The Patriot Act revisited
Overview
This law provides for indefinite imprisonment without trial of non-U.S. citizens whom the Attorney General has determined to be a threat to national security. The government is not required to provide detainees with counsel, nor is it required to make any announcement or statement regarding the arrest. The law allows a wiretap to be issued against an individual instead of a specific telephone number. It permits law enforcement agencies to obtain a warrant and search a residence without immediately informing the occupants, if the Attorney General has determined this to be an issue of national security. The act also allows intelligence gathering at religious events. With a few exceptions, provisions of the act are due to expire on December 31, 2005.
There has been strong criticism of the act on the grounds that parts of it violate the Constitution and endanger civil liberties. The American Civil Liberties Union (ACLU) alleges that its search and detention provisions violate the Fourth Amendment. Some say that the act's secret warrants resemble the general warrants which were one reason the colonists fought the American Revolutionary War.
Critics also say the law was passed without serious review in a climate of fear, and that it represents a reactionary agenda that has little to do with the 9/11 attacks. They note that there were unsuccessful attempts to pass similar laws, such as the Methamphetamine Anti-Proliferation Act of 2000, long before 9/11.
Supporters of the law argue that terrorist acts may result in the loss of thousands or millions of lives, so waiting until after the fact to hunt the perpetrators down would be a deadly mistake. They admit that the law may result in some rights abuses, but argue that the most basic civil right is the right to live without perpetual fear. They further argue that, unless the Supreme Court rules otherwise, the law is constitutional. However, since the Supreme Court does not seek out laws to countermand, the constitutionality of the Patriot Act must remain a question until someone brings the dispute before the court.
All of the candidates for the Democratic Party nomination for the U.S. presidential election, 2004 have criticized Attorney General John Ashcroft's use of the act. Among them, Ohio Congressman Dennis J. Kucinich voted against its passage in the House of Representatives.
Four states (Hawaii, Alaska, Maine and Vermont) and 331 cities (including New York City, Los Angeles, Dallas, Chicago, Eugene, Oregon, Philadelphia, Pennsylvania and Cambridge, Massachusetts) have passed resolutions condemning the USA PATRIOT Act for attacking civil liberties. Arcata, California is the first city to pass an ordinance that bars city employees (including police and librarians) from assisting or cooperating with any federal investigations under the USA PATRIOT Act that would violate civil liberties. The Bill of Rights Defense Committee is helping coordinate local efforts to pass resolutions. Pundits question the validity of these ordinances, noting that under the Constitution's supremacy clause, federal law overrides state and local laws.
The act is 342 pages long and amends over fifteen statutes. The following summarizes the new powers granted by the law:
* Sec. 104: Allows the Department of Defense to share information with the Department of Justice during "emergency situations" that involve "weapons of mass destruction."
* Sec. 106: Allows the President of the United States to seize property belonging to foreign nationals connected with terrorism. If the seizure is based on classified evidence, then the judge reviewing the case cannot share that evidence with the defense attorneys.
* Sec. 203: Allows information collected by the police or presented to a Federal grand jury to be shared with intelligence agencies. This information sharing is limited to evidence of terrorist activities. (Section 203(a)&(b) doesn't sunset/expire).
* Sec. 206: Allows a wiretap to be granted against an individual, instead of a particular phone. Previously, for example, if a person had a cell phone, a home phone, and an office phone, the government had to obtain separate warrants on each.
* Sec. 207: Increases the duration of a wiretap "permitted for non-U.S. persons who are agents of a foreign power."
* Sec. 208: Increases (from seven to 11) the number of district court judges designated to hear applications for and grant orders approving electronic surveillance. (Section 208 doesn't sunset/expire).
* Sec. 209: Permits the seizure of voice-mail messages under a warrant.
