"Any people that would give up liberty for a little temporary safety deserves neither, and will lose both."
The USA PATRIOT act of 2001 is often regarded as either one of two things – first, an excellent tool to protect American civilians from terrorists. Adversely, it is also seen as a tool used by government (or capable of such use) to infringe upon the personal rights of those same American civilians.
Both arguments have credence, as I explain later in this paper. This work is mainly for the purpose of explaining, to the best of my understanding, the Constitutional ramifications of the PATRIOT act, as well as the consequences of this act concerning the liberties of the American citizen. Also included will be various observations on the “war against terror” itself when relevant to the discussion of the PATRIOT act.
This work is not intended to be focused directly against a certain political party or figure; rather, it is an analysis of a particular action taken by the Federal government of the
About the PATRIOT Act
The omnibus USA PATRIOT act itself is properly named the Uniting and Strengthening
In the aftermath of September 11, 2001, the entire country was in a state of shock: shock that someone would have the audacity and courage to launch an attack on American soil, even if that attack took the form of a jet being hijacked and rammed into a building. The shock lasted. However, the interesting thing with human beings is that, when confronted by situations that require much thought, weighing, and comprehension, they can be the most stubborn, irrational, rushing things in nature.
So it was with 9/11. In a tense atmosphere that required that we adhere even more strongly to the Constitution, do what we could within its limits, and most of all, make sure we didn’t take any foolish action we would later regret, our leaders instead buckled down and committed some of the most heinous crimes against the Constitution since the Federal Reserve act.
The PATRIOT act was just the first in a long line of civil rights abuses. On its heels came two wars, unconstitutionally begun and unconstitutionally continued, and yet more grabby Federal agencies to watch our every move, as if the FBI, CIA, and NSA weren’t enough. The PATRIOT act formed the foundation for this chain of abuses. Giving the Federal Government unprecedented power over the lives of its citizens, it ensured that the feeling of fear and insecurity in the direct aftermath of 9/11 would carry over years into the future – only this time, this fear would not be provoked just by the terrorists, but also, in large part, by the government that claimed to protect us.
Before any serious analysis of the PATRIOT act can be entered upon, I believe one must first establish the nature of the enemy it was intended to fight, and of the tactics they use.
A terrorist is, in the loosest definition of the word, a person or organization which uses the tactic of terrorism. In the incarnation we currently hear the most of, a terrorist is generally regarded to be a Muslim man, about twenty or thereabouts, sporting a suicide bomber’s vest and shouting Muslim anthems at the top of his lungs as he takes both himself and a large group of Westerners to Paradise (or the Muslim version of hell, as the case may be).
The tactic of terrorism, and hence terrorists, have a long history not fundamentally rooted in Islam. Terrorism (an act intended to incite terror in a population) has been around since the Roman era, when political rebels used terror as a tactic against the repressive Romans. The practiced lived on as the primary tactic of the Muslim Assassins against the Crusaders and rival Islamic factions, the Irish nationalist movement in the 19th century, the Kamikaze bombers of Japan, one of the most blatant acts of terrorism (yet not generally regarded as such) embodied in the nuclear bombing of Hiroshima and Nagasaki during World War II, the Viet Cong, and most recently, attacks by Palestinians upon Israel, and vice-versa.
Many of these actions were not religiously motivated, negating the modern Western view of terrorism as a purely religious movement, held fast within the confines of a Middle Eastern desert. Terrorism as a tactic transcends such paltry boundaries. This makes it very difficult for a “war on terror” to be waged, since acts of terror can be prosecuted by any faction or person in any country on the planet. Yet the primary goal of the PATRIOT act is claimed to be that of fighting just such a war, on top of that of “keeping
Terrorism is, by its very nature, merely a tactic. Tactics can be reacted to; one cannot declare war upon them. Nor is it feasible to declare war on (or engage in “extended military maneuvers” in) countries or against peoples that have made use of the tactic. If we were to do so, nearly every nation and people on the globe would have to incur our wrath because of their actions at some point.
