Download Homeland Security and Civil Liberties

Homeland Securities and Civil Liberties
The September 11, 2001, terrorist attacks against the United States marked the beginning of the global war on terrorism, in which no
one country or group of people can be identified as the enemy. To justify their actions to try to prevent future attacks, homeland
security officials cite the need for accurate information regarding activities of possible terrorist plans. However, this necessitates
increased surveillance of both American citizens and foreign nationals.
The USA-PATRIOT Act was drafted in response to the September 11 attacks and was signed into law by President George W. Bush in
October 2001. The Bush administration and other supporters of the Patriot Act believe that it provided much-needed tools to identify
and apprehend terrorists. Groups such as the American Civil Liberties Union (ACLU), however, opposed the act's legalization of some
forms of domestic spying and its provisions that reduce, or in some cases eliminate, detainees' rights. The act was reauthorized in a
modified form in March 2006. In February 2010, US President Barack Obama extended the Patriot Act for one year. The act was
extended another ninety days in February 2011.
The ACLU filed a lawsuit against the National Security Agency (NSA) in January 2006, seeking an end to domestic spying. A United
States District Court judge ruled against the Bush administration, finding that the executive branch had overstepped its authority, and
warrantless interception of emails and telephone conversations of American citizens was deemed unconstitutional.
The debate centers on the question of what degree of liberty people are willing to trade in exchange for security. The Department of
Homeland Security has responded to the concerns of civil libertarians by increasing training on constitutional rights, prohibiting racial
profiling and expressing sensitivity on other cultural issues.
Understanding the Discussion
American Civil Liberties Union (ACLU): A non-profit organization dedicated to preserving the protections and guarantees outlined
in the Bill of Rights, including the rights of free speech, equal protection under the law, due process and privacy.
Department of Homeland Security: The Homeland Security Act of 2002 established the federal United States Department of
Homeland Security. Its stated mission is to secure the nation against terrorist attacks, to protect against and respond to threats and to
ensure safe and secure borders.
National Security Agency (NSA): A US intelligence organization that employs cryptologists, physicists, computer specialists and
mathematicians who protect secret US government information and also work to break codes used by foreign powers.
USA-PATRIOT Act: Also known as the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001, or simply the Patriot Act. The law was originally drafted to pursue terrorists, but has also been used to
prosecute other crimes such as drug dealing and money laundering. The act expands the government's ability to search private
property and access business, library, phone, email and other private records.
History
Terrorism has long been a problem throughout the world, but became a more urgent issue in the United States after the September
2001 terrorist attacks. Congress responded to the attacks with the USA-PATRIOT Act, which was rushed through the Senate and the
House and signed into law by President George W. Bush on October 26, 2001. The broad scope and full impact of the act's provisions
did not come to light until after its passage.
One aspect of the act that engendered opposition was the legalization of "sneak and peek" searches, in which government agents
enter citizens' homes and businesses without their knowledge. In such searches, the premises are left undisturbed and the owners are
not informed for many weeks. In November 2001, New York Times columnist William Safire accused President George W. Bush of
using the act to seize dictatorial power, charging that most sneak and peek searches are unconstitutional.
In defense of the act, President Bush asserted that it was written to be fully consistent with the Constitution, and pointed out that any
wiretaps, searches or tracking of phone calls could be done only with the permission of a federal judge. Such tactics were considered
by supporters to be a necessary evil required to keep the country safe from terrorism.
In January 2006, the ACLU filed a lawsuit against the NSA, challenging the domestic spying program. The suit charged that the First
and Fourth Amendments to the Constitution (guaranteeing free speech and privacy, respectively) were violated by NSA informationgathering tactics. The ACLU suit alleged that the NSA was "data mining," or sifting through thousands of emails and telephone
conversations from ordinary Americans, hoping to find information on terrorist activities. U.S. District Court Judge Anna Diggs Taylor
ruled in favor of the ACLU, reminding President Bush that "there are no hereditary kings in America, and no powers not created by the
Constitution." The United States Court of Appeals for the Sixth Circuit reversed Judge Taylor's decision on July 6, 2007, holding that the
plaintiffs lacked standing to sue. Thereafter, on February 19, 2008, the United States Supreme Court declined to hear the case, thus
letting stand the Sixth Circuit's ruling, as well as the domestic spying program.
