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The Patriot Act: a Constitutional Analysis

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The Patriot Act: A Constitutional Analysis
Andrew Mills
University of Memphis

“The USA Patriot Act, enacted seven weeks after the September 11 attacks, granted the federal government sweeping new powers to expand surveillance, curtail financing, and deport aliens in connection with terrorist activity” (Stanford, 2003). This quote embodies the reasons for the heated controversy surrounding the Patriot Act. Whether one discusses the brief period of time leading up to the signing of the Patriot Act or the numerous provisions that resulted from the passing of this bill, individuals will likely have clashing viewpoints. The vast majority of the controversies surrounding the act involves whether or not it falls in line with the U.S. Constitution. Opponents of the act argue that it should have never passed through Congress due to its unconstitutionality. Those who support the Patriot Act often use its success in fighting terrorist threats as a reason to maintain it. After analyzing the bill and its provisions, its successes were made apparent, as well as its unconstitutionality.

The Patriot Act: A Constitutional Analysis The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, commonly known as the USA Patriot Act (USAPA), was signed into law during one of the most distressing periods in American history. Its hasty introduction spawned controversy across a variety of political spectrums. Concerns regarding the constitutionality of this act have caused many to oppose the act and call for its annulment. On the other hand, many individuals argue in favor of the act due to its successes. In order to formulate an experienced opinion on the Patriot Act, its history and the circumstances surrounding its creation must first be investigated.
History of the USAPA The terrorist attacks that occurred on September 11, 2001 plunged the American people into a state of panic and fear. It was the deadliest attack to have ever occurred on American soil. The American people expected the Federal Government to immediately take a course of action to counter the terrorist attacks. Not only did the Government initiate the War on Terror in Afghanistan, but it also focused on domestic terror threats by passing the USAPA. On October 26, 2001, having been easily passed in the House of Representatives and the Senate, President George W. Bush signed the act into law. The bill was passed only a month and a half after the terrorist attacks. Kettl (2004) articulates that, “… it [the bill] completed its work in near-record time” (p. 96). The hasty passing of the USAPA seemed necessary to most Americans, as they felt the need for an immediate response. As time has passed, though, opposition to the bill has steadily grown. The objectives of the bill and the circumstances surrounding its hasty passing must be studied to pinpoint the reasons for such opposition.

Objectives of the USAPA The USAPA’s main objective was to improve national security in the wake of 9/11. As stated by Schemmel (2003), “The primary stated purposes of the USA PATRIOT Act are to ‘deter and punish terrorist acts in the United States and around the world [and] to enhance law enforcement investigatory tools ...’” The USAPA accomplished this in a series of ten titles, as demonstrated in Table 1. Titles of the USA Patriot Act
Titles of the USA Patriot Act
Table 1 Title | Description | Title I | Enhancing domestic security against terrorism | Title II | Enhanced surveillance procedures | Title III | International Money Laundering Abatement and Anti-terrorist Financing Act of 2001 | Title IV | Protecting the border | Title V | Removing obstacles to investigating terrorism | Title VI | Providing for victims of terrorism, public safety officers, and their families | Title VII | Increased information sharing for critical infrastructure protection | Title VIII | Strengthening the criminal laws against terrorism | Title IX | Improved intelligence | Title X | Miscellaneous |

Note. The data on the titles of the USAPA was adapted from How the USA Patriot Act Combats Cyber-Crime by Tammy J. Schemmel.

