The Patriot Act and Civil Liberties

Under the auspices of combating terror, the Bush administration took many steps following 9/11 that according to some have curtailed civil rights. Chief among these was the passage of the USA Patriot Act of 2001, which was signed by Bush on October 26, 2001. The original legislation contained 10 titles authorizing the government to conduct a wide range of activities aimed at preventing future terror attacks.

Title I contained provisions expanding funding for counterterrorism operations, allowing for military assistance in situations involving weapons of mass destruction, and expanding the president's authority to seize the assets of any "foreign person, foreign organization, or foreign country" found to have participated in an attack on the US. Title II increased the authority of intelligence agencies to conduct surveillance against suspected terrorists. Title III dealt with bank rules, counterfeiting and smuggling, with the intention of preventing money laundering and the financing of terror organizations. Title IV enhanced security on the US-Canadian border, prevented people who had been involved with organizations endorsing acts of terrorism from entering the US and requiring the detention of any foreign citizen in the US who is engaged in activities threatening national security. Title V authorized the use of National Security Letters requiring communications companies to comply with requests for subscriber information and billing records. Title VI provided aid to the families of police and firefighters killed during the 9/11 attacks. Title VII addressed information sharing intended to counter terror activities taking place across more than one jurisdiction. Title VIII addressed attacks on public transit systems, expanded the reach of prohibitions on biological weapons and criminalized the harboring or concealment of a person suspected of committing an act of terrorism. Title IX gave the head of the CIA increased responsibility and authority over foreign intelligence information. Title X contained miscellaneous provisions dealing with charity fraud, providing assistance to first responders and authorizing funds to the Drug Enforcement Agency to conduct police training in south and central Asia. Many of these provisions were originally set to expire at the end of 2005. However, at the urging of the Bush administration, Congress passed legislation extending most of these expiring provisions, which was signed by Bush in early 2006, with some being extended yet again in 2011.

The Patriot Act has been the cause of significant controversy since its passage. Among its earliest and most vocal critics has been the American Civil Liberties Union (ACLU), which has brought several lawsuits challenging the constitutionality of the legislation. In 2004, a judge for the US District Court for the Southern District of New York ruled that the section of the Patriot Act allowing authorities to demand financial records from companies in terrorism investigations was unconstitutional. The court concluded that the section bars any effective judicial challenge because the government does not need to show a compelling need for the information, and the act does not provide process for challenges to police action.

One of the most significant cases brought by civil rights groups, however, was Holder v. Humanitarian Law Project. In 2005, a judge for the US District Court for the Central District of California ruled that the provision of the act forbidding assistance to known terrorist organizations was overly vague, in violation of a 2004 ruling on the same provision. The lawsuit was filed by the Center for Constitutional Rights, which expressed concern about the possibility of the act being used to punish humanitarian aid workers in Sri Lanka or Turkey. This case was eventually heard by the US Supreme Court in June 2010. The court ruled 6-3 to uphold the constitutionality of the material support ban. The court held that it did not violate plaintiffs' First Amendment rights to free speech and association, nor was it unconstitutionally vague in violation of the Fifth Amendment. In support of the Fifth Amendment argument, the plaintiffs had alleged that the statute's prohibition of particular types of material support, such as training and expert advice, was unconstitutionally vague. In rejecting this, the court found that the terms of the list were not like terms that had been struck down previously by the court for having subjective and ambiguous meanings. In rejecting the plaintiffs' First Amendment claims, the court found that the statute did not criminalize the mere association with groups designated as terrorist organizations, and that even though in some instances the law interfered with free speech, this was "carefully drawn" to cover "an urgent objective of the highest order," the combating of terrorism.

In 2005, the ACLU filed suit in the US District Court for the District of Connecticut against US Attorney General Alberto Gonzales and FBI Director Robert Mueller challenging the constitutionality of the government's use of National Security Letters, which allow the FBI to demand a wide range of personal records of library patrons, including library records and the identities of public computer users, without suspecting the library user of any wrongdoing and preventing anyone in receipt of the subpoena from ever stating that the FBI made the demand. The federal court lifted the gag order, only to be overturned on appeal in the US Court of Appeals for the Second Circuit. Later, US Supreme Court Justice Ruth Bader Ginsburg rejected an emergency appeal seeking to overturn appellate decision.

In March 2006, Bush signed legislation renewing the Patriot Act, making several sunsetting provisions permanent, extending two provisions until 2009, and incorporating a number of new rights protections. Bush approved two separate bills: the Patriot Act Improvement and Reauthorization Act of 2005 and the Patriot Act Additional Reauthorizing Amendments Act of 2006, a series of amendments to the renewal legislation reflecting a compromise agreement to incorporate more civil liberties protections. Prior to reauthorization, JURIST Guest Columnist Susan Herman argued that the statutory scheme suffered from a "dangerous lack of balance," rendering it unconstitutional. JURIST Guest Columnist Wendy Keefer, on the other hand, argued that the reauthorized legislation achieved balance between security and civil liberties as well as among the branches of government.

Some of these alleged civil rights abuses have been acknowledged by the government. In March 2007, the DOJ apologized for illegal activities after a critical report on Patriot Act investigative practices revealed that the FBI broke and misused laws in the process of obtaining personal information from telephone companies, internet service providers, banks, credit bureaus and other business personal records. FBI Director Robert Mueller said that FBI agents had improperly used so-called "exigent letters," under which communication carriers, relying on the FBI's representation of "emergency situations," are directed to provide personal information with the expectation that grand jury subpoenas would follow. Following these admissions, JURIST Contributing Editor David Crane called for Mueller's resignation.

In September 2007, a judge for the US District Court for the District of Oregon ruled that two provisions of the act dealing with physical search and electronic eavesdropping were unconstitutional. Brandon Mayfield, an Oregon attorney, was arrested and detained for two weeks in May 2004 after the FBI mistakenly concluded that his fingerprints matched those found on a bag containing detonators used in the 2004 Madrid train bombings. Mayfield challenged the provisions which amended the Foreign Intelligence Surveillance Act and allowed investigators to search his home and office. The judge held that the search had violated Mayfield's Fourth Amendment rights against unreasonable search and seizure.

In May 2011, President Obama signed a four-year extension of the Patriot Act. The bill passed the US Senate 72-23, and shortly after passed the US House of Representatives by a vote of 250-153. Controversial provisions renewed include those allowing the government to use roving wiretaps on multiple carriers and electronic devices and allowing the government to gain access to certain records relevant to its investigations. The "lone wolf" provision enables investigators to get warrants to conduct surveillance over targets not connected to any particular terrorist group.


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