In addition to the broadened provisions for information-gathering, the Patriot Act initially authorized government agents to arrest
anyone - regardless of citizenship - suspected of terrorism, and to detain individuals indefinitely without charge and without access to
an attorney. Most current detainees are non-U.S. citizens held in offshore facilities, including Guantanamo Bay, Cuba. Since the
detainees are classified as "enemy combatants," they were not considered to be subject to the provisions of the Geneva Conventions, a
set of rules that govern the conduct of war and the treatment of prisoners.
In June 2004, the United States Supreme Court ruled that the Bush administration may hold American or foreign citizens in military
prisons indefinitely, without charges or trials, if they are classified as "enemy combatants." The court also decided, however, that terror
suspects can use the American legal system to challenge their detention. Under this ruling, detainees now have access to attorneys and
the right to present evidence in court to challenge the basis for their detention.
This ruling concerns civil libertarians, since the rights of the accused now depend upon whether they are classified as "enemy
combatants" or common criminals. Revelations of secret FBI and NSA investigations into the actions of numerous peaceful citizens
groups have fueled the controversy. Environmental groups, peace organizations and churches have all been investigated for suspected
links to terrorism. For example, in one well-publicized case, several vegans (people who do not use or consume animal products) were
arrested as terrorism suspects in 2003 by NSA officers while protesting against animal cruelty in Georgia.
Many Americans do not voice their opposition to the detention of suspected terrorists captured on foreign battlefields. Their main
concern is that the definition of "enemy combatant" or "terrorist" is broad enough to encompass any citizen who exercises their right to
speak out against the government or the war on terror.
Homeland Security Civil Rights Chief Daniel Sutherland responded to citizens' concerns by implementing extensive training for law
enforcement officers. The Department of Homeland Security also employs a chief privacy officer, who works to ensure that the
department operates within federal privacy safeguards and respects constitutional rights.
Homeland Security & Civil Liberties Today
The Patriot Act was reauthorized on March 29, 2006, making the law permanent. Sneak and peek searches, roving wiretaps and
disclosure of library records remain legal. The government may obtain business records without prior proof of the owner's connection
to any convicted or suspected terrorist. Homeland Security Secretary Michael Chertoff pointed out that these law enforcement tools are
not new, as they were already being used to prosecute drug dealers and other criminals.
On June 29, 2006, the United States Supreme Court ruled in Hamdan vs. Rumsfeld that the Bush administration's plan to use military
tribunals to try terrorism suspects at Guantánamo Bay was illegal. Shortly after the ruling was made public, a statement from the
Pentagon acknowledged that detainees being held in Guantánamo Bay would now be protected under the Geneva Conventions' ban on
cruel and inhumane treatment. A United Nations investigation resulted in a recommendation to close that facility after finding that
treatment of detainees there amounted to torture. Detainees were allegedly beaten, left for prolonged periods in isolation, stripped
naked and threatened with dogs. Many detainees have attempted suicide, some successfully. U.N. observers who visited Guantánamo
were not allowed to question the detainees. The U.S. State Department called the U.N. allegations "baseless," and many U.S. officials
defended the methods employed at the Guantánamo Bay facility.
In June 2008, the United States Supreme Court further refined the legal access to which "enemy combatants" are entitled, dealing a
blow to the Bush administration in the case Boumediene vs. Bush. The court held in a 5-to-4 decision that detainees have a
constitutional right to challenge their detention in United States courts in habeas corpus proceedings. On December 5, 2008, the United
States Supreme Court announced that it will hear the case of Ali al-Marri, who was arrested in South Carolina, and is the only "enemy
combatant" detained within the borders of the United States.
In January 2009, President Obama declared his intentions to close Guantánamo Bay. However, as of March 2011, the facility remains
operational. A ninety-day extension of the Patriot Act was also passed in February 2011, and many lawmakers again disputed its
legality and whether or not the act violates civil liberties.
Bibliography
Books
Cassel, Elaine. The War on Civil Liberties: How Bush and Ashcroft Have Dismantled the Bill of Rights. Chicago: Lawrence Hill Books,
2004.
Darmer, M. Katherine B., ed. Civil Liberties vs. National Security in a Post 9/11 World. Amherst, New York: Prometheus Books, 2004.