* Sec. 213: Allows FBI agents to conduct a search of a business or a place without notifying the owner that the search has been conducted until later. The agents still need a warrant, and only a Federal district court judge can issue this type of warrant. Further, this type of warrant may only be issued if notifying the owner of the search would result in "adverse consequences." (Section 213 doesn't sunset/expire).
* Sec. 216: "PEN/Trap Authority." Allows law-enforcement in ordinary criminal cases to get a warrant to track which websites a person visits and collect general information about the emails a person sends and receives. Law-enforcement doesn't have to prove the need; the judge only has to determine that law-enforcement has "certified" that this relates to an ongoing investigation. In other words, the judge cannot reject an application based on the merits. Furthermore, people not-named in the warrant can be subject to the warrant if law-enforcement "certifies" that the warrant was meant to apply to those unnamed people. (Section 216 doesn't sunset/expire).
* Sec. 217: Allows the government to intercept the electronic communication of a computer trespasser, i.e., a hacker, without a court order in certain circumstances if the owner of the hacked computer consents.
* Sec. 402: Triples the number of Border Patrol, Customs Service, and INS personnel stationed along the U.S. borders.
* Sec. 411: Expands the definition of a terrorist for the purpose of the act. Summary of Sec. 411 of the USA PATRIOT Act.
* Before passage, only members of the groups designated as terrorist organizations by the State Department could be denied entry to or deported from the United States
* The law extends those actions to any foreigner who publicly endorses terrorist activity, belongs to a group that does, or provides support to a group that does.
* The definition of "terrorist activity" is extended to include any foreigner who uses "dangerous devices" or raises money for a terrorist group, if that person knows or reasonably should have known that the group is engaged in terrorism
* Sec. 412: Extends the power of the attorney general to detain aliens.
* The attorney general can order the detention of any aliens if he certifies that he has "reasonable grounds to believe" involvement in terrorism or activity that poses a danger to national security. He does not need to explain his reasoning or show evidence.
* Criminal or immigration violation charges have to be brought against such people within seven days, but they can be held indefinitely.
* However, they retain their right to petition the U.S. Supreme Court, the U.S. Court of Appeals for the District of Columbia, or any district court with jurisdiction to entertain a habeas corpus petition.
* Sec. 416: Directs the Attorney General to implement fully and expand the foreign student monitoring program to include other approved educational institutions like air flight, language training, or vocational schools.
* Sec. 503: Requires DNA samples of convicted terrorists to be collected and added to a DNA database of violent convicts.
* Sec. 805(a)(2): Expands the definition of 'material support' to foreign terrorist organizations to include 'expert advice and assistance'. According to an article in Reason magazine, this section has been cited by Assistant US Attorney Christopher Morvillo and by Assistant US Attorney Robin Baker as grounds for prosecuting a US lawyer who defends a terror suspect. Critics suggest that this amounts to state intimidation of defence counsel, likely to undermine the constitutionally protected due process right to counsel.
* Sec. 814: allows wiretaps for suspected violations of the Computer Fraud and Abuse Act, including anyone suspected of "exceeding the authority" of a computer used in interstate commerce, causing over $5000 worth of combined damage.
Opponents and supporters of the law make claims and counterclaims:
* Critics state that the PEN/Trap Authority to track Internet usage in non-terrorism cases is an invasion of privacy, and that judges should be able to reject an application for such a warrant on the merits. Judges shouldn't be forced to rubber-stamp applications for warrants to track whom a person emails and which websites the person visits. Critics would further state that the websites a person visits have a more tenuous link to the activities a person does. An example would be a person hears about a book called the Anarchist Cookbook and searches the web for it. This is markedly different than a person talking on the phone with other people about how to obtain the materials needed to make something nefarious.
* Supporters reply that law-enforcement has long had analogous authority to get a list of phone numbers a person has called merely by claiming that it relates to an ongoing investigation, and for law-enforcement to be able to track which websites a person visits and whom a person emails or receives email from is modernization.
