GPSOLO July/August 2007
The Patriot Act
Every American grappled with terrorism the day we witnessed the crumbling structures on September 11, 2001. Anger and anguish soaked the nation while a bottomless debate began over how this atrocity could have happened on our own soil.
The collective federal government encapsulated its own reaction by swiftly passing the USA Patriot Act during a bewildering six-week congressional fury. President Bush signed the act into law on October 26, 2001.
Justified by many and loathed by others, the Patriot Act has withstood political attacks and public scrutiny and remains a lightning rod for constitutional struggles. This article presents an overview of the controversial legislation and discussion of possible legal consequences for attorneys defending against it.
The "USA Patriot Act" is actually the clever acronym for the more bulky "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act." The act’s purpose statement explains that it is intended to "deter and punish terrorist acts in the United States and around the world" and to "enhance law enforcement investigatory tools, and for other purposes."
The Patriot Act contains ten sections that cover hundreds of pages of text. It amends at least 15 existing statutes, including the Electronic Communications Privacy Act, the Immigration and Nationality Act, and the Foreign Intelligence Surveillance Act. Several provisions of the act that deal with surveillance were originally scheduled to sunset on December 31, 2005. The expiration date for these provisions was extended several times. Congress renewed the act with slight changes, and the amended act was signed into law by President Bush on March 9, 2006.
Freedom vs. Safety
The true breadth and reach of the Patriot Act is difficult to ascertain. First, because of the act’s essential rationale-to root out and prevent future terrorist attacks-the argument has been made that actions under the statute must be conducted entirely in secret lest terrorists be made much more successful by knowing when and how they are being watched.
Second, a profusion of misinformation about its powers has been fostered by both supporters and detractors. This is what makes our country great-extreme viewpoints can be put about in public circles without fear of governmental repercussions-but it can also make for confusion. On one side of the debate are lamentations that the act represents the end of civil liberties as we know them. On the other end are assurances that the act finally empowers law enforcement to successfully protect the country. And because you would be hard-pressed to find a U.S. citizen who has actually read the act’s text, both of these extreme viewpoints pervade the national consciousness.
What we can certainly agree upon, however, is that we live in a time of unprecedented fear. On September 10, 2001, few could conceive of the horrific catastrophe that would follow. We now face an enemy and an ideology intent upon the deaths of U.S. citizens.
Until the war on terrorism, the largest threats that law enforcement dealt with on home soil were murder, money laundering, bank robbery, the international drug trade, and the sporadic forays of a Unabomber-like outlaw. Civil liberties have always enjoyed deference in the United States-we inherently do not trust government intrusion or secret investigations. Providing balance is the role of the courts, which weigh the fundamental protections of each citizen with the paramount need for new tools that law enforcement can use to protect us.
"Need to Know" (Section 213)
One of the most controversial provisions of the Patriot Act deals with the Fourth Amendment protection against "unreasonable searches and seizures." Under the amendment, law enforcement officials may not search or seize property unless they can show probable cause to a judge, who will issue a warrant. Officials are also required to give notice before conducting a search. This is common knowledge-every TV cop yells "Police! Open Up!" before busting through the door and cuffing the bad guys.
These checks and balances on law enforcement have worked well for many years, even when exceptions were necessary for issues of national security. In 1978 Congress passed the Foreign Intelligence Surveillance Act (FISA), which provided a broad swath of power for officials protecting our national security (as opposed to domestic law enforcement). The rationale for the act was that federal security officers investigating foreign powers or their agents that meant to do us harm should have more leeway in activities relating to "sneak-and-peek" warrants that did not require strict notice. Within that narrow exception, the balance tipped in favor of fewer civil liberties to protect the greater society.
The Patriot Act builds upon the original FISA model to provide expanded exceptions to the notice requirement if the court finds that "providing immediate notification of the execution of the warrant may have an adverse result." Notice instead is required only within a reasonable period of the warrant’s execution, which "may thereafter be extended by the court for good cause shown." When a law enforcement official can show reasonable cause that giving notice to a suspect would let the suspect escape or cease terrorist activities, the agents may bust through first, announce later.
The basic premise behind this change has been with us for quite some time but has never before seemed this close to home. According to the Patriot Act’s drafters, FISA was great when the CIA was tracking Cold War spies-no one wanted spies to know we were on their trail-but today, the enemy stays in the hotel room next door and takes flying lessons above our homes.
