Matt Welch wrote in 2003 that “the ‘fog of war’ obscures more than just news from the battlefield. It also provides cover for radical domestic legislation, especially ill-considered liberty-for-security swaps, which have been historically popular at the onset of major conflicts” (Welch 2003).
The first incarnation of the USA PATRIOT Act — an acronym for “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism”, (Welch 2003) — was a 342-page behemoth that was written, passed by Congress in a 98-1 vote, and signed into law just seven weeks after the terrorist attacks of September 11th. What’s more, the Village Voice reported that “the White House made clear [to Congress members] their votes would be spun as a test of their patriotism” (Lee 2003), which cowed almost all members of Congress into voting ‘yes’ to a bill most of them had not publicly discussed or even had time to read.
The Bush Administration used the climate of alarm and fear surrounding the September 11th attacks to ram through the first PATRIOT Act, a package of domestic legislation that gave the Executive Branch of government vastly expanded power to conduct wiretaps, conduct searches without court-ordered warrants, spy on its own citizens without checks from the judicial branch of government, and even make secret arrests.
Justice Department Spokesperson Mark Corallo commented to the Village Voice that the 86-page “Domestic Security Enhancement Act” (DSEA) of 2003 was designed to “ ‘[fill] in the holes’ ” of the first PATRIOT Act by supplying 100 new provisions aimed at “’refining things that will enable us to do our job’ ” (Lee 2003). The Bush Administration claimed that the 2nd PATRIOT Act represented a set of laws necessary for combating terrorism.
In actuality, what PATRIOT Act II achieved was to make the Executive branch of government nearly invulnerable to checks and balances mounted by the Legislative and Judicial branches. The Executive Branch of the U.S. government essentially gave itself sweeping powers to collect information about, spy on, arrest, prosecute and detain its own citizens on the speculative grounds of suspicion of terrorist activity. Enforcement agencies didn’t need a court-ordered warrant to collect evidence of suspicious activity and would not face any consequences if their information was, in fact, completely wrong.
Welch listed some “worst offenders” in his 2003 article — passages of the new DSEA that dramatically cut down on the rights of citizens and residents of the United States without judicial review or adequate government supervision of enforcement agencies. Among them were the provision that “Americans could have their citizenship revoked, if found to have contributed ‘material support’ to organizations deemed by the government, even retroactively, to be ‘terrorist.’”. Previous to the proposed bill, Americans had to declare in words a clear intent to abandon their citizenship. Under the wording of the new bill, “the intent to relinquish nationality need not be manifested in words, but can be inferred from conduct” (Welch 2003).
The DSEA would have also allowed the government to deport legal permanent residents who were not American citizens if the Attorney General declared the individual a threat to national security, regardless of whether the person in question was charged with a crime for which there was evidence. Minor offenses could be grounds for deportation without trial, as the new bill would exempt the government from conducting habeas corpus reviews in some cases. As the ACLU pointed out in their brief protesting the DSEA, “‘Congress has not exempted any person from habeas corpus – a protection guaranteed by the Constitution – since the Civil War.’ ” (ACLU 2003).
As well as eroding their legal rights, the DSEA bill threatened Americans’ privacy by proposing such terrorism-fighting measures as establishing a national citizen DNA database to create genetic profiles of citizens (Welch 2003). Besides being a massive invasion of privacy — samples could be collected without obtaining a court order and anyone who refused to submit to a cheek swab could be fined $200,000 and/or jailed for a year — such a database would expose citizens with “faulty” DNA to discrimination from employers, insurance companies, and the government.
But that’s not all. The provisions of the DSEA would also have allowed law enforcement to conduct surveillance on anyone’s phone line, emails, chats and internet usage for 15 days without obtaining a warrant. In some cases, the results of this surveillance could be shared with intelligence agencies in foreign countries, even dictatorships (Welch 2003).
The DSEA also included measures such as the “library records provision” that would have indirectly induced American citizens to spy on each other. Under the DSEA, Businesses that rat on their customers to the Feds – even if the information violates privacy agreements, or is, in fact, dead wrong – would be granted immunity. “Such immunity,” the ACLU contended, “could provide an incentive for neighbor to spy on neighbor and pose problems similar to those inherent in Attorney General Ashcroft’s Operation TIPS” (Welch 2003).
TIPS stands for the Terrorism Information and Prevention System, and was a failed initiative of former Attorney General John Ashcroft to create a national terrorism hotline citizens could call to report suspicious activity to the U.S Justice Department.
The TIPS program, if ratified, would have violated Fourth Amendment rights against involuntary search and seizure by permitting citizens to be surveilled and reported on without a warrant. The program was geared toward U.S. workers with jobs that gave them access to citizens’ private homes, such as electricians, cable technicians and letter carriers. TIPS had the potential to become “a program that [would] turn local cable or gas or electrical technicians into government-sanctioned Peeping Toms” (Randall 2002).