* Critics state that the law expands the powers under the Foreign Intelligence Surveillance Act (FISA) to spy on Americans or foreign persons in the US (and those who communicate with them), and that it expands the authority of the Foreign Intelligence Surveillance Act, from the situations where the suspicion that the person is the agent of a foreign government is "the" purpose of the surveillance to any time that this is "a significant purpose" of the surveillance.
* Supporters reply that FISA surveillance under the new law is permitted only for non-U.S. persons. While a FISA wiretap may pick up the conversation of an American citizen when he is talking to a foreigner, FISA still cannot be specifically be used to "spy" on individual American citizens, and it is not wrong to have a higher standard of rights for American citizens as opposed to guests of the country. Finally, agents of Al-Qaeda are not "agents of a foreign government," and that FISA needed to be amended in a time where stateless terrorist conspiracies can murder thousands of people wholesale.
* Critics state that the law allows increased information sharing between domestic law enforcement and intelligence, repealing some of the barriers put up in the 1970s after the discovery that the FBI and CIA had been conducting joint investigations on over half a million Americans during the McCarthy era and afterwards, including Martin Luther King Jr. It allows wiretap results and grand jury information and other information collected in a criminal case to be disclosed to the intelligence agencies when the information constitutes foreign intelligence or foreign intelligence information, the latter being a broad new category created by this law.
* Supporters reply that the failure of inter-agency information sharing has led to disasters in recent decades, including the failure to locate known terrorists in the past and to shut down alien smuggling and underground slavery rings.
The USA PATRIOT Act is not why the American citizens Jose Padilla and Yaser Kemal are being held; they are being held as enemy combatants, a term from the World War II era. The U.S. government is relying on a 1942 Supreme Court decision, Ex parte Quirin, to hold them indefinitely, without being able to meet with attorneys, friends, or family.
A government report has found that secret searches in the U.S. are up 85% since 2001. [1] (http://www.baltimoresun.com/news/nationworld/bal-te.patriot02may02,0,3416237.story?coll=bal-nationworld-headlines)
This law provides for indefinite imprisonment without trial of non-U.S. citizens whom the Attorney General has determined to be a threat to national security. The government is not required to provide detainees with counsel, nor is it required to make any announcement or statement regarding the arrest. The law allows a wiretap to be issued against an individual instead of a specific telephone number. It permits law enforcement agencies to obtain a warrant and search a residence without immediately informing the occupants, if the Attorney General has determined this to be an issue of national security. The act also allows intelligence gathering at religious events. With a few exceptions, provisions of the act are due to expire on December 31, 2005.
There has been strong criticism of the act on the grounds that parts of it violate the Constitution and endanger civil liberties. The American Civil Liberties Union (ACLU) alleges that its search and detention provisions violate the Fourth Amendment. Some say that the act's secret warrants resemble the general warrants which were one reason the colonists fought the American Revolutionary War.
Critics also say the law was passed without serious review in a climate of fear, and that it represents a reactionary agenda that has little to do with the 9/11 attacks. They note that there were unsuccessful attempts to pass similar laws, such as the Methamphetamine Anti-Proliferation Act of 2000, long before 9/11.
Supporters of the law argue that terrorist acts may result in the loss of thousands or millions of lives, so waiting until after the fact to hunt the perpetrators down would be a deadly mistake. They admit that the law may result in some rights abuses, but argue that the most basic civil right is the right to live without perpetual fear. They further argue that, unless the Supreme Court rules otherwise, the law is constitutional. However, since the Supreme Court does not seek out laws to countermand, the constitutionality of the Patriot Act must remain a question until someone brings the dispute before the court.
All of the candidates for the Democratic Party nomination for the U.S. presidential election, 2004 have criticized Attorney General John Ashcroft's use of the act. Among them, Ohio Congressman Dennis J. Kucinich voted against its passage in the House of Representatives.
