IBDP History Internal Assessment
A. Introduction
The USA Patriot Act broadens the power of U.S. law enforcement agencies. The aim of this investigation is to investigate the scope of its power, determine if the currently employed anti-terrorism measures are similar to historical ones and assess to what extent the Act is an unfounded assault on civil liberties. The main sources used are The USA Patriot Act by Howard Ball and Terrorism and the Constitution2 by David Cole and James Dempsey. A plethora of books and documentaries written and produced by knowledgeable experts, the Act itself and the Constitution were examined. As an American concerned with the direction the country is heading in, it is hoped that this investigation will provide a deeper, clearer understanding of the current and controversial issues gripping America in the context of its history.
B. Summary of Evidence
The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act
First passed in 2001, the Patriot Act was supported both by the Senate (98 to 1) and the House (357 to 66) before being signed into law by President Bush, making it possible for federal officials to use a larger variety of methods in tracking/intercepting communications for the purpose of foreign intelligence gathering and law enforcement.3 Bush implies a departure from the Constitution when, in defending the Act, he argues that "we live in historic times. We face a different kind of war."4
To what extent is this assertion correct? Under war conditions, civil liberties and political participation is often curtailed or violated by the government. This typically happens because the demands for national security take precedence over the demands of democracy.5 During times of national security, there tends to be little tolerance for those who criticize and challenge the government's foreign policies or the status quo. From the end of the 18th century, Adams regarded foreign nationals in America as a danger to public order, requesting Congress to approve the Alien and Sedition Acts (1798). During the Civil War, Lincoln made extensive use of his Presidential powers and sidelined
Congress entirely, suspending habeas corpus leading to the arrest and detainment of approximately 13,000 people without further trial.8 The Supreme Court told Lincoln to respect habeas corpus,9 but Congress then approved the Presidential Decree. The Great War brought the Espionage (1917) and the Sedition Acts (1918), the former imprisoned dissenters "willfully" attempting to cause insubordination in the military or its recruiting efforts to up to twenty years, again made criticism of the government an offence and was used against dissidents, restricting freedom of speech.10 The 1919 Red Scare led to the 'Palmer' raids where people suspected of membership to left-wing organizations were arrested, held incommunicado and imprisoned." Roosevelt during the next world war, a striking parallel to Guantánamo, locked up 120,000 Japanese-American citizens.12 The height of the Cold War brought COINTELPRO, which sought to neutralize threats by conducting break-ins, warrantless wiretaps, infiltration of civil rights groups, and was seen as so unconstitutional it was initially kept a secret.13 The Migration and Nationality Act of 1952 made it possible to deport people who had ties with communist groups on the basis of "guilt by association." 14 Nine years later the Supreme Court considered "guilt by association" contrary to the First Amendment.15 Before the 1964 Civil Rights Act, many were denied the civil liberties the Patriot Act supposedly undermines, and women were not allowed to vote until 1920.16 The FBI even from before this time has intentionally used investigations to intimidate and systematically gathered intelligence on domestic groups 18 while conducting activities knowing they were illegal or without going through proper legal channels. 19 The Clinton Administration passed AEDPA,20 advocating wiretaps, reduced appeal privileges for death row inmates, restrictions on rights for immigrants and an internet censorship legislation that even the Supreme Court found unconstitutional. 21
C. Evaluation of Sources
The USA PATRIOT ACT of 2001: Balancing Civil Liberties and National Security, A Reference Handbook
Instead of critiquing the Act, Ball's book offers an objective point of view. Aimed at high school students, it is written and organized in a fairly concise and clear way to successfully condense the 300 page legal document, reviews from numerous critics and the Bush administration's justification for its actions into 200 pages. Published in 2004, this source provides narrative chapters regarding the passages of the bill, a legal analysis, and reprints of documents. Due to the Act's legal nature, there is a high possibility that during the translating process, the original meaning was obscured. It can be argued that this source therefore focuses on breath over depth, providing just enough information to understand the Patriot Act.22 The intention of this source is not to promote an ideology or point of view but to present facts and information. Valuable here in making the Patriot Act accessible and providing a good starting point to the research process. Without it, it would have been a challenge to get a grasp on the Act. Ball after all is not simply translating a 300 page document; he is taking on 200 years of cumulative American constitutional law and history.
Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security
First published in 1999, reprinted in 2002 following 9/11 and revised following the renewal of the Patriot Act in 2006, Cole (Georgetown University professor and the legal affairs correspondent for The Nation) and Dempsey, current policy director for the CDT23 seek to "cogently criticize the Patriot Act and the full range of executive measures violating civil liberties at home and abroad since 9/11"24 by examining how the Bush administration is repeating mistakes made by previous administrations and how the expansion of powers in government agencies is both uncalled for and undesirable. Through the course of my research I discovered that sixteen other sources cite this book (including the
one above), indicating its influence on the topic.25 Gore Vidal noted that the book was "most useful... on a delicate subject."26 Critics have claimed that is alarmist in nature and provides very narrow solutions. 27 This book was particularly valuable in comparing the Patriot Act with the very beginning of federal spying from anti-communist movements in the 1950s to civil rights activists and other government critics in the 1960s up to the 1990s.28
D. Analysis
The Patriot Act, which permits a vast expansion of surveillance within U.S. borders, including collecting financial and personal records, and allowing the monitoring of citizens without their knowledge, has ten titles covering topics ranging from an increase in the FBI's annual budget to authorizing the interception of all forms of communication.29 According to the White House, it has "accomplished exactly what it was designed to do... detect terrorist cells, disrupt terrorist plots and save American lives." 30 The Bush Administration announced it aided law enforcement in breaking up terrorist cells and prosecuting terrorist operates in various states 31 by authorizing "vital information sharing to help law enforcement and intelligence officials connect the dots before terrorist strikes" 32 eliminating "double standards by allowing agents to pursue terrorist with the same tools they use against other criminals",33 whilst helping law enforcement "adapt the law to modern technology."34
Opponents argue that the Act is another Yalta, so vague it is open to any interpretation, to be used by law enforcement to suppress peaceful dissent and not as a tool against organized global terrorism. Numerous articles of the Act have been ruled unconstitutional.35 The ACLU challenged Section 215, 36 arguing it violates "constitutional protections against unreasonable searches and seizures" and "rights to freedom of speech and association" 37 by overriding confidentiality laws allowing the FBI access to all records without presenting "probably cause" or a court order 38, an echo of the 'Palmer' raids.39 Prior to the Patriot Act, the FBI already had the power to retrieve information for intelligence/counterintelligence. 4o But the provision does include limitations 41 and "the number of times [it] has been used to date is zero."42 The Fourth Amendment43 grants citizens the right to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures"44 and arguably breached by Section 215 and continues actions committed from the Palmer raids to COINTELPRO. However it does not guarantee to people the right to be free from unreasonable searches and seizures conducted by private citizens or organizations. The FBI is now authorized to conduct personal investigations without giving 'probable cause' and allowed 'sneak-and-peak' searches without the targets' knowledge. 45 Critics also argue Section 215 breaches the Fifth Amendment by "by failing to require that those who are the subject of Section 215. be told that their privacy has been compromised." 46 But the Fifth Amendment also states that it does not apply in "actual service in time of War or public danger" 47 Few realize that the Constitution gives the right to suspend habeas corpus during invasions or wartime and that the First Amendment only says that the state cannot prevent one from exercising freedom of speech, but does not mean it cannot prosecute.48 When using a document dated 1789, do we use 'unreasonable' as we define it now or then? The terms used to describe and define acts are often up for interpretation. What constitutes as "tangible evidence", "unreasonable", or even "times of war" and who decides? When the Bill of Rights was written, Americans lived in a different world and to apply them today is unrealistic.49 The right to bare arms made sense when British invasion was a threat. Citizens were expected to protect themselves but today "arms" can mean anything from handguns to nuclear weapons. In reviewing such history, civil libertarians question whether the government can be trusted with broader surveillance powers without abusing them.50
Because of the vague wording of the Constitution, many attempts have been made to find the balance between national security and civil liberties. When the Pentagon Papers were released, the Supreme Court ruled that U.S. citizens cannot be wiretapped in the "name of national security" without court orders.51 The Church Committee52 commented that "the Bureau conducted a ... operation aimed squarely at preventing the exercise of First Amendment rights of speech and association, on the theory that preventing the growth of dangerous groups and... ideas would protect ... national security and deter violence." 53 Congress enacted FISA,54 making court orders for electronic surveillance in the name of "national security" mandatory, 55 and FOIA, ensuring that citizens can access documents held by agencies that are not categorized under national security,56 FISA "kept the government from being diverted into investigations guided by politics, religion or ethnicity" 57 but amended by the Patriot Act to include terrorists who are not necessarily backed by a foreign governments while NSL$59 are now being used in a new, expanded way.60
It was recently discovered that the FBI is "guilty of serious misuse of the power to secretly obtain private information under the Patriot Act" 61 It was discovered that NSLS were issued "without proper authority, cited incorrect statutes or obtained information they weren't supposed to" and that "as many as 22% of national security letters were not recorded." 62 Congress has "sternly warned" the FBI that this "serious breach of trust"63 may result in the removal of the powers granted by the Act.