The House Select Committee on Homeland Security eventually blocked the proposal when it passed the renewed version of the PATRIOT Act, stating “to ensure no operation of the [Homeland Security] Department can be construed to promote citizens spying on one another, this draft will contain language to prohibit programs such as Operation TIPS” (Randall 2002).
The DSEA also reduced the power of federal “consent decrees” limiting local law enforcement’s ability to spy on citizens in their jurisdiction, effectively expanding the power of localized surveillance programs. Furthermore, under the new PATRIOT Act, “police officers carrying out illegal searches would also be granted legal immunity if they were just carrying out orders” (Welch 2003).
However, although the government could be collecting plenty of information about people suspected of terrorism, once an individual was arrested on suspicion of terrorism, the provisions of the DSEA instructed law enforcers not to release any information about them or the allegations against them until the detainee was formally charged with a crime. Or, as Village Voice columnist Nat Hentoff chillingly phrased it, “for the first time in U.S. history, secret arrests will be specifically permitted” (Hentoff 2003). In addition, the DSEA proposed stiffer legal penalties for terrorism-related offenses, and would have expanded the death penalty to include 15 new offenses (Welch 2003).
Perhaps most frightening of all was the DSEA provision that would prevent the first PATRIOT Act’s “sunset provisions” — which required that law enforcement’s expanded powers be rescinded after 2005 — from taking effect. The sunset provisions were put in place in the original PATRIOT Act as a concession to Congressional critics of the bill (Welch 2003), and the proposal to rescind them was nothing more than a way for the Executive Branch to make its lopsided hold on power permanent.
These and other provisions all add up to what Hentoff has called “the most radical government plan in our history to remove from Americans their liberties under the Bill of Rights” (Hentoff 2003). Luckily for everyone who values transparent, accountable government and civil liberties, the draft form of PATRIOT Act II was leaked to the Center for Public Integrity by a concerned Justice Department staffer.
The detailed leak resulted in widespread public opposition to the DSEA bill, including from members of traditionally right-leaning organizations such as the Free Congress Foundation, the American Conservative Union, and the Gun Owners of America, all three of whom signed a petition letter to Congress along with the ACLU and People for the American Way (Welch 2003).
One does not have to believe that Ashcroft is a Constitution-shredding ghoul to find these measures alarming, improper and possibly illegal. Glancing over the list above, and at the other DSEA literature, I can see multiple ways in which a Fed with a grudge could legally ruin my life. Removing checks and balances on law enforcement assumes perfect behavior on the part of the police (Welch 2003).
Since 2009, many of the PATRIOT Act’s provisions have sunset after Congress voted against renewing them. However, President Obama did sign three key provisions of the PATRIOT Act into law on May 26th, 2011:
1. Roving wiretaps: under this measure, enforcement agencies can conduct roving surveillance of a suspect’s phone, email accounts and address without having to obtain a new warrant if the person changes phone numbers or locations. In the past, a new surveillance warrant would have to be granted for each separate phone line or email account used by a suspect. This measure has proven controversial because it lifts restrictions on enforcement agencies which require them to have permission for each separate account or phone line being monitored. Roving wiretaps have the potential to collect information about a suspect that is not pertinent to the investigation being conducted, but could be used to charge them with a different offense.
2. Library records provision: The director of the FBI or an official designated by the director may obtain an order to procure records from businesses as part of investigations to combat international terrorism or clandestine surveillance activities. The library records provision allows the director of the FBI (or the director’s appointed official) to obtain any “tangible” items such as books, records and files that may aid the investigation.
3. Surveillance of “lone wolves”: Defined as individuals who are suspected of terrorist activities but are not affiliated with any larger terrorist organization. The “lone wolf” provision only applies to suspects who are not U.S. citizens.
Since the passing of the first PATRIOT Act, there have been calls for greater protection of Americans’ civil liberties under the act. Senator Patrick Leahy (D-VT) has argued in Congress that there need to be amendments put in place to protect citizens’ privacy and extend government oversight on the enforcement of the PATRIOT Act. As part of Leahy’s call for a bi-partisan review of the new PATRIOT Act, on May 24th, 2011 Leahy presented an amendment co-authored with Rand Paul (R-KY) to phase out the use of National Security Letters in lieu of court-granted search warrants.
Chisun Lee, “Bracing For Bush’s War at Home: Ground Laid for Historic Presidential Powers Push”, The Village Voice, March 25th, 2003.
Kate Randall, “Operation TIPS: Bush Plan to Create One Million Domestic Spies”, last modified July 22nd, 2002, http://www.wsws.org/articles/2002/jul2002/tips-j22.shtml.
Matt Welch, “Get Ready for Patriot Act II”, last modified April 2nd, 2003, http://www.alternet.org/story/15541?page=1.
Nat Hentoff, “Ashcroft Out of Control: Ominous Sequel to the Patriot Act”, The Village Voice, February 28th, 2003.
“Operation TIPS”, http://en.wikipedia.org/wiki/Operation_TIPS.
“Senator Leahy Pursues Bi-Partisan Patriot Act Reform”, last modified May 24th, 2011, http://epic.org/privacy/terrorism/usapatriot/.