Four states (Hawaii, Alaska, Maine and Vermont) and 331 cities (including New York City, Los Angeles, Dallas, Chicago, Eugene, Oregon, Philadelphia, Pennsylvania and Cambridge, Massachusetts) have passed resolutions condemning the USA PATRIOT Act for attacking civil liberties. Arcata, California is the first city to pass an ordinance that bars city employees (including police and librarians) from assisting or cooperating with any federal investigations under the USA PATRIOT Act that would violate civil liberties. The Bill of Rights Defense Committee is helping coordinate local efforts to pass resolutions. Pundits question the validity of these ordinances, noting that under the Constitution's supremacy clause, federal law overrides state and local laws.
The act is 342 pages long and amends over fifteen statutes. The following summarizes the new powers granted by the law:
* Sec. 104: Allows the Department of Defense to share information with the Department of Justice during "emergency situations" that involve "weapons of mass destruction."
* Sec. 106: Allows the President of the United States to seize property belonging to foreign nationals connected with terrorism. If the seizure is based on classified evidence, then the judge reviewing the case cannot share that evidence with the defense attorneys.
* Sec. 203: Allows information collected by the police or presented to a Federal grand jury to be shared with intelligence agencies. This information sharing is limited to evidence of terrorist activities. (Section 203(a)&(b) doesn't sunset/expire).
* Sec. 206: Allows a wiretap to be granted against an individual, instead of a particular phone. Previously, for example, if a person had a cell phone, a home phone, and an office phone, the government had to obtain separate warrants on each.
* Sec. 207: Increases the duration of a wiretap "permitted for non-U.S. persons who are agents of a foreign power."
* Sec. 208: Increases (from seven to 11) the number of district court judges designated to hear applications for and grant orders approving electronic surveillance. (Section 208 doesn't sunset/expire).
* Sec. 209: Permits the seizure of voice-mail messages under a warrant.
* Sec. 213: Allows FBI agents to conduct a search of a business or a place without notifying the owner that the search has been conducted until later. The agents still need a warrant, and only a Federal district court judge can issue this type of warrant. Further, this type of warrant may only be issued if notifying the owner of the search would result in "adverse consequences." (Section 213 doesn't sunset/expire).
* Sec. 216: "PEN/Trap Authority." Allows law-enforcement in ordinary criminal cases to get a warrant to track which websites a person visits and collect general information about the emails a person sends and receives. Law-enforcement doesn't have to prove the need; the judge only has to determine that law-enforcement has "certified" that this relates to an ongoing investigation. In other words, the judge cannot reject an application based on the merits. Furthermore, people not-named in the warrant can be subject to the warrant if law-enforcement "certifies" that the warrant was meant to apply to those unnamed people. (Section 216 doesn't sunset/expire).
* Sec. 217: Allows the government to intercept the electronic communication of a computer trespasser, i.e., a hacker, without a court order in certain circumstances if the owner of the hacked computer consents.
* Sec. 402: Triples the number of Border Patrol, Customs Service, and INS personnel stationed along the U.S. borders.
* Sec. 411: Expands the definition of a terrorist for the purpose of the act. Summary of Sec. 411 of the USA PATRIOT Act.
* Before passage, only members of the groups designated as terrorist organizations by the State Department could be denied entry to or deported from the United States
* The law extends those actions to any foreigner who publicly endorses terrorist activity, belongs to a group that does, or provides support to a group that does.
* The definition of "terrorist activity" is extended to include any foreigner who uses "dangerous devices" or raises money for a terrorist group, if that person knows or reasonably should have known that the group is engaged in terrorism
* Sec. 412: Extends the power of the attorney general to detain aliens.
* The attorney general can order the detention of any aliens if he certifies that he has "reasonable grounds to believe" involvement in terrorism or activity that poses a danger to national security. He does not need to explain his reasoning or show evidence.
* Criminal or immigration violation charges have to be brought against such people within seven days, but they can be held indefinitely.