As shown in the table above, the Patriot Act was designed to modify and improve existing programs. Opponents of the USAPA cite these modifications as the primary reasons behind the act’s unconstitutionality.
Criticism of the USAPA Critics of the USAPA claim that the act should have been better analyzed before Congress voted on it. Initial criticism was directed toward the hasty passing of the Act with little review by Congress. They also assert that it violates the constitution by infringing upon civil liberties. More specifically, they state that First and Fourth Amendment rights are under assault by the new laws that are in place as a result of the act. To validate the opinions of its critics, the characteristics of the USAPA that are under such scrutiny must be analyzed.
Limited Review of the USAPA
The first aspect of the USAPA that sands out to its critics is the brief amount of time between its proposal and signing into law. The USAPA was officially drafted only days after the September, 11th attacks. By October 12, 2001, the act had already passed through the House of Representatives and the Senate, barely a month following the attacks (Library, 2001). The speed of the Act is partly due to the fact that the components of the bill had been on the drawing boards for quite some time. For instance, in response to the Oklahoma City Bombing in 1995, there was public outcry for Congress to pass a bill known as the Omnibus Counterterrorism Act; it was a bill that would result in law enforcement having fewer limitations in investigations, leading to stronger counterterrorism measures. In a periodical written by Time Inc. editor and critic Richard Lacayo, he stated that, “We must facilitate passage of the 1995 Omnibus Counterterrorism Act to make deportation of the ill-intentioned easier” (1995). Lacayo’s statement reflected a common attitude among American’s following the 1995 domestic terrorist attack. Because the Oklahoma City Bombing was far from the magnitude of 9/11, the Omnibus Counterterrorism Act received less attention and was never passed. Since components from the Omnibus Counterterrorism Act are pervasive in the USAPA, the bill already had a basic blueprint on which to expand. Therefore, the USAPA was able to land on the floors of the House of Representative and Senate only days after the September 11th attacks. Opponents state that had the September, 11th attacks never occurred a proposed USAPA would have undergone more scrutiny, as they claim that the attacks were used as a catalyst to accelerate the passing of the USAPA. Critics of the USAPA state that as a result of the quick passing of the bill, members of Congress did not sufficiently examine it to verify its constitutionality. This drove many Congressmen to oppose the act in the years following its signing into law. In their article Homeland Security & Civil Liberties, Craig Belanger and Heather Newton state that, “There was minimal congressional debate over the merits or drawbacks of the Patriot Act, and very little public scrutiny; critics charge that this was intentional in order to quickly pass the law before it could be thoroughly understood… A vast majority of both the Senate and the House of Representatives voted in favor the bill, including many legislators who would later renounce their support for it after it became apparent that law enforcement agencies were abusing their authority under the act in the name of the war on terror” (Belanger & Newton, 2011). Belanger and Newton state that as a result of the bill being rushed through Congress with little review, it was later renounced by many. Therfore, the opposition’s belief that the USAPA was unnecessarily rushed into law is appropriate. A growing opposition to the USAPA in the United States is evidence of such an occurrence. To pinpoint the reasons for such growing opposition, the USAPA’s constitutionality must be analyzed.
Constitutionality of the USAPA
The controversy regarding the constitutionality of the USAPA trumps all other discussions concerning the act. Critics of the bill view it as an overall threat to civil liberties. A common theme among those who oppose the act seems to reflect a famous quote by Benjamin Franklin. “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” The USAPA lifts many limitations on law enforcement for investigating and incarcerating suspected terrorists. Opponents to the bill are quick to add that such actions can be carried out on any United States citizen. An essential freedom granted to U.S. citizens under the First Amendment is the freedom of speech and association. Most Americans can safely assume that citizens are allowed the basic freedom of thought. Critics of the USAPA believe that, as a result of such a bill, the freedom of thought is under attack. USAPA Section 215, commonly referred to as the “Library Records” provision, allows agents of the Federal Bureau of Investigation to access the library records of “individuals of reasonable suspicion” in order to assist in investigations. (Gruben, 2006). In these circumstances, the person under investigation remains unaware of the fact that their private records are being reviewed by such agents. The Fourth Amendment guards against unreasonable searches and seizures. Critics of the USAPA claim that Section 215 essentially permits a search and seizure of an individual’s personal property [personal records] without the individual’s knowledge or permission and, it essentially permits federal agents to spy on the general population. “The Bill of Rights also gives citizens certain rights to privacy, particularly when it comes to their interest in reading, and the library has a duty to keep the interests of the citizens confidential from others” (Gruben, 2006). Under such a scenario, the unwarranted viewing of an individual’s library records is in clear violation of the U.S. Constitution. Moreover, the USAPA’s “sneak-and-peak” provision appears to carry the most controversy. “Activists have publicized the use of the law's most controversial sections, which allow sneak-and-peek searches (that is, searches conducted without notifying the targets) and government inspection of bank, library, and other records” (Weigel, 2005). Though the aforementioned