Editor's Note: The USA Patriot Act has generated intense debate since it
was enacted almost three years ago. This series examines the
implications of some of its more controversial sections.
The USA Patriot Act, passed just six weeks after the Sept. 11 attacks,
is an acronym for the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act.
It comprises 10 chapters or titles; each title is broken into sections;
in all, there are 158 sections and 342 pages.
The act strengthens the hand of federal law enforcement agencies and
weakens some individual rights. This tilting of the balance between
government powers and civil rights has spawned arguments across the land.
Nationally more than 300 communities have passed anti-Patriot Act
resolutions, as have the states of Alaska, Hawaii, Vermont and Maine. A
similar resolution in Rhode Island died when the House Judiciary
Committee did not vote on it. But six municipalities in Rhode Island,
including Providence, have gone on record as opposed to sections of the
act.
Opponents of the Patriot Act generally do not attack all 158 sections of
the law, but object to specific areas that they say could abridge civil
rights. The American Civil Liberties Union, for example, lists 10
sections that it finds objectionable.
Critics claim that the Patriot Act violates Article III of the U.S.
Constitution and the First, Fourth, Fifth, Sixth and Eighth Amendments
of the Bill of Rights.
A federal judge in Los Angeles has found that Section 810 of the Patriot
Act, which makes it a crime to provide "material support" to a
terrorist, is unconstitutional because it is too vague.
The Patriot Act, of course, also has its defenders, notably President
Bush, the Department of Justice and locally, acting U.S. Attorney Craig
Moore. On a Web site dedicated to the defense of the Patriot Act,
www.lifeandliberty.gov, the Department of Justice argues that the Patriot
Act "simply took existing legal principles and retrofitted them" to
fight terrorism.
ONE OF ITS most controversial sections widens the government's powers to
conduct secret surveillance.
In 1967 the United States Supreme Court twice ruled that the Fourth
Amendment restricted the government's ability to eavesdrop on Americans.
The court said that in cases of national security or suspected criminal
activity, the government could eavesdrop -- but only if it obtained a
warrant from a judge.
Congress responded to the court's rulings by passing Title III of the
Omnibus Crime Control and Safe Streets Act of 1968. This was an attempt
to balance Americans' right to privacy with the government's duty to
protect public safety.
Title III allowed the government to spy on Americans only if agents
suspected a person of engaging in any one of a plethora of serious
crimes spelled out in the act.
Still, the Department of Justice had to seek a court order to secretly
capture conversations through electronic surveillance, such as tapping
telephone conversations or clandestinely filming a suspect's meetings.
Court orders obtained under Title III limited the duration and scope of
the surveillance, as well as the conversations that authorities could
seize.
People whose conversations had been monitored would be notified as soon
as the order expired.
TITLE III limited government surveillance of Americans; but shortly
after that law passed, two federal courts created exceptions to it.
The courts said that government agents did not need a warrant to conduct
surveillance if the "primary purpose" of the spying was to gather
intelligence information about foreigners.
The District of Columbia circuit court disagreed; in 1976 the D.C. court
ruled that essentially "all warrantless surveillance is unreasonable."
In 1976 a scandal broke: a commission headed by U.S. Sen. Frank Church,
D-Idaho, found that the FBI, CIA, IRS and Army Intelligence services had
kept secret files on more than 500,000 U.S. citizens, illegally opened
nearly 250,000 pieces of first-class mail (including the mail of
University of Rhode Island mathematics professor Rodney Driver), and
secretly harassed some groups and citizens -- such as war protesters and
Dr. Martin Luther King Jr.
These spying programs were sometimes designed to destroy the reputations
of people who challenged government policy. The commission documented a
pattern of abuses dating through the 1950s, '60s and '70s.
The agencies committing those abuses were not enforcing criminal laws;
they were seeking intelligence. There is a critical distinction between
the two. Some federal agents seek information about suspected criminals
in order to enforce laws; others seek information about suspected spies
for intelligence about potential enemies of the United States.
As far as the courts are concerned, law enforcement officials and
intelligence agents work in different worlds. Criminal suspects have
constitutional rights designed to keep agents from being overzealous in
enforcing the law; foreigners plotting against the United States do not
enjoy the same constitutional protections.
Congress tried to clarify the rules for government spying within the
United States by passing FISA, the Federal Intelligence Surveillance Act
of 1978.
FISA was intended to be a compromise that would give federal officials
the tools for foreign intelligence gathering, while continuing to
protect Americans against invasions of privacy.
FISA CREATED a new and secret court in 1978 called the Foreign
Intelligence Surveillance Court, or FISC.
The FISC is a forum for federal agents to obtain permission to collect
"foreign intelligence" without being bound by the strictures of Title
III.
Unlike other courts, the FISC does not reveal its legal opinions,
creating what the Reporters Committee for Freedom of the Press calls "a
secret body of case law unprecedented in American jurisprudence."
Since 1978, federal agents who have wanted to spy on people for foreign
intelligence purposes -- as opposed to criminal enforcement -- would
only have to certify to the secret court that the primary purpose of the
surveillance was to obtain foreign intelligence.
In 1995, President Clinton's executive order 12949 expanded the FISC's
powers to include secret authorization of searches.
THE USA PATRIOT Act adds four new judges to the secret court, increasing
the roster of judges from 7 to 11, significantly expanding the FISA's
powers by changing two words of the law.
Section 218 of the Patriot Act creates a broader category for covert
surveillance.
The Patriot Act also amends the National Security Act of 1947 to
redefine foreign intelligence to include, in its broadest meaning, any
information that relates to the foreign affairs of the United States.
Now, as long as the attorney general's office "certifies" or swears that
foreign intelligence is a primary part of an investigation, agents may
apply to use warrantless electronic surveillance -- even for a criminal
investigation of Americans.
Civil libertarians object to this change in Section 218; they fear that
the changes make it too easy to circumvent the restrictions of Title III
and use FISA to legally spy on Americans.
The Patriot Act also expands the life of a FISC-approved surveillance
warrant from 30 days to as long as one year. It also drops the
requirement that targets of surveillance be notified that their
communications were intercepted.
For 26 years, the FISC has operated in secrecy. At first, its authority
was limited to issuing warrants for surveillance.
In its first year, 1978, this court issued 199 warrants; last year, it
approved more than 1,700 warrants to conduct secret searches, wire
tappings or spying operations.
At its inception, the secret court's authority was limited to
authorizing surveillance requests in cases of suspected espionage.
Through the years its authority has expanded to include approval of
physical searches, and of requests to tap telephones and computer lines.
The Patriot Act has significantly expanded those existing powers; now,
foreign intelligence only has to be "a purpose" for using the secret
court, not "the primary purpose."
The Patriot act has also granted a new power to FBI agents using the
secret court: the authority, under Section 215, to obtain "any tangible
thing" -- literally anything, from anyone, on demand.
Staff writer Gerald M. Carbone may be reached at
gcarbone [at] projo.com or (401) 277-7434.
TOMORROW: Book dealers, librarians, newspapers, doctors, landlords --
virtually anyone who keeps records -- must yield them on demand.
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