Talk:USA PATRIOT Act/Draft/Controversy

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[edit] Controversy

Main article: USA PATRIOT Act controversy

The Patriot Act has generated a great deal of controversy over the years. However, not all parts of the Act are seen in this light, with many parts being seen as benign by both detractors and supporters of the Act.^[1][2][3] Opponents of the Act, however, have been quite vocal in asserting that it was passed opportunistically after the September 11th terrorist attacks, believing there to have been little debate. They view the Act as one that was hurried through the Senate with little change before it was passed, even though Senators such as Patrick Leahy and Russell Feingold proposed amendments to modify the final revision.^[4][5][6] The sheer magnitude of the Act itself was noted by Michael Moore in his movie/documentary, Fahrenheit 9/11. In one of the scenes of the movie, he records Senator Jim McDermott alleging that no Senator read the bill^[7] and John Conyers Jr. as saying "We don't really read most of the bills. Do you know what that would entail if we read every bill that we passed?" Senator Conyers then answers his own rhetorical question, asserting that if they did it would "slow down the legislative process".^[8] As a dramatic device, Moore then hired an ice-cream van and drove around Washington DC with a loud speaker, reading out the Act to puzzled passers-by, which included a few Senators.^[9] Moore was not the only commentator to notice that not many people had read the Act. Dahlia Lithwick and Julia Turne for Slate asked "How bad is Patriot, anyway?". They decided that it was "[h]ard to tell." and that "[t]he ACLU, in a new fact sheet challenging the DOJ Web site, wants you to believe that the act threatens our most basic civil liberties. Ashcroft and his roadies call the changes in law "modest and incremental." Since almost nobody has read the legislation, much of what we think we know about it comes third-hand and spun. Both advocates and opponents are guilty of fear-mongering and distortion in some instances."^[10] A Gallop poll found that similar confusion existed in the minds of a portion of the American population. In August 2003 only 10% of people polled were "very familiar" with the Patriot Act, while 40% were "somewhat familiar", 25% were "not too familiar" and another 25% were "not at all familiar" with the Act. By January 2006 this had only risen to 17% who were "very familiar", 59% were "somewhat familiar", 18% who were "not too familiar" and 6% were "not at all familiar".^[11] Perhaps unsurprisingly, script writers for such television shows as NCIS and Las Vegas have been keen to use the Patriot Act as a plot device, often for purposes it was not intended.^[12][13]

Much of the controversy over the Act stems from changes to foreign intelligence surveillance law, National Security Letters, material support prohibitions and mandatory detention laws. Roving wiretaps, defined in section 206,^[14] were particularly controversial. Many commentators have objected to them, believing them to bypass the Fourth Amendment requirement that search warrants detail the place to be searched. EPIC have criticised the law as unconstitutional, especially when "the private communications of law-abiding American citizens might be intercepted incidentally",^[15] while the EFF hold that the lower standard applied to wiretaps "gives the FBI a 'blank check' to violate the communications privacy of countless innocent Americans".^[16] Others do not find the roving wiretap legislation to be as concerning. Professor David Cole of the Georgetown University Law Center, a critic of many of the provisions of the Act, found that though they come at a cost to privacy are a sensible measure^[17] while Paul Rosenzweig, a Senior Legal Research Fellow in the Center for Legal and Judicial Studies at the Heritage Foundation, argues that roving wiretaps are just a response to rapidly changing communication technology that is not necessarily fixed to a specific location or device.^[18]

The Act also allows access to voicemail through a search warrant rather than through the a title III wiretap order.^[19] James Dempsey, of the CDT, believes that it unnecessarily overlooks the importance of notice under the Fourth Amendment and under a Title III wiretap^[20], while the EFF also criticise the provision's lack of notice, but also go further and say that "is in possible violation of the Fourth Amendment to the U.S. Constitution" because previously if the FBI listened to voicemail illegally, it couldn't use the messages in evidence against the defendant.^[21] Others disagree with this assessment. Professor Orin Kerr, of the George Washington University school of law, believes that the ECPA "adopted a rather strange rule to regulate voicemail stored with service providers" because "under ECPA, if the government knew that there was one copy of an unopened private message in a person's bedroom and another copy on their remotely stored voicemail, it was illegal for the FBI to simply obtain the voicemail; the law actually compelled the police to invade the home and rifle through peoples' bedrooms so as not to disturb the more private voicemail." In Professor Kerr's opinion, this made little sense and the amendment that was made by the Patriot Act was reasonable and sensible.^[22]

The Patriot Act's expansion of court jurisdiction to allow the nationwide service of search warrants proved controversial for the EFF.^[23] They believe that agencies will be able to "'shop' for judges that have demonstrated a strong bias toward law enforcement with regard to search warrants, using only those judges least likely to say no—even if the warrant doesn't satisfy the strict requirements of the Fourth Amendment to the Constitution",^[24] and that it reduces the likelihood that smaller ISPs or phone companies will try to protect the privacy of their clients by challenging the warrant in court — their reasoning is that "a small San Francisco ISP served with such a warrant is unlikely to have the resources to appear before the New York court that issued it."^[24] They believe that this is bad because only the communications provider will be able to challenge the warrant as only they will know about it—many warrants are issued ex parte, which means that the party it is made out against will not need to be present when the order is issued.^[24]