* However, they retain their right to petition the U.S. Supreme Court, the U.S. Court of Appeals for the District of Columbia, or any district court with jurisdiction to entertain a habeas corpus petition.
* Sec. 416: Directs the Attorney General to implement fully and expand the foreign student monitoring program to include other approved educational institutions like air flight, language training, or vocational schools.
* Sec. 503: Requires DNA samples of convicted terrorists to be collected and added to a DNA database of violent convicts.
* Sec. 805(a)(2): Expands the definition of 'material support' to foreign terrorist organizations to include 'expert advice and assistance'. According to an article in Reason magazine, this section has been cited by Assistant US Attorney Christopher Morvillo and by Assistant US Attorney Robin Baker as grounds for prosecuting a US lawyer who defends a terror suspect. Critics suggest that this amounts to state intimidation of defence counsel, likely to undermine the constitutionally protected due process right to counsel.
* Sec. 814: allows wiretaps for suspected violations of the Computer Fraud and Abuse Act, including anyone suspected of "exceeding the authority" of a computer used in interstate commerce, causing over $5000 worth of combined damage.
Opponents and supporters of the law make claims and counterclaims:
* Critics state that the PEN/Trap Authority to track Internet usage in non-terrorism cases is an invasion of privacy, and that judges should be able to reject an application for such a warrant on the merits. Judges shouldn't be forced to rubber-stamp applications for warrants to track whom a person emails and which websites the person visits. Critics would further state that the websites a person visits have a more tenuous link to the activities a person does. An example would be a person hears about a book called the Anarchist Cookbook and searches the web for it. This is markedly different than a person talking on the phone with other people about how to obtain the materials needed to make something nefarious.
* Supporters reply that law-enforcement has long had analogous authority to get a list of phone numbers a person has called merely by claiming that it relates to an ongoing investigation, and for law-enforcement to be able to track which websites a person visits and whom a person emails or receives email from is modernization.
* Critics state that the law expands the powers under the Foreign Intelligence Surveillance Act (FISA) to spy on Americans or foreign persons in the US (and those who communicate with them), and that it expands the authority of the Foreign Intelligence Surveillance Act, from the situations where the suspicion that the person is the agent of a foreign government is "the" purpose of the surveillance to any time that this is "a significant purpose" of the surveillance.
* Supporters reply that FISA surveillance under the new law is permitted only for non-U.S. persons. While a FISA wiretap may pick up the conversation of an American citizen when he is talking to a foreigner, FISA still cannot be specifically be used to "spy" on individual American citizens, and it is not wrong to have a higher standard of rights for American citizens as opposed to guests of the country. Finally, agents of Al-Qaeda are not "agents of a foreign government," and that FISA needed to be amended in a time where stateless terrorist conspiracies can murder thousands of people wholesale.
* Critics state that the law allows increased information sharing between domestic law enforcement and intelligence, repealing some of the barriers put up in the 1970s after the discovery that the FBI and CIA had been conducting joint investigations on over half a million Americans during the McCarthy era and afterwards, including Martin Luther King Jr. It allows wiretap results and grand jury information and other information collected in a criminal case to be disclosed to the intelligence agencies when the information constitutes foreign intelligence or foreign intelligence information, the latter being a broad new category created by this law.
* Supporters reply that the failure of inter-agency information sharing has led to disasters in recent decades, including the failure to locate known terrorists in the past and to shut down alien smuggling and underground slavery rings.
The USA PATRIOT Act is not why the American citizens Jose Padilla and Yaser Kemal are being held; they are being held as enemy combatants, a term from the World War II era. The U.S. government is relying on a 1942 Supreme Court decision, Ex parte Quirin, to hold them indefinitely, without being able to meet with attorneys, friends, or family.
A government report has found that secret searches in the U.S. are up 85% since 2001. [1] (http://www.baltimoresun.com/news/nationworld/bal-te.patriot02may02,0,3416237.story?coll=bal-nationworld-headlines)
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