Further complicating this idea is the fact that those who use the tactic of terrorism are akin to guerilla warriors in that they do not have a base of operations that is stable. These organizations are often nomadic, keeping themselves in secret hideaways that change quite frequently. Unless they are allied with a nation-state, as in the case of the Viet Cong or the Kamikaze pilots, it is impossible, by the very nature of the thing, to declare war upon them: you do not, and cannot, declare war upon organizations or ideological groupings, but upon nations and armies.
And here arises yet another problem – that of the men themselves. As stated earlier, not all of these terrorists are religiously motivated, despite the stereotypical suicide bomber image the American media and politicians have fought so hard to project. Especially in recent years (after the American invasions of
After the American invasions of
In the aftermath of the
Because of this resurgence, it is logical to conclude that our invasion caused the train of events that caused the rise of the insurgency. It also attests to the remarkable resiliency of the Afghan people, especially. In the past, they have repeatedly shown themselves capable of fighting off a far superior foe, and managing to regain control of their ancestral lands. The arrogance
Added to the above, there is also the domestic side of this “war on terror.” A count of how many politically motivated “terrorists” might actually be in America is hard to come by; however, the drama of “Jihad Jane” in the winter of 2010 was ample reminder that there is the potential for terrorists and terrorism to live right here in the United States, and even to be one of our own.
There is also the fact that at least three (according to an INS report1) of the 9/11 hijackers were living here in the
The PATRIOT act is, in large part, intended for the domestic side of things, though it does provide for several interesting foreign matters – for instance, USC 18,113B (revised by sec. 104 of the PATRIOT act) allows the Justice Department to authorize military maneuvers if a person within the United States (or, presumably, outside) is conspiring to build or use a weapon of mass destruction, a vague definition that leaves quite a bit of wiggle room for the person carrying out the orders.
So, in summary of this section – the PATRIOT act was intended to curb terrorism. Yet foreign (and even domestic) terrorism is difficult to discover, difficult to nail down, and even more difficult to fight. Because of the nature of terrorism, and the nature of the organizations that make use of the tactic, it is impossible to wage a war upon them that is actually feasible.2
One of the primary arguments I have heard for the PATRIOT act is safety. It keeps us safe, its proponents argue. Yet I would ask – at what cost? As the quote at the beginning of this paper said – if we are willing to give up fundamental liberties in the pursuit of safety, the safety we gain will be transitory, a mere chimera that flees at the first sign of danger, leaving us both unsafe and in the grip of tyrants.
The PATRIOT act vastly increases the size, scope, and power of the Federal government. “Emergency” powers are granted to the Executive Branch (Section 106) giving the President the power to direct the seizure of any substance, object, or presumably, any person without a warrant. This gives one man the power to do whatever he wants, outside the Constitution or the bounds originally set down for his office.
True safety does not lie in allowing our elected officials to do what they will with us. While the PATRIOT act may keep us safe from outside perils (though there is little evidence that it has done so), or even dangers from the inside, it expands government control over our lives, putting us in danger of another peril.
In reality, much could have been done within the bounds of the Constitution to ensure our safety. As previously stated, at least three of the 9/11 hijackers were illegally living in the
We should also be watching who we give visas to in the first place. As the “Christmas Day Bomber” Umar Farouk Abdulmutallab showed, we oftentimes let our own sense of security (an ultimately false sense) get out of control. If we had followed
Safety could be better achieved with less invasive procedures that would not require the circumventing of rights and principles we as American citizens hold dear.
Warrants, Searches and Seizures, and Wiretapping
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The Fourth Amendment to the
Above I have quoted the entirety of the Fourth Amendment. Most Americans are – or should be – familiar with this amendment. It guards against power abuse by law enforcement. This amendment gives the stipulation that, before any searches can go on or any property be seized, a warrant must first be issued by a court of law. This warrant can only be obtained after first proving there is “probable cause” for the search, seizure, or arrest to be made.