Hannity, Sean. Deliver Us From Evil. New York: HarperCollins Publishers, Inc., 2004.
Hayden, Patrick, Tom Lansford and Robert P. Watson, eds. America's War on Terror. Burlington, VT: Ashgate Publishing Company,
2003.
Ivie, Robert L. Democracy and America's War on Terror. Tuscaloosa: University of Alabama Press, 2005.
Kamien, David. The McGraw-Hill Homeland Security Handbook. New York: McGraw-Hill Publishing Company, Inc., 2006.
Ranum, Marcus. The Myth of Homeland Security. Indianapolis: Wiley Publishing, Inc., 2004.
Woodward, Bob. Bush at War. New York: Simon and Schuster, 2002.
Periodicals
Bresler, Robert J. "Domestic Politics and the War on Terror." USA Today Magazine 130.2682 (Mar. 2002): 19. MasterFILE Premier.
EBSCO. 27 June 2008 http://search.ebscohost.com/login.aspx?direct=true&db=f5h&AN=6334649&site=ehost-live.
Cannon, Angie. "TAKING LIBERTIES." U.S. News & World Report 134.16 (12 May 2003): 44. MasterFILE Premier. EBSCO. 27 June 2008
http://search.ebscohost.com/login.aspx?direct=true&db=f5h&AN=9666104&site=ehost-live.
Cusick, Kelly R. "THWARTING IDEOLOGICAL TERRORISM: ARE WE BRAVE ENOUGH TO MAINTAIN CIVIL LIBERTIES IN THE FACE OF
TERRORIST INDUCED TRAUMA?" Case Western Reserve Journal of International Law 35.1 (Winter 2003): 55-88. MasterFILE Premier.
EBSCO. 27 June 2008 http://search.ebscohost.com/login.aspx?direct=true&db=f5h&AN=13466315&site=ehost-live.
De Rosa, Mary. "Privacy in the Age of Terror." Washington Quarterly 26.3 (Summer 2003): 27-41. MasterFILE Premier. EBSCO. 27 June
2008 http://search.ebscohost.com/login.aspx?direct=true&db=f5h&AN=10113205&site=ehost-live.
Glennon, Michael J. "Terrorism and the Limits of Law." Wilson Quarterly 26.2 (Spring 2002): 12. MasterFILE Premier. EBSCO. 27 June
2008 http://search.ebscohost.com/login.aspx?direct=true&db=f5h&AN=6566149&site=ehost-live.
Greenspan, Edward L. "In Defence of Freedom." Maclean's 116.30 (28 July 2003): 30. MasterFILE Premier. EBSCO. 27 June 2008
http://search.ebscohost.com/login.aspx?direct=true&db=f5h&AN=10451279&site=ehost-live.
Halloran, Liz. "ONE MORE ACT FOR THE PATRIOT ACT." U.S. News & World Report 140.3 (23 Jan. 2006): 30-31. MasterFILE Premier.
EBSCO. 27 June 2008 http://search.ebscohost.com/login.aspx?direct=true&db=f5h&AN=19420800&site=ehost-live.
Janigan, Mary. "Rolling the Dice." Maclean's 116.49 (08 Dec. 2003): 14-14. MasterFILE Premier. EBSCO. 27 June 2008
.http://search.ebscohost.com/login.aspx?direct=true&db=f5h&AN=11568212&site=ehost-live.
Jeffreys-Jones, Rhodri. "The FBI's Continuing Challenge: Centralized Intelligence vs. Civil Liberties." Chronicle of Higher Education
51.20
(21
Jan.
2005):
B12-B13.
MasterFILE
Premier.
EBSCO.27
June
2008
http://search.ebscohost.com/login.aspx?direct=true&db=f5h&AN=15859249&site=ehost-live.
Nolen, John. "Senate Passes 90-Day Extension of Patriot Act." cbsnews.com. 15 February 2011 http://www.cbsnews.com/8301503544_162-20032133-503544.html.
"Of liberty and libraries." Economist 377.8457 (17 Dec. 2005): 29-30. MasterFILE Premier. EBSCO. 27 June 2008
http://search.ebscohost.com/login.aspx?direct=true&db=f5h&AN=19174277&site=ehost-live.
