Questions that Leftists/Liberals Seemingly refuse to Answer

[Warhorse]

If you have an attention span long enough to read this in it's entirity, you will have your question about 25 rights, answered. Oh the answer is yes. We have lost some very very serious rights.

The USA PATRIOT Act:
What's So Patriotic About Trampling on the Bill of Rights?
1
Nancy Chang, Senior Litigation Attorney
Center for Constitutional Rights
666 Broadway, 7th Floor
New York, NY 10012
November 2001
Just six weeks after the September 11 terrorist attacks on the World Trade Center and the
Pentagon, a jittery Congress-exiled from its anthrax-contaminated offices and confronted with
warnings that more terrorist assaults were soon to come-capitulated to the Bush Administration's
demands for a new arsenal of anti-terrorism weapons. Over vigorous objections from civil liberties
organizations on both ends of the political spectrum, Congress overwhelmingly approved the
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act, better known by its acronym, the USA PATRIOT Act.
2
The House vote
was 356-to-66, and the Senate vote was 98-to-1. Along the way, the Republican House
leadership, in a raw display of force, jettisoned an anti-terrorism bill that the House Judiciary
Committee had unanimously approved and that would have addressed a number of civil liberties
concerns.
3
The hastily-drafted, complex, and far-reaching legislation spans 342 pages. Yet it was
passed with virtually no public hearing or debate, and it was accompanied by neither a
conference nor a committee report. On October 26, the Act was signed into law by a triumphant
President George W. Bush.
4
I. THE USA PATRIOT ACT CONFERS VAST AND UNCHECKED POWERS TO THE
EXECUTIVE BRANCH
Although a number of its provisions are not controversial, the USA PATRIOT Act nevertheless
stands out as radical in its design. To an unprecedented degree, the Act sacrifices our political
freedoms in the name of national security and upsets the democratic values that define our nation
by consolidating vast new powers in the executive branch of government. The Act enhances the
executive's ability to conduct surveillance and gather intelligence, places an array of new tools at
the disposal of the prosecution, including new crimes, enhanced penalties, and longer statutes of
limitations, and grants the Immigration and Naturalization Service (INS) the authority to detain
immigrants suspected of terrorism for lengthy, and in some cases indefinite, periods of time. And
at the same time that the Act inflates the powers of the executive, it insulates the exercise of
these powers from meaningful judicial and Congressional oversight.
Although a number of its provisions are not controversial, the USA PATRIOT Act nevertheless
stands out as radical in its design. To an unprecedented degree, the Act sacrifices our political
freedoms in the name of national security and upsets the democratic values that define our nation
by consolidating vast new powers in the executive branch of government. The Act enhances the
executive's ability to conduct surveillance and gather intelligence, places an array of new tools at
the disposal of the prosecution, including new crimes, enhanced penalties, and longer statutes of
limitations, and grants the Immigration and Naturalization Service (INS) the authority to detain
immigrants suspected of terrorism for lengthy, and in some cases indefinite, periods of time. And
at the same time that the Act inflates the powers of the executive, it insulates the exercise of
these powers from meaningful judicial and Congressional oversight.
It remains to be seen how the executive will wield its new authority. However, if the two months
that have elapsed since September 11 serve as a guide, we should brace ourselves for a flagrant
disregard of the rule of law by those charged with its enforcement. Already, the Department of
Justice (DOJ) has admitted to detaining more than 1,100 immigrants, not one of whom has been
charged with committing a terrorist act and only a handful of whom are being held as materialwitnesses to the September 11 hijackings.
5
Many in this group appear to have been held for
extended time periods under an extraordinary interim regulation announced by Attorney General
John Ashcroft on September 17 and published in Federal Register on September 20.
6
This
regulation sets aside the strictures of due process by permitting the INS to detain aliens without
charge for 48 hours or an uncapped "additional reasonable period of time" in the event of an
"emergency or other extraordinary circumstance." Also, many in this group are being held without
bond under the pretext of unrelated criminal charges or minor immigration violations, in a modern-day
form of preventive detention. Chillingly, the Attorney General's response to the passage of
the USA PATRIOT Act was not a pledge to use his new powers responsibly and guard against
their abuse, but instead was a vow to step up his detention efforts. Conflating immigrant status
with terrorist status, he declared: "Let the terrorists among us be warned, if you overstay your
visas even by one day, we will arrest you."