The PATRIOT act gives several rather harsh blows against this amendment. Though many sections of the PATRIOT act do contain the provision that warrants must be served, this device for the preservation of freedom often seems to take a secondary role. The view of the authors of the bill seems to be “You can do this-and-this, and oh yeah, it might be good to get a warrant, too.” Often, the language in the bill concerning warrants is vague, with little actual accountability built in.
For instance, the act revises 18 USC 2516 to put in extra wiretapping provisions for terrorism. The wording of this section is ambiguous, giving the impression that information for a warrant can come from former wiretapping operations. It is unclear whether the former wiretapping op must have had a warrant, an oversight that seems a bit strange given the seriousness of this tactic. Section 218 makes a strange revision concerning the purpose for wiretap warrants. The revision changes the stipulation that the purpose of a wiretap must be to gather foreign intelligence, to that a "significant purpose" of the wiretap must be to gather said intelligence.
This ambiguous wording, changed to be so, appears to me to denote the creation of a legal loophole, created so that the purpose of wiretaps could be broader than originally intended. This raises the question – what would be the purpose of wiretapping someone who is not involved in a foreign governmental entity or foreign terrorist group? With this stipulation, it is conceivable that the government could try to legally wiretap anyone they wanted to, not just those who were really involved with terrorist groups.
Of course, it is disputed whether wiretapping is included within “searches and seizures.” The Founders had no telephones or email, no cell-phone waves to be intercepted, so it is argued that hence, such things have no protection under this amendment. I would argue that the opposite is true. The definition of “effects” and “records” is able to change as our view of those words also changes. I would argue that, in present-day society, “effects,” “papers,” and “records” should be taken to include cell-phone records and calls, texts, emails, phone calls, and digitized records for the sake of good governance.
The act also revises 18 USC 2518(7). The revisions in this case appear to create a loophole for the Justice Department and the Attorney General. It allows the Attorney General or one of his trusted underlings to grant a warrant without the approval of an actual judge. This appears to me to be a formal legalization of the “good-faith rule,” established in the Supreme Court case Terry v.
The revised 18 USC 2518(7) goes on to create the qualifier that an application for an order must be filed within forty-eight hours of the actual start of the operation. This section once again has another built-in loophole: even if an order is not obtained, the operation can continue until the information sought is found. Given the scope of government “phishing expeditions” the public has seen (an inaccurate measure of the true nature of these operations), it is unlikely, to my mind, that such operations would be carried out in a manner befitting a free society. The operation could go on for weeks or months without the limits put in place by a warrant.
Section 214 revises 50 USC 1842, changing the qualifications for a trap-and-trace operation. This is the process whereby an entity observes all calls incoming on a certain device, be it phone or computer (the pen register device is related to this, with the difference that a pen register monitors all out-going, rather than all in-coming calls or information). Written into this provision is the preservation of first-amendment protections, though it is written in such a way that it appears that the protection may be but skin-deep. For instance, this section allows for these operations to be launched against foreign terrorist organizations and spies. Herein lies the difficulty – how are such things defined? The definitions of such terms in the
One of the gravest blows against the fourth amendment comes in section 213 of the PATRIOT act, in the form of delayed notification for warrants. The section states that the government can delay notifying the subject of a warrant if it is believed that notification would result in adverse consequences. “Adverse consequences” is vague, giving little insight into the actual circumstances that would qualify. It is conceivable that practically any situation in law enforcement could be found to have “adverse consequences” if notification was served; for instance, it is quite likely that an “adverse consequence” might be seen as the escape of a criminal because he or she knew of a warrant. How many times has such a consequence occurred, and how many such situations would be covered under this provision?
Under this provision, law enforcement officers can search and seize property without the owner’s knowledge (by the aforementioned delay of notification), what seems to me a grave over-extension of legal power in the direction of martial law. (Section 215 continues in this same vein, allowing for companies to be searched and consumer records to be seized without said consumer’s knowledge.)