Schultz, David. "September II and the War on Democracy." PA Times 29.2 (Feb. 2006): 4-4. MasterFILE Premier. EBSCO. 27 June 2008
http://search.ebscohost.com/login.aspx?direct=true&db=f5h&AN=20265202&site=ehost-live.
Standard, Kenneth G. "Civil liberties are balanced with need to protect from terrorists." Fairfield County Business Journal 43.41 (11 Oct.
2004):
38-38.
MasterFILE
Premier.
EBSCO.
27
June
2008
http://search.ebscohost.com/login.aspx?direct=true&db=f5h&AN=14750546&site=ehost-live.
Websites
BBC
News.
"U.S.
Court
Reviews
Enemy
http://news.bbc.co.uk/2/hi/americas/7768649.stm.
Combatant."
5
Dec.
2008.
Accessed
6
Dec.
2008.
<
Savage, David. Los Angeles Times. "Supreme Court Rejects Wiretap Suit." 20 Feb. 2008. Accessed 5 Dec. 2008. <
http://articles.latimes.com/2008/feb/20/nation/na-scotus20.Stout, David. New York Times. "Justices Rule Terror Suspects Can Appeal
in Civilian Courts." 13 June 2008. Accessed 5 Dec. 2008. < http://www.nytimes.com/2008/06/13/washington/12cndgitmo.html?em&ex.
Thesis: The passage of the Patriot Act and the reorganization of the national intelligence community into the Department of Homeland
Security represent an even-handed and well-planned effort to safeguard the security of the entire nation. The impact on civil liberties is
negligible compared to the need to prevent another deadly terrorist attack on the US.
Summary: The USA PATRIOT Act and the Department of Homeland Security allow for greater communication and cooperation
between the many government agencies and offices that handle the gathering and analysis of intelligence. The Patriot Act and the
Department of Homeland Security remove unwieldy and unnecessary legal barriers between different federal offices and allow vital
investigations to proceed with greater ease and efficiency. They also make it easier for law enforcement officials and security agents to
keep tabs on individuals who are already suspected of being involved in terrorist activities, thus greatly reducing the chances that the
country will be subject to another devastating attack from abroad. There has been criticism that the procedures instituted by the
Patriot Act and the Department of Homeland Security threaten to infringe upon the civil liberties of innocent Americans, but these fears
are largely unfounded and seem minor when viewed in the light of the greater cause of protecting national security.
A Tragic Failure of Intelligence
When a disaster occurs, there is often a tendency for people who recall it later, still stunned by its unexpected impact, to dwell on the
contrast between the peacefulness that existed before the event and the chaos that took over afterwards. Descriptions of the terrorist
attacks against the United States that took place on September 11, 2001, are no exception. Even the formal 2004 report of the
National Commission on Terrorist Attacks upon the United States (commonly referred to as the 9/11 Commission) begins by remarking
on the beautiful late summer weather that Tuesday. Like the hijacked planes themselves, the threat of international terror against the
United States seemed to hurtle abruptly and without warning out of the sky, apparently as much a shock to US intelligence agencies
and law enforcement personnel as it was to the general public and to the 2,976 innocent people who lost their lives in the attacks.
Despite the fact that the nineteen terrorists who carried out the strike had been living and training in the US for up to a year before
they executed their plans, the presence of these men, who did not even use pseudonyms, never triggered an investigation. Their
presence and activities had not been noted by government forces. In the words of the 9/11 Commission, "the nation was unprepared."
In fact, after the attacks, it became clear that a number of separate pieces of intelligence had been collected in the months before
September 11 that together reflected a growing wave of anti-Americanism and hinted at the vulnerability of the US to a major act of
terror from abroad. However, at the time of the attacks, this information was held by many different administrative units-including, but
not limited to, the Central Intelligence Agency (CIA), the Federal Bureau of Investigation (FBI), and various offices of the Department
of Defense and the Department of Energy. There was a lack of inter-agency communication and cooperation. Within individual
agencies, there was a lack of staff devoted specifically to counter-terrorism efforts. Reports on the state of the US intelligence and law
enforcement community have also indicated that there was insufficient training for intelligence agents and a general failure to compile
comprehensive analyses of the overall terrorist threat facing the country. The tragic events of September 11, 2001, revealed significant
and troubling shortcomings in the way intelligence was collected and analyzed up to that point.