seizure of library records is a form of the “sneak-and-peak” provision, it pales in comparison to the seizure of personal property within an individual’s home. Under these provisions, the FBI can, “…obtain a warrant not on the basis of ‘probable cause,’ as has been required in domestic criminal probes, but on the much looser basis that the information is ‘relevant to an ongoing criminal investigation’--not just terrorism” (Hentoff, 2001). Not only does the Fourth Amendment guard against unnecessary searches and seizures, but it also requires a judicially sanctioned warrant that is supported by probable cause. The “sneak-and-peak” provision appears to violate the entire fourth amendment. Under the USAPA, the surveillance capabilities of federal agencies, such as wiretapping, are greatly expanded. The act lifts many restrictions off of federal agents and law enforcement’s capabilities in monitoring telephone and internet conversations. Opponents of the USAPA are quick to point out that, the legislature violates the Fourth Amendment privacy protections by allowing investigators unlimited access to private conversations without probable cause. “The PATRIOT Act specifically extends existing authority to the Internet and expands wiretap authority to nationwide jurisdiction and roving wiretaps. Yet Fourth Amendment privacy protections are lost as law enforcement relies on more lenient FISA standards that do not require a showing of probable cause” (Lee, 2006). In her article, Lee describes how the USAPA’s wiretap provisions compromise the Fourth Amendment. She further explains that with less oversight over surveillance protocol, an indefinite rise in the use of wiretaps and internet surveillance would occur.
Proponents of the USAPA Supporters of the USAPA believe that the act is essential to guarantee a safe way of life for all law-abiding U.S. citizens in a post 9/11 world. They argue that the act removes barriers that prevent federal agencies from carrying out in-depth investigations on suspected terrorists. Proponents of the USAPA generally state that the provisions of the act performs, “…greatly [at] reducing the chances that the country will be subject to another devastating attack from abroad” (Lee & DiLascio, 2011). Overall, those who support the USAPA deem it necessary in order to prevent future large-scale terrorist attacks.
Constitutionality of the USAPA
Proponents of the USAPA present evidence that it lies within the bounds of the constitution. They insist that the provisions of the USAPA contain safeguards that protect individual civil liberties. For instance, according to the USAPA, as emphasized by Nathan A. Sales, a law professor at George Mason University School of Law, when considering the process of wiretapping, “… a prior court order is necessary. FBI agents can't unilaterally decide to eavesdrop on every phone a person uses. They have to appear before the Foreign Intelligence Surveillance Court and convince a federal judge that there is probable cause to believe that the target is a ‘foreign power’” Despite the requirement for the court order, such surveillance procedures are regularly carried out on U.S. citizens without their knowledge (Lee, 2006). As previously articulated by Lee, such provisions are routinely carried out by federal agencies with the nation’s best interests in mind, but they violate the Fourth Amendment of the U.S. Constitution.
Effectiveness of the USAPA
The Patriot Act simplified information sharing among government agencies so that they could more easily “connect the dots.” The law removed obstacles that prevented law enforcement and intelligence agencies from coordinating their work. Under the U.S. Department of Justice’s description of the USAPA, the “Virginia Jihad” case of 2003 was used as an example to demonstrate the effectiveness of the new provisions put into place as a result of the passing of the USAPA. “As the result of an investigation that included the use of information obtained through FISA [Federal Intelligence Surveillance Act], prosecutors were able to bring charges against these individuals [suspected terrorists]” (Justice, 2009). The FISA was an act that was directly amended by the USAPA to include groups that are not backed by foreign governments as terrorists. Without such a modification to the FISA, local Virginia authorities would not have been able to interact with federal investigators on the case, as the individuals were classified as terrorists. Furthermore, the USAPA has updated the law to usher in new technologies and to deal with contemporary threats. U.S. Attorney General John Ashcroft argued in favor of the USAPA arguing that it, “…gave law enforcement improved tools to prevent terrorism in the age of high technology” (Ashcroft, 2005). Ashcroft discusses the enhanced wiretapping techniques that are utilized by means of the USAPA. Before the USAPA, “investigators were forced to get a different wiretap order every time a suspect changed cell phones; now investigators can get a single wiretap that applies to the suspect and various phones he uses” (Ashcroft, 2005). The increased efficiency in the wiretapping process was proven effective in the capture of Uzair Paracha, a Pakistani national who resided in New York City who was charged with providing material support to al-Qaeda.
The USAPA was passed briefly following the September, 11th attacks to address the safety concerns of all Americans. In the time since its passing, the USAPA has indeed proven to carry out its provisions effectively. Though opponents of the act can argue that the bill was rushed and was ridden with unconstitutional provisions, one would be hard-pressed to deny that USAPA failed to effectively carry out what it was set out to accomplish. Overall, the USAPA continues to perform successfully and improve, particularly in the eyes those who support it. On the other hand, the USAPA must be classified as unconstitutional, as it violates both the First and Fourth Amendments. Though the act may perform successfully, it remains outside of the boundaries of the Constitution. Therefore, unless key components of the act are removed or the First and Fourth Amendments are modified, the USAPA will remain unconstitutional.