But the need for a warrant is not always built-in. In some cases, this seems innocuous; for instance, in section 212, it is stated that if a provider of a service (presumably regarding telephone, cell-phone, or internet service) inadvertently came across information concerning terrorism or some other crime, said provider is free to take the information to the government, as they should. In such a case, I would say that it was not unconstitutional, as the information was not gleaned from an actual government source (though that could be disputed).
But section 212 does seem to contradict itself just slightly, by also stating that a provider cannot give out consumer information unless the governmental entity seeking to acquire the information has a warrant. This is an apparent contradiction, and one that seems to create a loophole of significant proportions; just where does each provision end and the other begin?
Ambiguous and vague wording, coupled with seemingly unimportant exclusions all combine to form an overly intrusive, unconstitutional cocktail of allowable activities. Taken together, they pose a grave threat to the privacy and freedom of American citizens.
I believe a word should be said here on this subject. There are multiple “watchlists” compiled by the
Number one, watch lists such as the TSA “no-fly list” have very little information, and hence are notoriously unreliable. They have a name, and nothing else – no age, no passport number, not even a text description. This leaves it incredibly open, both to mistakes and abuses. How are we sure the right people are being stopped? What if there is a “John Smith” on the list? Well, how many “John Smiths” are they going to detain before they get the “right” one?
The TSA and the “no-fly list” rose out of a provision of the PATRIOT act, which suggests that airports should be given access to government watch-lists of suspected terrorists, ostensibly to prevent a second 9/11. It is estimated that over 6,000 names are on the no-fly list, most of them without any further information beyond a name, hence the rather embarrassing mistaken detentions made, like that of 8-year old Mikey Hicks.5
Other than the no-fly list, there is also the Terrorist Watch List. Reported to have over a million names on it, the Terrorist Watch List is a list of suspected terrorists, both inside and outside the
Despite efforts, it can take months to get your name dropped off a list. In fact, until mid-2008, it was near impossible – until a California court ruled that the government must hear such cases, and passed one such case on up the line.6 The DHS created a program called DHS TRIP to help with such cases as well, though the system works inefficiently, and moves at a mere snail’s pace.7
If the watchlist fails, the TSA has a secondary line of approach – the Secondary Security Screening Selection (SSSS). This is a system whereby passengers of a plane are either randomly chosen, or are selected through a system of criteria ranging from having one-way reservations to flying to a specific destination that appears “suspicious.”
If a person is stopped in an airport, never fear – the search that will ensue is perfectly legal, when taken in light of 31 USC 5317 which gives law enforcement the right to search you at the border (or, apparently, anytime you’re boarding a plane, even if your flight will stay within the bounds of the US) for any reason.
Who has access to these government watch lists? Only every federal law enforcement agency in the
Are we sure we want the government to be able to arbitrarily say whether or no we are free to get on a plane, travel, or buy certain things? Many people (both on the right and the left) like to use scare-tactics of certain governmental surveillance and incursion that will eventually take away our every freedom. Yet when such a provision actually occurs, you see very little protest.
Your Money and the PATRIOT Act
A significant portion of the PATRIOT act deals with monetary matters: crimes, penalties for said crimes, etc. Most interesting about these parts of the PATRIOT act are the “protections” against smuggling and the origins of your money.
Section 365 gives the government the authority to require an accounting of all “non-financial” transactions if those transactions exceed $10,000. This seems to me to be against the principles of personal liberty embodied in the Constitution. What business does the government have investigating me merely because I have money? (Although, as with so many things, the government often seems unconcerned about the true substance of the rules. A man was detained for carrying only $4,700 by the TSA.8)
If a private citizen has money, it is theirs. The government has no claim to it. We as citizens allow our government to take some of it in the form of taxes, to reap some tangible benefit in return, generally in the form of social programs and the like. But the government being able to investigate citizens merely for possessing money is going one step too far in my opinion. Once we allow them to do that, where will they stop? When they have completely trespassed against the Fourth Amendment and it has become naught but an annoying legal clause in a long chain of others?