Readin’ and Rights (Section 215)
Someone should have told the drafters of the Patriot Act that if there’s one group you don’t want to tick off, it’s the librarians. Section 215 permits the FBI to secretly compile personal information about phone calls, video rentals, medical charts, and financial records-as long as such information will protect the country against "international terrorism or clandestine intelligence activities." This personal information may include a list of books you’ve checked out from your local library-the kind of information that industrious librarians don’t like to hand over because the precedent could compromise unfettered access to education.
On a website set up specifically for the Patriot Act (www.lifeandliberty.gov), the Justice Department states that "terrorists and spies have [historically] used libraries to plan and carry out activities that threaten our national security" and that "we should not allow [libraries] to become safe havens for their terrorist or clandestine activities." It then provides examples of how receipts from a hardware store could rat out a person planning to make bombs, or bank records could reveal who’s sending money to terrorists overseas.
Prior to the Patriot Act, business records and other personal information could be obtained only by a grand jury subpoena in criminal matters, or under FISA for purposes of conducting intelligence on foreign agents. The act expands this power so that the FBI can now request records on any citizen-suspect or not, foreign agent or not-as long as its investigation can be tied to protecting the country from international terrorism. The FISA Court (a special court with appointed district court judges created to review applications for authorization of electronic surveillance) simply signs off on the request if all is in order; a showing of evidence or probable cause does not seem to be a requirement.
Although most Americans probably don’t care that the government can track what they buy at Wal-Mart or rent at Blockbuster, Section 215 certainly gives pause to many civil libertarians in this country. Because the investigation must be done in secrecy, you will never know if you or your clients are being "watched."
Broadening the Focus (Sections 206, 214, 216)
Surveillance of suspects is critical to foiling criminal plots, but there is abundant disagreement about the proper tools security agents may use to monitor intelligence activities and the proper extent to which these tools should be employed. Items such as pen registers (which collect phone numbers dialed from a suspect’s telephone), trap-and-trace devices (which monitor incoming calls to a phone), and wiretaps will continue to be heavily used in the war against terrorism.
A pattern that emerges throughout the Patriot Act takes existing narrow exceptions and expands them to additional activities.
- Section 214, for example, amends FISA to allow pen registers and trap-and-trace devices to be used "for any investigation to obtain foreign intelligence information." These particular devices do not necessarily reveal the content of a communication, and Section 214 does explain that investigations will not be "conducted solely upon the basis of activities protected by the First Amendment to the Constitution."
- When FISA was originally drafted in 1978, its language applied to pen registers, for example, used only with telephones, as the Internet was barely contemplated at the time. Section 216 amends FISA so that similar "non-content" information from the Internet such as IP addresses and e-mail "To/From" lines can be easily obtained.
- Section 206 expands the "roving surveillance authority" (in which a wiretap is not tied to a specific phone or computer) to allow security officials to enlist anyone’s help with a wiretap-they are no longer limited to assistance only from common carriers or landlords.
The Homeland (Sections 802, 411, 412, 805)
Section 802 broadened the act’s focus on international terrorism to include a new category, "domestic terrorism." The new version loosely defines domestic terrorism to include activities that
- "involve acts dangerous to human life";
- "occur primarily in the territorial jurisdiction of the U.S."; and
- "appear to be intended to a) intimidate or coerce a civilian population, b) influence the policy of a government, and c) affect the conduct of government by mass destruction, assassination, or kidnapping."
The definition covers many additional activities and could as easily be interpreted to target environmental activists or abortion protestors.
Sections 411 and 412 involve changes to the Immigration and Nationality Act that affect immigrants to this country who arrived after September 11 and thus face stricter scrutiny. Section 411 warns immigrants that they may be deported if they know, associate, endorse, or support known terrorists. Section 412 gives the U.S. Attorney General additional latitude to detain immigrants or aliens in this country if there are "reasonable grounds to believe that the alien . . . is engaged in . . . activity that endangers the national security." It further states that judicial review is not available for these matters, with the exception of the writ of habeas corpus.
Section 805 expands the definition of the criminal offense of "providing material support to terrorists" (18 U.S.C. § 2339A). The phrase "material support or resource" originally covered items such as money, property, training, or lodging; but the revised act adds the phrase "expert advice or assistance." It is this last phrase that should concern attorneys. Anyone suspected of providing "expert advice or assistance" can be held in violation of this section.