For a time, the Patriot Act allowed for agents to undertake "sneak and peek" searches.^[25] Critics such as EPIC and the ACLU strongly criticized the law for violating the Fourth Amendment,^[26] with the ACLU going so far as to release an advertisement condemning it and calling for it to be repealed.^[27][28] However supporters of the amendment, such as Heather MacDonald, a fellow at the Manhattan Institute and contributing editor to the New York City Journal, expressed the belief that it was necessary because the temporary delay in notification of a search order stops terrorists from tipping off their counterparts who are being investigated.^[29] In 2004 FBI agents used this provision to search and secretly examine the home of Brandon Mayfield, who was wrongfully jailed for two weeks on suspicion of involvement in the Madrid train bombings. Whilst the U.S. Government publicly apologised to Mr. Mayfield and his family^[30] Mr. Mayfield took it further through the courts. On September 26th, 2007 judge Ann Aiken found the law was, in fact, unconstitutional as the search was an unreasonable imposition on Mr. Mayfield and thus violated the Fourth Amendment.^[31][32]

Laws governing the material support of terrorism proved contentious. It was criticised by the EFF for infringing of freedom of association. The EFF argues that had this law been enacted during Apartheid, U.S. citizens would not have been able to support the African National Congress (ANC) as the EFF believe the ANC would have been classed as a terrorist organisation. They also used the example of a humanitarian social worker being unable to train Hamas members how to care for civilian children orphaned in the conflict between Israelis and Palestinians, a lawyer would not be able to teach IRA members about international law, or peace workers would not be able to offer training in effective peace negotiations or how to petition the United Nations regarding human rights abuses.^[33] Another group, the Humanitarian Law Project, also objected to the provision prohibiting "expert advise and assistance" to terrorists and filed a suit against the U.S. government to have it declared unconstitutional. They succeeded, and a Federal Court found that the law was vague enough to cause a reasonable person to guess whether they were breaking the law or not. Thus they found it violated the First Amendment rights of U.S. citizens, and struck it down.^[34][35]

Perhaps one of the most controversial parts of the legislation were the National Security Letter (NSL) provisions. Because they allow the FBI to search telephone, email, and financial records without a court order they were criticized by many parties.^{[36][37][38][39]} In November 2005, Business Week reported that the FBI had issued tens of thousands of NSLs and had obtained one million financial, credit, employment, and in some cases, health records from the customers of targeted Las Vegas businesses. Selected businesses included casinos, storage warehouses and car rental agencies. An anonymous Justice official claimed that such requests were permitted under section 505 of the USA PATRIOT Act and despite the volume of requests insisted "We are not inclined to ask courts to endorse fishing expeditions". ^[40] Before this was revealed, however, the ACLU challenged the constitutionality of NSLs in court. In April 2004 they filed suit against the government on behalf of an unknown Internet Service Provider who had been issued an NSL, for reasons unknown. In ACLU v. DoJ, the ACLU argued that the NSL violated the First and Fourth Amendments of the US Constitution because the Patriot Act failed to spell out any legal process whereby a telephone or Internet company could try to oppose an NSL subpoena in court. The court agreed, and found that because the recipient of the subpoena could not challenge it in court it was unconstitutional.^[41] Congress later tried to remedy this in a reauthorization Act, but because they did not remove the non-disclosure provision a Federal court again found NSLs to be unconstitutional because they prevented courts from engaging in meaningful judicial review.^[42][43][44]

Another provision of the Patriot Act brought a great deal of consternation amongst librarians. Section 215 allows the FBI to apply for an order to produce materials that assist in an investigation undertaken to protect against international terrorism or clandestine intelligence activities. Amongst the "tangible things" that could be targetted, it includes "books, records, papers, documents, and other items".^[45] Supporters of the provision point out that these records are held by third-parties, and therefore are exempt from a citizen's reasonable expectations of privacy and also maintain that the FBI has not abused the provision.^[46] As proof, then Attorney General John Aschroft released information ini 2003 that showed that section 215 orders had never been used.^[47] However, despite protestations to the contrary, the American Library Association strongly objected to the provision, believing that library records are fundamentally different to ordinary business records, and that the provision would have a chilling effect on free speech. The association became so concerned that they formed a resolution condeming the Patriot Act, and which urged members to defend free speech and protect patron's privacy.^[48] They urged librarians to seek legal advise before complying with a search order and advised their members to only keeping records for as long as was legally needed.^[49] Consequently, reports started filtering in that librarians were shredding records to avoid having to comply with such orders.^[50][51][52] This stance was criticised by Heather Mac Donald, who opined that "[t]he furore over section 215 is a case study in Patriot Act fear-mongering."^[53]

Another controversial aspect of the Patriot Act is the immigration provisions that allow for the indefinite detention of any alien whom the Attorney General believes may cause a terrorist act.^[54] Before the Patriot Act was passed, Anita Ramasastry, an associate professor of law and a director of the Shidler Center for Law, Commerce, & Technology at the University of Washington School of Law in Seattle, Washington, accused the Act of depriving basic rights for immigrants to America, including legal permanent residents. She warned that "Indefinite detention upon secret evidence — which the Patriot Act allows — sounds more like Taliban justice than ours. Our claim that we are attempting to build an international coalition against terrorism will be severely undermined if we pass legislation allowing even citizens of our allies to be incarcerated without basic U.S. guarantees of fairness and justice."^[55] Many other parties have also been strongly critical of the provision. Russell Feingold, in a Senate floor statement, claimed that the provision "falls short of meeting even basic constitutional standards of due process and fairness [as it] continues to allow the Attorney General to detain persons based on mere suspicion".^[56] The University of California^[57], while the ACLU has accused the Act of giving the Attorney General "unprecedented new power to determine the fate of immigrants... Worse, if the foreigner does not have a country that will accept them, they can be detained indefinitely without trial."^[58]

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