Nazi saboteurs addressed by the Supreme Court in Ex Parte Quirin, 317 U.S. 1 (1942) were tried before a military tribunal rather than the civilian courts was the concern of the Attorney General that the captured Nazi agents had not yet committed any suitably serious federal offense warranting the severe punishment the government desired. Military tribunals, in contrast, could try and sentence individuals for violations of the laws of war, which included the spying activities in which the saboteurs had engaged. In similar fashion, an interception-and-disruption paradigm will supplement expanded surveillance powers with new crimes or expanded definitions of crimes, in order to be able to prosecute on the basis of actions taken well before a terrorist organization is ready to strike.
Recent changes in law, policy and priorities since 9/11 suggest that there has been a paradigm shift in the direction of interception and obstruction. One notable example is the development of an increasingly expansive criminalization of providing material support to terrorist organizations. See United States v. Lindh, 212 F. Supp. 2d 541, 580 (E.D. Va. 2002) (determining that material support for a terrorist organization constitutes a crime of violence); see also United States v. Goba, 240 F. Supp. 2d 242, 249-50 (W.D.N.Y. 2003) (reaffirming the "crime of violence" reasoning found in Lindh.)
The USA PATRIOT Act (USA PATRIOT) is at the heart of any discussion of a shift toward interception-and-disruption, although other significant legal developments are occurring outside of the changes made by that Act. USA PATRIOT is a massive bill, passed by Congress soon after the events of 9/11. It contains ten titles and changes literally hundreds of provisions of the United States Code. Many of these provisions were based on initiatives favored by the Department of Justice for years, which is one reason the bill could be assembled so quickly after the events of 9/11. For one, the Act substantially expands the electronic surveillance authorities of the government. For another, the Act increases the prosecutorial tools of the government. Other provisions of USA PATRIOT work to streamline government functioning in ways that have only minor impacts on civil liberties. These include functional changes in law enforcement and foreign intelligence investigations. Some of these provisions are overdue alterations in the law enforcement authorities and powers which might be thought of as helping to "level the playing field between the good guys and the bad guys." See, Christopher Schroeder, Will the Sun Set on the Patriot Act?, Duke Law Magazine, Vol. 23 No. 1 pg.27 (2005.) Others address government powers only tangentially related to law enforcement if at all and include changes in money laundering regulations, border patrol rules, and immigration laws. The parts of the Act most often criticized are not these latter ones.
In addition to the passage of USA PATRIOT, various other pieces of legislation directly or tangentially affecting provisions of the original bill have been proposed including a 2002 legislative draft proposing substantial expansion of USA PATRIOT. Leaked to the media and dubbed "Patriot II" by its critics, this specific bill was never introduced to Congress in its entirety. Portions of it were eventually introduced as part of the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638 (2004). Dave Edden, Measure Expands Police Powers; Intelligence Bill Included Disputed Anti-Terror Moves, Washington Post, December 10, 2004 at A01. This sweeping law affects many of the areas addressed originally by the USA PATRIOT Act and includes, among other things, a key provision referred to as the "lone wolf" provision which allows government authorities to target those terrorists lacking specific ties to any established terrorist groups. In addition, several laws have been passed related to the appropriation of funds to carry out the explicit directives of USA PATRIOT. These laws also influence law in this area as they often place specific conditions on the expenditure of any funds. These laws include: Intelligence Authorization Act for Fiscal Year 2002, Pub. L. No. 107-108, 115 Stat. 1394 (2001); Department of Defense and Emergency Supplemental Appropriations for Recovery from and Response to Terrorist Attacks on the United States Act, 2002Pub. L. No. 107-117, 115 Stat. 2230 (2002); Fiscal 2002 Supplemental Appropriations Pub. L. No. 107-206, 116 Stat. 820 (2002); Emergency Wartime Supplemental Appropriations Act, 2003 Pub. L. No. 108 -11, 117 Stat. 559 (2003); Department of Homeland Security Appropriations Act, 2004 Pub. L. No. 108 -90, 117 Stat. 1137 (2003); Intelligence Authorization Act for Fiscal Year 2004 Pub. L. No. 108 P.L. 177, 117 Stat. 2599 (2003); Department of Homeland Security Appropriations Act, 2005 Pub. L. No. 108-334, 118 Stat. 1298 (2004).