E. Conclusion
Attempts at change have been made, the public disclosure of COINTELPRO brought a brief period where the FBI was under new restrictions, limiting the investigation of political activities, but the reforms did not last. The Act has allowed the FBI more power than ever by removing previously established checks and balances. Some argue that the principles guiding counterterrorism activities were established more than fifty years ago and must be revised to fit technological and social changes. The same can be said about the Bill of Rights. History strongly suggests that the Act is, to a certain extent, unconstitutional or a form of intimidation. Regardless, it is not so much a revolutionary document but something building upon years of American history. Since the Act is so close to the present, we fail to see the bigger picture. With the passing of time, we gain perspective and lose the immediacy and emotion attached to the issue. Many guidelines regarding counterintelligence and international terrorism investigations remain classified and inaccessible to the public, limiting our knowledge. As the world enters a new frontier, with growing technological advances, citizens may be forced to trade civil rights for security.
Books in Print
Works Cited
Ball, Howard. The USA Patriot Act: A Reference Handbook. Santa Barbra: ABC-CLIO, Inc, 2004.
CIVIL L
TERRORISM
Cohen, David B., and John W. Wells. American National Security and Civil Liberties in an Era of Terrorism. New York: Palgrave Macmillian, 2004.
TERRORISM: CONSTITUTION
Cole, David, and James X. Dempsey. Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security. New York: The New P, 2006.
JAMES X. DEMPSEY
DEMOCRACY UNDER PRESSURE
Cummings, Jr, Milton C. Democracy Under Pressure: an
Introduction to the American Political System. 8th ed. Fort Worth: Harcourt College, 1997.
How Patrctic s the
Panio Act?
ANALEZIONE
Etzioni, Amitai. How Patriotic is the Patriot Act? Freedom Versus Security in the Age of Terrorism. New York: Routledge, 2004.
INTELLIGENCE
Lowenthal, Mark M. Intelligence: From Secrets to Policy. Washington, DC: CQ P, 2000.
AMERICATIO WORLD POWER
Johnson, Loch K. America as a World Power: Foreign Policy in a Constitutional Framework. 2nd ed. McGraw-Hill, Inc, 1995.
Websites
"American Masters: Gore Vidal." PBS. 6 Jan. 2007 <http://www.pbs.org/wnet/americanmasters/database/vidal_g.html>.
Arena, Kelli, Kevin Bohn, and Terry Frieden. "Justice Document: Patriot Act Provision Never Used." CNN. 17 Sept. 2003. 27 Mar. 2007 <http://www.cnn.com/2003/LAW/09/17/ashcroft.patriot/index.html>.
Glick, Brian. "War At Home." The Public Eye. 1991. 6 Dec. 2007 <http://www.publiceye.org/liberty/War_at_Home/Glick_Overview.html>.
"CDT- Center for Democracy and Technology." CDT. 12 Jan. 2007 <http://www.cdt.org/>.
"Congressional Hearings." Center for Democracy and Technology. 24 June 2002. Dec.-Jan. 2007
<http://www.cdt.org/security/usapatriot/020124dempsey.shtml>.
"COINTELPRO." Paul Wolf's Home Page. Fall 2006 <http://www.icdc.com/~paulwolf/cointelpro/cointel.htm>.
Fletcher, George P. "THE CLICHÉ THAT "THE CONSTITUTION IS NOT a SUICIDE PACT"" FindLaw. 07 Jan. 2003. 15 Mar. 2007 <http://writ.news.findlaw.com/commentary/20030107_fletcher.html>.
"Foreign Intelligence Surveillance Act of 1978." Major Acts of Congress. The Gale Group, Inc, 2004. Answers.com 19 Mar. 2007.
<http://www.answers.com/topic/foreign-intelligence-surveillance-act-of-1978>
Grove, Tyler. "Civil Rights- Wex." Cornell Law School. 10 Oct. 2006. 23 Mar. 2007 <http://www.law.cornell.edu/wex/index.php/Civil_rights>.
Holmes, Stephen. "Perilous Times: Free Speech in Wartime From the Sedition Act of 1798 to the War on Terrorism." Powell's Books. 24 Feb. 2005. 20 Mar. 2007 <http://www.powells.com/review/2005_02_24>.
Hudson Jr, David L. "Supreme Court Said No to Prior Restraints on Press 25 Years Ago." First Amendment Center. 28 Aug. 2001. 20 Mar. 2007
<http://www.firstamendmentcenter.org/analysis.aspx?id=4683>.