7
Furthermore, the Administration has made no secret of its hope that the judiciary will accede to its
broad reading of the USA PATRIOT Act just as pliantly as Congress acceded to its broad
legislative agenda. In a letter sent to key Senators while Congress was considering this
legislation, Assistant Attorney General Daniel J. Bryant, of DOJ's Office of Legislative Affairs,
openly advocated for a suspension of the Fourth Amendment's warrant requirement in the
government's investigation of foreign national security threats.
8
The Bryant letter brazenly
declares:
As Commander-in-Chief, the President must be able to use whatever means
necessary to prevent attacks upon the United States; this power, by implication,
includes the authority to collect information necessary to its effective exercise. . .
The government's interest has changed from merely conducting foreign
intelligence surveillance to counter intelligence operations by other nations, to
one of preventing terrorist attacks against American citizens and property within
the continental United States itself. The courts have observed that even the use
of deadly force is reasonable under the Fourth Amendment if used in self-defense
or to protect others. . . Here, for Fourth Amendment purposes, the right
to self-defense is not that of an individual, but that of the nation and its citizens. .
. If the government's heightened interest in self-defense justifies the use of
deadly force, then it certainly would also justify warrantless searches.
9
II. SUSPENSION OF CIVIL LIBERTIES
The Administration's blatant power grab, coupled with the wide array of anti-terrorism tools that
the USA PATRIOT Act puts at its disposal, portends a wholesale suspension of civil liberties that
will reach far beyond those who are involved in terrorist activities. First, the Act places our First
Amendment rights to freedom of speech and political association in jeopardy by creating a broad
new crime of "domestic terrorism," and by denying entry to non-citizens on the basis of ideology.
Second, the Act will reduce our already lowered expectations of privacy under the Fourth
Amendment by granting the government enhanced surveillance powers. Third, non-citizens will
see a further erosion of their due process rights as they are placed in mandatory detention and
removed from the United States under the Act. Political activists who are critical of our
government or who maintain ties with international political movements, in addition to immigrants,
are likely to bear the brunt of these attacks on our civil liberties.
A. Silencing Political Dissent
Section 802 of the USA PATRIOT Act creates a federal crime of "domestic terrorism" that broadly
extends to "acts dangerous to human life that are a violation of the criminal laws" if they "appear
to be intended…to influence the policy of a government by intimidation or coercion," and if they
"occur primarily within the territorial jurisdiction of the United States."
10
Because this crime iscouched in such vague and expansive terms, it may well be read by federal law enforcement
agencies as licensing the investigation and surveillance of political activists and organizations
based on their opposition to government policies. It also may be read by prosecutors as licensing
the criminalization of legitimate political dissent. Vigorous protest activities, by their very nature,
could be construed as acts that "appear to be intended…to influence the policy of a government
by intimidation or coercion." Further, clashes between demonstrators and police officers and acts
of civil disobedience-even those that do not result in injuries and are entirely non-violent-could be
construed as "dangerous to human life" and in "violation of the criminal laws." Environmental
activists, anti-globalization activists, and anti-abortion activists who use direct action to further
their political agendas are particularly vulnerable to prosecution as "domestic terrorists."
In addition, political activists and the organizations with which they associate may unwittingly find
themselves the subject of unwanted government attention in the form of surveillance and other
intelligence-gathering operations. The manner in which the government implements the Act must
be carefully monitored to ascertain whether activists and organizations are being targeted
selectively for surveillance and prosecution based on their opposition to government policies. The
First Amendment does not tolerate viewpoint-based discrimination.
11
Furthermore, Section 411 of the Act poses an ideological test for entry into the United States that
takes into consideration core political speech. Representatives of a political or social group
"whose public endorsement of acts of terrorist activity the Secretary of State has determined
undermines United States efforts to reduce or eliminate terrorist activities" can no longer gain
entry into the United States.