Ashcroft, J. (2005). The Patriot Act Was Necessary. In L. I. Gerdes (Ed.), Opposing Viewpoints. The Patriot Act. San Diego: Greenhaven Press. (Reprinted from address to the American Enterprise Institute, 2003) Retrieved from /ic/ovic/ViewpointsDetailsPage/ViewpointsDetailsWindow?displayGroupName=Viewpo ints&disableHighlighting=false&search_within_results=&prodId=OVIC&action=2&catI d=&documentId=GALE%7CEJ3010312208&userGroupName=tel_a_uofmem&jsid=c6a 3feb6d2fb82c4a5f037a8d8263590
Belanger, Craig, & Newton, Heather (2011). The Patriot Act Threatens Liberty. Points of View: Homeland Security & Civil Liberties. Retrieved November 27, 2012, from 22-190bb34c5972%40sessionmgr15&vid=5&hid=24&bdata=JnNpdGU9cG92LWxpdm U%3d#db=pwh&AN=26618842
Gruben, K. T. (2006). What Is Johnny Doing in the Library? Libraries, the U.S.A. Patriot Act, and Its Amendments. St. Thomas Law Review, 19(2), 297-328.
Hentoff, N. (2001). “Why should we care? It's only the Constitution”. Progressive, 65(12), 24- 27.
Justice, U.S. Department of (2009). Retrieved November 27, 2012, from
Kettl, Donald F. (2004). System Under Stress: Homeland Security and American Politics. Washington D.C.: CQ Press
Lacayo, R. (1995). Rushing to bash outsiders. Time, 14570.
Lee, L. T. (2006). Patriot Act Surveillance Powers Violate Privacy. In J. Carroll (Ed.), Opposing Viewpoints. Privacy. Detroit: Greenhaven Press. (Reprinted from Rutgers Computer & Technology Law Journal, 2003, Summer, 29, 371-403) Retrieved from DetailsWindow?displayGroupName=Viewpoints&disableHighlighting=false&search_wi thin_results=&prodId=OVIC&action=2&catId=&documentId=GALE%7CEJ301043420 6&userGroupName=tel_a_uofmem&jsid=ca90fcf9e807557ecf2791b6393dcab4
Lee, M., & DiLascio, Tracy M. (2011). The Patriot Act is Necessary for National Security. Points of View: Homeland Security & Civil Liberties. Retrieved November 27, 2012, from 4363-b422-190bb34c5972%40sessionmgr15&vid=6&hid=24&bdata=JnNpdGU9cG92L WxpdmU%3d#db=pwh&AN=26618839
Library of Congress, The. (2001). Uniting and Strengthening America Act. Retrieved November 30, 2012, from
Sales, N. A. (2012). The PATRIOT Act Does Not Violate Americans' Right to Privacy. In S. Engdahl (Ed.), Current Controversies. Espionage and Intelligence. Detroit: Greenhaven Press. (Reprinted from Testimony: Reauthorization of the PATRIOT Act, House Subcommittee on Crime, Terrorism, and Homeland Security, 2011) Retrieved from DetailsWindow?displayGroupName=Viewpoints&disableHighlighting=false&search_wi thin_results=&prodId=OVIC&action=2&catId=&documentId=GALE%7CEJ301027028 3&userGroupName=tel_s_tsla&jsid=90eb84f528d0
Schemmel, Tammy J., How the USA Patriot Act Combats Cyber-Crime. Retrieved November 28, 2012, from LexisNexis.
Stanford Law Review , Vol. 55, No. 4. (Apr., 2003). Patriotic or Unconstitutional? The Mandatory Detention of Aliens under the USA Patriot Act. p. 1419-1456
"The Constitution of the United States," Amendment 1, Amendment 4.
Weigel, D. (2005). When Patriots Dissent. Reason, 37(6), 32-38.