"Information Sharing, Patriot Act Vital to Homeland Security." The White House. 20 Apr. 2004. 20 Mar. 2007
<http://www.whitehouse.gov/news/releases/2004/04/20040420-2.html>.
"Is AEDPA Unconstitutional?" Supreme Court of the United States Blog. 05 Mar. 2005. 20 Mar. 2007
<http://www.scotusblog.com/movabletype/archives/2005/05/is_aedpa_uncons
.html>.
Lewis, Norm. "Librarians Lead Charge Against Expanded Surveillance Powers in the Patriot Act." Skagit Valley Herald. 13 May 2004. 18 Mar. 2007 <http://www.skagitvalleyherald.com/articles/2004/06/13/patriot/patrioto2.txt
Quijano, Elaine, and Kelli Arena. "Audit: FBI's Patriot Act Snooping Broke Rules." CNN. 09 Mar. 2007. 09 Mar. 2007
<http://www.cnn.com/2007/LAW/03/09/security.letters/index.html?xid=rss-
nation>.
Olson-Raymer, Gayle. "An American Case Study: From COINTELPRO to the Patriot Act." 10 Nov. 2007
<http://www.humboldt.edu/~go1/terrorism/unit3/cointelpro.html>.
"Reform the Patriot Act I Section 215." ACLU. Winter 2006 <http://action.aclu.org/reformthepatriotact/215.html>.
"Statement of U.S. Senator Russ Feingold At the Press Conference on the SAFE Act." 15 Oct. 2003. 27 Mar. 2007
<http://feingold.senate.gov/~feingold/statements/03/10/2003A15905.html>.
"Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security..." Law Research Guide. 20 Mar. 2007 <http://www.lawresearchguide.com/p/product_1565849396.php>.
"Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security (Revised & Updated)." 100Fires. 27 Mar. 2007 <http://www.100fires.com/ >.
"The Court and Basic Rights." The History of the Supreme Court. 15 Mar. 2007 <http://www.historyofsupremecourt.org/history/basicrights/timeline.htm>.
"The USA Patriot Act." Electronic Privacy Information Center. 17 Nov. 2005. Winter 2006 <http://www.epic.org/privacy/terrorism/usapatriot/>.
"USA Patriot Act." The White House, 20 Jan. 2007 <http://www.whitehouse.gov/infocus/patriotact/>.
"USA Patriot Act of 2001." ACLU ProCon. Org. Fall 2006 <http://www.acluprocon.org/bin/procon/procon.cgi?database=5-J-
Subs.db&command-viewone&id=4&op=t&ct=d>.
Appendix A- Bill of Rights
Congress
Amendment V
United States
Appendix
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Amendment IV
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 search, and the persons or things to be seized.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Appendix B- The Patriot Act Section 215
SEC. 215. ACCESS TO RECORDS AND OTHER ITEMS UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT.
Title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.) is amended by striking sections 501 through 503 and inserting the following:
SEC. 501. ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE AND INTERNATIONAL TERRORISM INVESTIGATIONS.
(a)(1) The Director of the Federal Bureau of Investigation or a designce of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.
`(2) An investigation conducted under this section shall--
`(A) be conducted under guidelines approved by the Attorney General under Executive Order 12333 (or a successor order); and `(B) not be conducted of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States.
`(b) Each application under this section-- `(1) shall be made to--
(A) a judge of the court established by section 103(a); or `(B) a United States Magistrate Judge under chapter 43 of title 28, United States Code, who is publicly designated by the Chief Justice of the United States to have the power to hear applications and grant orders for the production of tangible things under this section on behalf of a judge of that court; and
`(2) shall specify that the records concerned are sought for an authorized investigation conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.
(c)(1) Upon an application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified, approving the release of records if the judge finds that the application meets the requirements of this section.
`(2) An order under this subsection shall not disclose that it is issued for purposes of an investigation described in subsection (a).
`(d) No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.
`(e) A person who, in good faith, produces tangible things under an order pursuant to this section shall not be liable to any other person for such production. Such production shall not be deemed to constitute a waiver of any privilege in any other proceeding or context.
`SEC. 502. CONGRESSIONAL OVERSIGHT.
`(a) On a semiannual basis, the Attorney General shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate concerning all requests for the production of tangible things under section 402.
`(b) On a semiannual basis, the Attorney General shall provide to the Committees on the Judiciary of the House of Representatives and the Senate a report setting forth with respect to the preceding 6-month period--
`(1) the total number of applications made for orders approving requests for the production of tangible things under section 402; and
`(2) the total number of such orders either granted, modified, or denied.'.