12
Entry is also barred to non-citizens who have used their "position of
prominence within any country to endorse or espouse terrorist activity," if the Secretary of State
determines that their speech "undermines United States efforts to reduce or eliminate terrorist
activities."
13
B. Tolling the Death-Knell on Privacy
The USA PATRIOT Act
14
launches a three-pronged assault on our privacy. First, the Act grants
the executive branch unprecedented, and largely unchecked, surveillance powers, including the
enhanced ability to track email and Internet usage, conduct sneak-and-peek searches, obtain
sensitive personal records, monitor financial transactions, and conduct nationwide roving
wiretaps. Second, the Act permits law enforcement agencies to circumvent the Fourth
Amendment's requirement of probable cause when conducting wiretaps and searches that have,
as "a significant purpose," the gathering of foreign intelligence. Third, the Act allows for the
sharing of information between criminal and intelligence operations and thereby opens the door to
a resurgence of domestic spying by the Central Intelligence Agency.
1. Enhanced Surveillance Powers
By and large, Congress granted the Administration its longstanding wish list of enhanced
surveillance tools, coupled with the ability to use these tools with only minimal judicial and
Congressional oversight. In its rush to pass an anti-terrorism bill, Congress failed to exact in
exchange a showing that these highly intrusive new tools are actually needed to combat terrorism
and that the Administration can be trusted not to abuse them.
The recent decision in Kyllo v. United States
15
serves as a pointed reminder that once a Fourth
Amendment protection has been eroded, the resulting loss to our privacy is likely to be
permanent. In Kyllo, the Supreme Court concluded that the use of an advanced thermal detection
device that allowed the police to detect heat emanating from marijuana plants growing inside the
defendant's home constituted a "search" for the purposes of the Fourth Amendment and was
presumptively unreasonable without a warrant. The Court placed great weight on the fact that the
device was new, "not in general public use," and had been used to "explore details of a private
home that would previously have been unknowable without physical intrusion."
16
Implicit in the
Court's holding is the principle that once a technology is in general public use and its capabilitiesare known, a reasonable expectation of privacy under the Fourth Amendment may no longer
attach.
Several of the Act's enhanced surveillance tools, and the civil liberties concerns they raise, are
examined below.
a. Sneak and Peek Searches
Section 213 of the Act authorizes federal agents to conduct "sneak and peek searches," or covert
searches of a person's home or office that are conducted without notifying the person of the
execution of the search warrant until after the search has been completed. Section 213
authorizes delayed notice of the execution of a search warrant upon a showing of "reasonable
cause to believe that providing immediate notification… may have an adverse result."
17
Section
213 also authorizes the delay of notice of the execution of a warrant to conduct a seizure of items
where the court finds a "reasonable necessity" for the seizure.
Section 213 contravenes the "common law 'knock and announce' principle," which forms an
essential part of the Fourth Amendment's reasonableness inquiry.
18
When notice of a search is
delayed, one is foreclosed from pointing out deficiencies in the warrant to the officer executing it,
and from monitoring whether the search is being conducted in accordance with the warrant. In
addition, Section 213, by authorizing delayed notice of the execution of a warrant to conduct a
seizure of items, contravenes Rule 41(d) of the Federal Rules of Criminal Procedure, which
requires that, "The officer taking property under the warrant shall give to the person from whom or
from whose premises the property was taken a copy of the warrant and a receipt for the property
taken or shall leave the copy and receipt at the place from which the property was taken."
Under Section 213, notice may be delayed for a "reasonable period." Already, DOJ has staked
out its position that a "reasonable period" can be considerably longer than the seven days
authorized by the Second Circuit Court of Appeals in United States v. Villegas,
19
and by the Ninth
Circuit Court of Appeals in United States v. Freitas.
20
DOJ states in its Field Guidance on New
Authorities (Redacted) Enacted in the 2001 Anti-Terrorism Legislation
21
that "[a]nalogy to other
statutes suggest [sic] that the period of delay could be substantial if circumstances warrant," and
cites in support of this proposition a case that found a 90-day delay in providing notice of a
wiretap warrant to constitute "a reasonable time." Notably, Section 213 is not limited to terrorism
investigations, but extends to all criminal investigations, and is not scheduled to expire.
b. Access to Records in International Investigations
Section 215
22
is one of several provisions in the USA PATRIOT Act that relaxes the
requirements, and extends the reach, of the Foreign Intelligence Surveillance Act of 1978
(FISA).