By collecting and summarizing published court decisions, this web project seeks to inform discussion about the shift toward an interception-and-disruption model. So far,our highest Court has not analyzed the USA PATRIOT Act. What the Supreme Court has said generally on matters of civil liberty during times of perceived threats to national security is summarized briefly to set the stage for the rest of the project. Working through the post-9/11 issues has thus far been the work of the lower courts, district court judges bravely assuming the role of bulwarks defending our civil liberties, asking important questions about the true wisdom of portions of the Act and often refusing to uphold portions they conclude impermissibly infringe on civil liberties. Their decisions are summarized and organized as part of a discussion divided into seven categories. The summary material at the start of each category provides a synopsis of both the contents of the USA PATRIOT Act itself and an analysis of the various court decisions related to civil liberties.
The first category reviewed in the project concerns ways in which the government's surveillance powers are enhanced by the USA PATRIOT Act, often as requirements to disclose such surveillance to its targets are weakened or even prohibited. This category also encompasses the requirements that the government release reports related to its use of its USA PATRIOT Act powers. The second category catalogues the new laws and prosecutorial powers introduced by the USA PATRIOT Act and subsequent legislation. Some of these laws enhance or modify previous laws that fit within the traditional law enforcement paradigm. However, others criminalize terrorist behavior in ways consistent with the intercept-and-obstruct paradigm. The third category describes the ways in which money and personnel have been redirected toward anti-terrorism and surveillance efforts. The fourth category concerns how the USA PATRIOT Act and subsequent legislation seek to protect against infringements of civil liberties. In categories five and six, this project covers changes made to laws governing financial institutions and laws related to immigration and border patrols respectively.
Although the USA PATRIOT Act is the primary focus of this project and thus directs its organization, the project is broader in scope. The USA PATRIOT Act is often treated as the culprit for the nearly all the post-9/11 assault on civil liberties when in fact many of the more controversial recent governmental actions are not based on legal authorizations supplied by the Act. See, Christopher Schroeder, Will the Sun Set on the Patriot Act?, Duke Law Magazine, Vol. 23 No. 1, Spring 2005. For example, the Center of Constitutional Rights suggests that during the two months post 9/11 the federal government "admitted to detaining more than 1,100 immigrants, not one of whom ha[d] been charged with committing a terrorist act and only a handful of whom [were] being held as material witnesses to the September 11 hijackings." Nancy Chang, The USA PATRIOT Act: What's so Patriotic about Trampling on the Bill of Rights?, at http://www.ccr-ny.org/v2/reports/docs/USA_PATRIOT_ACT.pdf. The USA PATRIOT Act does not authorize such activity, but it is certainly part of the landscape of civil liberty concerns that warrant fuller evaluation. To assess issues surrounding the Act, category seven focuses on civil liberties issues not directly implicated by USA PATRIOT.
Sixteen of the USA PATRIOT Act's provisions must be renewed or else their authority will sunset on December 31, 2005. President Bush has said he will veto anything less than a full Congressional renewal. Carl, Hulse, House Rejects One Provision of Patriot Act, N.Y. Times, June 16, 2005. In the meantime, the USA PATRIOT Act continues to spur criticism throughout the country. See Reauthorization of the USA PATRIOT Act Before the House Judiciary Comm., 109th Cong. (2005) (statement of Sen. John Conyers, Jr., Democrat, Michigan) (defending the Democratic plea for an evaluation of the PATRIOT Act in the House of Representatives); but see Reauthorization of the USA PATRIOT Act Before the House Judiciary Comm., 109th Cong. (2005) (statement of Sen. Daniel Lungren, Republican, California) (criticizing the Democrats' request for a hearing on the PATRIOT Act without allowing for witnesses from the administration to defend the Act). Resolutions against the PATRIOT Act have been passed in 379 communities in forty-three states, six of which have been state-wide, which totals fifty-seven million people against some or all part of the USA PATRIOT Act. Patriot Act Reauthorization Before the House Select Comm., 109th Cong. 20 (2005). The country is primed to debate the recently enacted changes to the law. We hope that this project will aid in that assessment by 1) summarizing these recent enactments and the case law they have prompted and 2) suggesting a framework for viewing such changes as an actual shift in the operative paradigm toward an interception-and-disruption model in the United States.
CATEGORY 0: Supreme Court Case Law on the Court’s General Approach to the Protection of Civil Liberties During Times of War
PART D: Physical Searches
PART E: Other Surveillance Provisions
PART F: Streamlining Surveillance Powers
CATEGORY 5: Enhancing Requirements Related to Financial Reporting and Financial Institution Cooperation with Law Enforcement
CATEGORY 7: Cases and Laws Outside of the Scope of the PATRIOT Act That Nonetheless Raise Civil Liberties Issues
PART C: Material Witnesses