America’s Unpatriotic Act

by Walter Brasch

Supported by a nation encrusted in fear, George W. Bush signed the USA PATRIOT Act, the cutesy acronym for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act.

But there isn’t anything cute about this legislation. The PATRIOT Act expands the government’s surveillance powers to permit almost unrestricted information-gathering while reducing the oversight function of the courts. Certain sections threaten Americans’ civil liberties while doing little to protect the safety of the nation.

The PATRIOT Act grants the FBI almost unlimited and unchecked access to “any tangible things (including books, records, papers, documents, and other items)” from individuals or companies without requiring them to show even minimal evidence of a crime, and places a “chilling effect” upon free speech (Section 215). The Act’s sweeping provisions apply not only to homes, businesses, and newsrooms, but also to synagogues, churches, mosques, and other places of religious worship. Under provisions of the PATRIOT Act, the federal government can require libraries to divulge who uses public computers and what information they were seeking, bookstores to reveal who bought which books, video stores to reveal what videotapes customers bought or rented, even grocery and drug stores to disclose what paperbacks or magazines shoppers bought. The “courtesy cards” that major retailers issue to their customers to give them check cashing privileges and certain discounts, that libraries and bookstores use to track loans and purchases, reveals every transaction. Amazon.com and America Online (AOL), for instance, each have a database of several million names, with numerous identifying characteristics per name, all accessible under the PATRIOT Act. Every bit of data about every citizen is now available to every federal agency. The Fourth Amendment’s provision about the rights of privacy has now been shredded in our mass hysteria.

The PATRIOT Act reduces judicial oversight of telephone and Internet surveillance. Federal law enforcement agencies aren’t required to determine if a suspect uses or is likely to use a phone before planting a “bug.” Under Sections 214 and 216, the federal government is also authorized to sweep the records of Internet Service Providers (ISPs) and network administrators in both private and public sectors, and may monitor and intercept e-mail and cell phone usage without first being required either to have a court order or to report such activities to judicial oversight.

For almost the entire history of the United States, under provisions of the Fourth Amendment, the courts demanded that law enforcement, with very few exceptions, “knock and announce” their presence to execute a warrant. Part of that reason is to allow citizens to notify their attorneys, point out irregularities in the warrants (such as a wrong address), or to oversee that the limits of the warrant are not exceeded. The PATRIOT Act lowers the standard of proof for a warrant from “probable cause” to the nebulous “reasonable cause” (Section 218).
Under provisions of Section 505, the Department of Justice has the authority to use National Security Letters (NSLs), essentially administrative subpoenas without judicial oversight. U. S. Code (18 U.S.C. §2709) permits use of such letters, but the PATRIOT Act significantly expands and loosens the requirements. NSLs may be issued against “electronic communication service providers” to disclose information about individuals, including content of their communications. The FBI no longer needs to have the name of an individual or even specific facts of a case. There is no judicial oversight; there is no provision for any challenge, and the persons who are served such letters are forbidden by law from disclosing that they were served such letters; they may not even talk with an attorney. Under the PATRIOT Act, the government may require companies to surrender confidential information about their employ-ees or customers, even if they are not suspected of any crime—and are gagged from disclosing any contact by the government. [By the end of 2005, the ACLU estimated that the FBI was issuing about 30,000 NSLs a year; prior to the PATRIOT Act, which loosened restrictions, the FBI issued only about 300 a year.]

The PATRIOT Act allows secret searches and seizure of an individual’s property without notifying that person (Section 806); and “sneak-and-peek” searches (Section 213) without notifying the citizen, to allow a search of the premises while the subjects are away, and not tell the individual of the government’s intrusion upon home or office—or upon an innocent second party who may have been a friend of the store manager of a second cousin of the suspect. The search can be not just for investigation of potential terrorism cases but also for “any criminal investigation.” That “criminal investigation” doesn’t have to be terrorist-related; it can be for any activity, from murder to running a red light.
The PATRIOT Act further gives the government authority to indefinitely imprison legal immigrants and noncitizens without showing any court probable cause that they are terrorists or suspected of aiding others who are terrorists, and doesn’t give the accused the right to challenge the government’s assertions (Section 412); and expands the definition of terrorism to allow labeling political dissenters as terrorists (Sections 411 and 802).

The base of the PATRIOT Act is three separate acts—the For-eign Intelligence Surveillance Act of 1978 (FISA), passed during the Cold War at a time when there had been increased worldwide terrorism, especially in the Middle East; the Antiterrorism and Effective Death Penalty Act, passed in 1996; and a massive overreaching bill that same year that did not meet Congressional approval. Much of FISA wasn’t controversial, its provisions written to assist law enforcement without violating civil liberties. Much of the PATRIOT Act also isn’t controversial. Some of it is purely administrative. It allows expenditure of funds for government offices involved in pursuing terrorists, permits federal law enforcement to hire more translators, and reinforces federal law against discrimination. But, a couple of dozen sections threaten civil liberties; it is those sections that make the entire PATRIOT Act a piece of bad legislation.

Attorney General John Ashcroft claims the Department of Justice needs the new law to deal with terrorism. However, prosecutors, from small towns to the federal government, already have legal and constitutional authority to pursue anyone they believe is either knowledgeable about a crime or had committed a crime. The new law is merely a way for the federal government to shortcut innumerous constitutional guarantees, including the rights of due process.

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