23
Under Section 215, the Director of the FBI or a designee as low in rank as an Assistant
Special Agent in Charge may apply for a court order requiring the production of "any tangible
things (including books, records, papers, documents, and other items)" upon his written
statement that these items are being sought for an investigation "to protect against international
terrorism or clandestine intelligence activities."
24
A judge presented with an application under
Section 215 is required to enter an order if he "finds that the application meets the requirements
of this section."
25
Notably absent from Section 215 is the restriction in the FISA provision it amends that had
required the government to specify in its application for a court order that "there are specific and
articulable facts giving reason to believe that the person to whom the records pertain is a foreign
power or an agent of a foreign power."
26
Now, under Section 215, the FBI may obtain sensitive
personal records by simply certifying that they are sought for an investigation "to protect against
international terrorism or clandestine intelligence activities." The FBI need not suspect the person
whose records are being sought of any wrongdoing. Furthermore, the class of persons whose
records are obtainable under Section 215 is no longer limited to foreign powers and their agents,but may include United States citizens and lawful permanent residents, or "United States
persons" in the parlance of the FISA.
27
While Section 215 bars investigations of United States
persons "solely upon the basis of activities protected by the first amendment to the Constitution,"
it does nothing to bar investigations based on other activities that tie them, no matter how loosely,
to an international terrorism investigation.
28
The FISA provision that was amended by Section 215 had been limited in scope to "records" in
the possession of "a common carrier, public accommodation facility, physical storage facility, or
vehicle rental facility."
29
Section 215 extends beyond "records" to "tangible things" and is no
longer limited in terms of the entities from whom the production of tangible things can be
required.
30
A Congressional oversight provision will require the Attorney General to submit semi-annual
reports on its activities under Section 215.
31
Section 215 is scheduled to expire on
December 31, 2005.
c. Tracking Internet Usage
Under Section 216 of the Act, courts are required to order the installation of a pen register and a
trap and trace device
31
to track both telephone and Internet "dialing, routing, addressing and
signaling information"
32
anywhere within the United States when a government attorney has
certified that the information to be obtained is "relevant to an ongoing criminal investigation."
33
Section 216 states that orders issued under its authority cannot be permit the tracking of the
"contents of any wire or electronic communications." However, in the case of email messages
and Internet usage, the Act does not address the complex question of where the line should be
drawn between "dialing, routing, addressing and signaling information" and "content." Unlike
telephone communications, where the provision of dialing information does not run the risk of
revealing content,
35
email messages move together in packets that include both address and
content information. Also, the question of whether a list of web sites and web pages that have
been visited constitutes "dialing, routing, addressing and signaling information" or "content" has
yet to be resolved.
By providing no guidance on this question, Section 216 gives the government wide latitude to
decide what constitutes "content." Of special concern is the fact that Section 216 authorizes the
government to install its new Carnivore or DCS1000 system, a formidable tracking device that is
capable of intercepting all forms of Internet activity, including email messages, web page activity,
and Internet telephone communications.
36
Once installed on an Internet Service Provider (ISP),
Carnivore devours all of the communications flowing through the ISP's network-not just those of
the target of surveillance but those of all users-and not just tracking information but content as
well. The FBI claims that through the use of filters, Carnivore "limits the messages viewable by
human eyes to those which are strictly included within the court order."
37
However, neither the
accuracy of Carnivore's filtering system, nor the infallibility of its human programers, has been
demonstrated. While Section 216 requires the government to maintain a record when it utilizes
Carnivore, this record need not be provided to the court until 30 days after the termination of the
order, including any extensions of time.
38
Section 216 is not scheduled to expire.