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...Constitutional and Administrative Law Pad525 Week 8 Cyber-terrorism Submitted By Rodney Leak Submitted To: Dr. Udoh Udom May 27, 2011 If you have thoroughly read chapter 11 of Cooper, you would appreciate his analysis of the problems presented in the acquisition, use and dissemination of information. Information is power - this is why we are studying PAD 525. The government needs information for national security purposes. Terrorists and hackers find ways to access sensitive information from the government.  National secrets are at bay. Individual identities are no longer private because personal information are easily accessible along cyber-highway.  If you have also read the Patriot Act, you will note enormous anxiety on the part of the government to search for and use information for national security purposes. The government is not only trying to contain politically motivated terrorism, it is also trying to contain cyber-terrorism. Examine the security challenges and threats facing the US government through the lenses of the emerging cyber-security threats. Currently we are experiencing a boom in technology from computers that lets you stream movies to you television to phones that lets you take pictures and gives your exact global positioning systems location (gps). Here is the issue with all of the newly created science and research for development of these programs, there is someone who is vigorously trying to break into to......

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...and unequivocally support Roe v. Wade. (Sep 2012) Invest in stem cell and other medical research. (Nov 2006) Pursue embryonic stem cell research. (Jul 2004) Support right to choose even if mother cannot pay. (Jul 2004) Choice is a fundamental, constitutional right. (Aug 2000) Democratic Party on Budget & Economy Create an economy built to last & built from the middle out. (Sep 2012) Restore the budget discipline of the 1990s. (Nov 2006) Cut the deficit in half over the next four years. (Jul 2004) Democrats reversed economic stagnation of previous years. (Aug 2000) Democrats must continue to lead Americans to prosperity. (Aug 2000) G.O.P. creates debt, Dems create surpluses. (Aug 2000) Democrats will eliminate publicly held debt by 2012. (Aug 2000) Policy should encourage home ownership & affordable housing. (Aug 2000) Democratic Party on Civil Rights Enable disability access; plus 100,000 federal jobs. (Sep 2012) Equal treatment under law for same-sex couples. (Sep 2012) Racial and religious profiling is wrong. (Jul 2004) Keep marriage at state level; no federal gay marriage ban. (Jul 2004) Strengthen some parts of Patriot Act and change other parts. (Jul 2004) Support affirmative action to redress discrimination. (Jul 2004) Police should have zero tolerance of racial profiling. (Aug 2000) Pass hate crime legislation including gays. (Aug 2000) Democrats lead fight......

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