Another facet of this issue is also the use of our taxpayer money. It is a known fact that the government often uses taxpayer money in foreign aid payments for other countries. Yet under the PATRIOT act, this aid money isn’t dependent upon actual need, but instead upon said country’s level of cooperation with
Section 360 of the PATRIOT act puts foreign aid funds at the disposal of the President and his Cabinet secretaries, and gives him the power to dispense these funds to countries he feels are doing things in the best interests of America; basically, bribing other countries to cooperate with our policies, even those that might not be in other countries’ best interests. Not only does this give the Executive branch powers above and beyond the set Constitutional limits, but it also gives the impression that, far from being a freedom-loving, helpful nation, we are in fact the exact opposite – a tyrannical, overbearing nation that only wants to help itself. In fact, we look a lot like the bully on the playground.
The PATRIOT act grants the government immense power over the financial industry. Many of the provisions are merely strengthening and reiterating laws that were already on the books. This does not, however, give the federal government the right to dictate to the rest of the world, via our money, how they should act or govern. Nor does it give the federal government the right to harass American citizens merely because they are in possession of a set amount of money.
Aid to Terrorists
The PATRIOT act revises the guidelines originally set out in the Antiterrorism and Effective Death Penalty Act of ’96 concerning providing “aid” to terrorists and affiliated organizations. Under the PATRIOT act, “aid” can be any number of things, ranging from a simple monetary donation to helping a terrorist set up a missile launcher.
In 18 USC 2339A, “aid” is separated into three main categories – material support, expert assistance and advice, and training. The first category consists of anything from lodging (a hotel room?) to financial help. The second includes giving them computer advice (a casual tech?), to teaching them obscure mathematical equations. The third and final category includes teaching them how to use guns and the like. In another area of the bill (section 812), it adds “harboring or concealing terrorists,” which seems to be akin to “lodging.”
Once again, these are very vague provisions, mostly because of the wiggle-room inherent in the definitions. What exactly is “material support?” Even with the extra qualifiers, it is still a broad definition. On the other hand, there is the added “buffer” (if you could call it that) of what I call “reasonable knowability” – if you could know something about the terrorist activities you were allegedly helping in, you can be prosecuted. If you couldn’t have reasonably known, then you will not be held responsible (this is dealt with in more detail in the next section).
Despite that added level of “safety” from the excesses of law enforcement and our justice department, I still find this section to be too far-reaching over personal freedom. People have the freedom to divert their private funds where they wish. They also have the freedom to give their time and labor to whatever cause they wish so long as they are not infringing upon the freedom of another individual.
Judging Thoughts and Intents
Under the PATRIOT act, the government also takes the right to judge, not on actual crimes committed, but instead upon the “intent” and if someone could “reasonably have known” about terrorist activities of a person they were “aiding”.
If someone had the “intent” to carry out a terrorist action, he or she can be detained, or if something was “intended” to be used in a terrorist action, it can be seized without a warrant. Herein lies the difficulty – how would the government know if something was “intended” for a certain use, or if someone “intended” to launch an attack? If that is the only grounds needed, to what heights of power could that catapult the federal government?
The “reasonable grounds for knowledge” clause is in many parts of the PATRIOT act. It goes both ways. Someone will not be held accountable for having “aided” a terrorist if they did not have reasonable grounds for knowing the person was a terrorist. Adversely, if they reasonably could have known (or should have known), then they can be detained and brought to trial.
Measures such as this are passing perilously close to the realm of thought-policing. How, exactly, is plausible “knowability” to be decided? Without an actual knowledge of a certain person’s thoughts, it seems highly unlikely that law enforcement, no matter how good, could actually decide whether someone “could have known” about a certain crime to any degree of certainty.
There is also the subjectivity of the clause. What are “reasonable grounds for having known?” Who decides such a thing? Does a judge factor in what he or she thinks of the individual’s attention span, level of alertness, etc. If so, how does one accurately measure such a thing? Once again, this section of the PATRIOT act is vague, giving little real protection for American citizens.
With this provision, the government is, in effect, setting up the precursor to a thought police mentality. Ordering our law enforcement and judges to make decisions about someone’s intents and thoughts concerning a certain action or proposed action passes perilously close to real thought control.