Consider the story of Lynne Stewart, an attorney who defended Sheik Omar Abdel Rahman, who was being held in federal prison on suspicion of conspiring to destroy New York City landmarks. Stewart admitted that she had violated the "special administrative measures" (SAMs) allowed her by the Justice Department (to which she had agreed) and had aided the sheik by delivering a message from him to his followers through the Reuters News Service. In a September 26, 2006, letter to Judge Koeltl, who was presiding over her case, Stewart states that she intentionally violated her SAMs affirmation in order to be a zealous advocate for her client. She also recognized that although her actions may have been "legitimately tolerated" in June 2000, they are "interpreted differently and considered criminal" in a post-9/11 world. The true problem may have been that she went ahead with her plans instead of discussing the SAMs with the court first.
Stewart was arrested in April 2002 and prosecuted for providing "personnel" (herself) and "communications equipment" (or "material support") to a foreign terrorist organization. Additional counts included conspiracy to defraud the United States and knowingly making false statements by refusing to abide by the SAMs she signed. A jury convicted Stewart in February 2005, and she was sentenced to 28 months in prison in October 2006, even though prosecutors sought the maximum sentence of 30 years. To add to the circumstances, Stewart battled breast cancer throughout most of the trial. She is currently free on bail pending appeal.
Stewart most assuredly would have been convicted under the Patriot Act were it not for the ex post facto clause found in the Constitution. Because Stewart’s actions occurred before 9/11 and the subsequent passage of the Patriot Act, the Justice Department brought the case under the older language of 18 U.S.C. § 2339A that prohibited aiding international terrorists.
Any attorney who steps up to provide a basic defense for a suspected terrorist might be at the mercy of federal prosecutors and their interpretation of the phrase "expert advice or assistance." Without additional clarification of that phrase found in Title 18, § 2339A of the U.S. Code, any attorney who provides professional counseling to a client suspected of terrorism could be accused of providing "expert advice and assistance" in violation of the section. The lawyer might assume that every conversation and interaction with the client had been taped and recorded, and having the threat of criminal prosecution hanging overhead might sway other lawyers from taking on such necessary representation.
The actual implementation of Section 805 remains uncertain (the Central District of California has found the phrase "expert advice and assistance" to be impermissibly vague in Humanitarian Law Project v. Ashcroft, 309 F. Supp. 2d 1185 (C.D. Cal. 2004)), but defense attorneys need to play a careful game when representing a suspected terrorist. It remains to be seen how far the courts of this land will allow the pendulum to swing between protecting our dear civil liberties and the safety we so often take for granted.
National Security Letters
When the FBI investigates foreign powers or their agents for suspected terrorist activities within the United States, it may send a national security letter (NSL) to the keepers of such information as telephone numbers made from a specific phone, library books checked out by an individual, or websites surfed or sought on a particular computer.
NSLs have been permitted for some time, but the Patriot Act expanded their reach and use. No longer just confined to foreign agents or suspected terrorists, NSLs can now be used to collect information on U.S. residents as long as the information or records sought are relevant to investigations to protect the United States from international terrorism.
The Patriot Act further expanded the number of "designees" that the FBI Director could approve to send NSLs.
For civil libertarians, the most worrisome trait of an NSL is the "gag order" it carries with it. Those who receive an NSL are forbidden to let anyone else know that they have received such a letter. Read literally, this would obviously deny recipients from discussing the letter with an attorney. Some may read the strict language as embodying an implied exception to talk to an attorney, but that is just not clear from the statute.
While the NSL was not a tool used often by the FBI pre-9/11, the FBI now sends out about 30,000 a year (and a recent Department of Justice audit indicated that the number of letters has been underreported by about 20 percent during the last few years). That’s still not a large number when compared to say, the number of U.S. citizens in this country, but keep in mind that each letter could implicate thousands of people.
Federal officials have downplayed the issue by comparing NSLs to grand jury subpoenas. The only problem with that reasoning is that NSLs do not appear to enjoy the review of a judge, nor does the FBI need to obtain the approval of a court before issuing an NSL.
These are a few of the reasons why the American Civil Liberties Union (ACLU) challenged the Patriot Act in two different cases-one concerning a request for records from a group of Connecticut libraries and another for records from an Internet service provider. The ACLU appeared to have won its fight-Congress subsequently amended the Patriot Act accordingly-but the ACLU still seeks to challenge the constitutionality of the amended law. For more, see www.aclu.org/safefree/nationalsecurityletters.
Brett Burney is the principal of Burney Consultants LLC in Cleveland, Ohio. You may e-mail him at firstname.lastname@example.org.