2. Allowing Law Enforcement Agencies to Evade the Fourth Amendment's Probable
Cause Requirement
Perhaps the most radical provision of the USA PATRIOT Act is Section 218, which amends
FISA's wiretap and physical search provisions. Under FISA, court orders permitting the executive
to conduct surreptitious foreign intelligence wiretaps and physical searches may be obtained
without the showing of probable cause required for wiretaps and physical searches in criminal
investigations. Until the enactment of the Act, orders issued under FISA's lax standards were
restricted to situations where the gathering of foreign intelligence information was "the purpose"
of the surveillance.
39
Under Section 218, however, orders may be issued under FISA's lax standards where the
primary purpose of the surveillance is criminal investigation, and the gathering of foreignintelligence information constitutes only "a significant purpose"of the surveillance.
40
As a result,
Section 218 allows law enforcement agencies conducting a criminal investigation to circumvent
the Fourth Amendment whenever they are able to claim that the gathering of foreign intelligence
constitutes "a significant purpose." In doing so, Section 218 gives the FBI a green light to resume
domestic spying on government "enemies"-a program that reached an ugly apex under J. Edgar
Hoover's directorship.
In the seminal case of United States v. United States District Court for the Eastern District of
Michigan (Keith),
41
the Supreme Court rejected President Richard Nixon's ambitious bid for the
unchecked executive power to conduct warrantless wiretaps when investigating national security
threats posed by domestic groups with no foreign ties. The Court recognized that national
security cases reflect "a convergence of First and Fourth Amendment values not present in cases
of 'ordinary' crime."
42
With respect to the First Amendment, the Court wisely observed that
"[o]fficial surveillance, whether its purpose be criminal investigation or ongoing intelligence
gathering, risks infringement of constitutionally protected privacy of speech" because of "the
inherent vagueness of the domestic security concept… and the temptation to utilize such
surveillances to oversee political dissent."
43
With respect to the Fourth Amendment, the Court acknowledged the constitutional basis for the
President's domestic security role, but refused to exempt the President from the Fourth
Amendment's warrant requirement.
44
The Court explained that the oversight function assumed by
the judiciary in its review of applications for warrants "accords with our basic constitutional
doctrine that individual freedoms will best be preserved through a separation of powers and
division of functions among the different branches and levels of Government."
45
Notably, the Keith Court declined to examine "the scope of the President's surveillance power
with respect to the activities of foreign powers, within or without this country."
46
To fill the vacuum
left in the wake of the Keith decision, in 1978 Congress enacted FISA, which is premised on the
assumption that Fourth Amendment safeguards are not as critical in foreign intelligence
investigations as they are in criminal investigations. The Supreme Court has yet to rule on FISA's
constitutionality. However, both the Fourth and Ninth Circuits have cautioned that applying FISA's
lax standards to criminal investigations raises serious Fourth Amendment concerns. In United
States v. Truong Dinh Hung, the Fourth Circuit held that "the executive should be excused from
securing a warrant only when the surveillance is conducted 'primarily' for foreign intelligence
reasons," because "once surveillance becomes primarily a criminal investigation, the courts are
entirely competent to make the usual probable cause determination, and because, importantly,
individual privacy interests come to the fore and government foreign policy concerns recede when
the government is primarily attempting to form the basis for a criminal prosecution."
47
In a similar
vein, the Ninth Circuit held in United States v. Johnson that "the investigation of criminal activity
cannot be the primary purpose of [FISA] surveillance" and that "[FISA] is not to be used as an
end-run around the Fourth Amendment's prohibition of warrantless searches."
48
The constitutionality of Section 218 is in considerable doubt. The extremist position staked out by
DOJ in the Bryant Letter, which argues that "f the government's heightened interest in self-defense
justifies the use of deadly force, then it certainly would also justify warrantless searches,"
would undermine the separation of powers doctrine.
49
Until the Supreme Court weighs in on this
matter, the government will find itself in a quandary each time it seeks to prosecute a criminal
defendant based on evidence that, although properly obtained under the lesser showing required
by Section 218, does not meet the probable cause showing required by the Fourth Amendment.
Should the government decide to base prosecutions on such evidence, it will run the risk that the
evidence will be suppressed under the Fourth Amendment exclusionary rule.
50
Section 218 is
scheduled to expire on December 31, 2005.