Penalties and Punishments
So let’s say that, through some convoluted process of the law, whether by your own fault or no, you were to end up on the wrong side of this act: you were picked up as a terrorist. Whether through the investigative efforts of a wiretapping station, or a perusal of your credit records, brought to attention via some “tip,” you are currently being detained.
So what, exactly, will happen at this point under the PATRIOT act?
First of all, if you are a suspected terrorist or linked to a suspected terrorist, law enforcement can pick you up and detain you at a high-security detainment facility (such as Gitmo) practically indefinitely until a hearing/trial can come about. This detention is mandatory. For non-American citizens, this detention is mandatory until their removal from the
Under the current rules, a hearing into the legality of the detention must be held no later than seven days from the date of the arrest– a point our government has seemed to completely ignore. It is not clear where nor how these hearings would be carried out: for instance, whether they would be military tribunals, civilian trials, or something else entirely, or whether they would be open to the public and press.
Added to section 412 is the further rule that detainees can only be held for six months, maximum. Besides displaying an aptitude to make rules then promptly break them on the part of our officials (elected, hired, and appointed), this also serves to show that perhaps someone did have the right thing at heart when drafting this bill. But as we all know from places like Gitmo, Abu Ghraib, etc., it is obvious our government hasn’t been too eager to keep up with this rule, nor the legalities involved.
Of course, this part of the section might also have a loophole built in. Assuming that Gitmo and like areas are not actually counted as “part” of the US per se, then men could conceivably be held indefinitely at those sites under the “mandatory detention” rule.
It is unclear what would occur if the detainee were not an “alien” (foreign terror suspect), but instead an American citizen. I would assume that you would also be detained, and perhaps (due to your more prestigious standing in the eyes of our nationalistic self-examination) would receive a speedy trial.
Many of the provisions concerning penalties are, then, filled with holes and difficult to uphold. There is little government oversight of these rules and the facilities that should be carrying them out – the debacle at Abu Ghraib and the detention facility at
A Matter of Principle
“Not all these things are actually taken advantage of.” “We have to be safe.” “Sometimes we have to sacrifice liberty in favor of safety.” “We have to compromise.”
All these arguments I have heard in favor of the PATRIOT act. Throughout these pages, I have shown the dangers inherent in the PATRIOT act. To recap – the PATRIOT act:
- Vastly increases the size and scope of federal government through strengthening both federal law enforcement agencies, and executive power.
- Undermines the right of American citizens to be free from warrantless searches and seizures.
- Is vague in its provisions by leaving techniques and provisions open-ended, free to be exploited by individual law enforcements officers, judges, and even the President and his cronies.
Yes, perhaps I don’t know I am on a watchlist. Perhaps no one I know is. And yet the potential is there, and while there is potential for freedoms to be undermined, we are not truly free. It is principle we must stand on here, and that principle must be individual liberty.
Within these pages I have listed the different points of interest that I believe trespass against the Constitution and against the principles of freedom inherent in that document. I hope that, perhaps, you are both better informed about the PATRIOT act, and about the danger it poses to our personal liberty.
Notes and Bibliography
The Legal Information Institute (
- INS Staff Statement No. 1 – Entry of the 9/11 Hijackers into the
- Teenage Politics (teenpolitics-liberty.blogspot.com) archives, January 2010, “The War on Terror”
- boing-boing.com, “TSA searches, detains 5 year old because his name was on no-fly list”
Post – August 20, 2004 – “Sen. Kennedy Flagged by No-Fly List” Washington
- New York Times – January 13, 2010 – “Mikey Hicks, 8, Can’t Get Off No-Fly List”
- San Francisco Chronicle – August 19, 2008 – “Court: Passengers can challenge no-fly list”
- BTNonline.com – October 19, 2009 – “DHS Trips on Watchlist Redress”
- boing-boing.com, “Man detained, threatened, and abused by TSA for flying with $4700 in cash”