Patriot Act Facts
Steps to prevent events of the scale of those that took place at the World Trade Center and the Pentagon on September 11, 2001,
began to fall into place almost immediately. Because there is no weapon powerful enough to combat an attack that comes without
warning, the only way to protect the U.S. from such threats was to make vast improvements in the collection and analysis of
intelligence. The first outline of a proposal for what would eventually become the USA PATRIOT Act was drafted just days after the
attacks. Backed by the overwhelming support of both Democratic and Republican members of Congress, the bill itself was signed into
law just weeks later, on October 26.
The Patriot Act is complex, but its major provisions act to improve coordination and communication between government intelligence
agencies, removing unwieldy and unnecessary legal barriers between different federal offices and allowing vital investigations to
proceed with greater ease and efficiency. It also increases the ability of the Secretary of the Treasury to control financial transactions
between individuals and organizations (particularly foreign entities). The Patriot Act makes it easier to detain and deport terrorist
suspects, and gives intelligence agencies such as the FBI greater authority to seize and investigate personal property and records.
During the years since the passage of the Patriot Act, attitudes toward the legislation have shifted. Though it once enjoyed broad
bipartisan support, in recent years it has become a divisive issue, with advocates who are largely Republican and critics who are largely
Democrats.
The Patriot Act was initially passed with a built-in expiration date known as a "sunset clause," but in 2005 the majority of its provisions,
even several that had given civil liberties advocates pause, were re-authorized by Congress. Some were made permanent; others will
require renewal. Despite the controversy surrounding the Patriot Act, a national poll conducted by an academic research institute in
2006 found that nearly 60 percent of Americans believe either that the existing Patriot Act should be made permanent, or that its
provisions should be strengthened even more. Fewer than 20 percent of those surveyed believe it should be allowed to expire.
Such strong public support suggests that for most Americans, the struggle between national security considerations and questions of
civil liberty is not really a dilemma; the importance of safety continues to be paramount. Academic experts such as Eric Posner, a law
professor at the University of Chicago, and Heather Mac Donald, a fellow of the Manhattan Institute for Policy Research, agree. Like
many supporters of the act, they have both pointed out that it manages to strike an extremely reasonable balance between security
and liberty. In addition, although many still harbor fears about the act's infringements on civil rights and liberties, the Justice
Department reports that no major substantiated abuses of its provisions have yet been recorded.
Homeland Security Basics
The other major change in the US response to the threat of terror came with the establishment of the Department of Homeland
Security (DHS) in 2002. The DHS serves as an umbrella organization that coordinates the efforts of the entire intelligence community,
streamlining communication and cooperation between more than twenty different government agencies with almost 200,000
employees. The DHS policies that have come under the most fire include a new system of biometric scanning for non-residents arriving
at U.S. airports, the inclusion of race and ethnicity as part of a list of factors that can trigger the questioning of an individual in specific
settings, and more stringent requirements for prospective immigrants. Given the ease with which the September 11 terrorists were able
to carry out their plans, these simple changes represent sensible improvements that are simply intended to close gaps through which
suspicious individuals would previously have fallen.
In addition, in March 2006 the DHS presented a proposed system of common standards for state-issued identification cards, so as to
improve the security of identification documents used for official purposes (such as voting or travel). Known as REAL ID, the proposal
has provoked fears that the cards will be linked to a national database of information about applicants, but in fact the DHS has
specifically refuted these claims, reassuring Americans that the information will be utilized only by individual states, just as it is today.
Civil Liberties and Security
The legislation passed following the September 11 attacks on the U.S. was not just a response to a sudden threat-it represented
expansions or elaborations on laws that already existed. Often, investigation procedures were adapted from those used on drug
criminals. If no one expressed concern at the methods used to investigate other criminals, it seems ludicrous to object to them being
used on terrorists.
Some parts of the Patriot Act serve to formally regulate and provide transparency to government behavior that once took place virtually
unchecked. Specific provisions of the Patriot Act protect civil liberties by requiring warrants for particular types of investigations. These
laws do not represent a change in national policy, do not violate the Constitution, and do not create sweeping extensions to the powers
of the government. The reforms merely make it easier for federal agencies to pinpoint individuals who are already suspected of being
involved in terrorist activities and keep tabs on them, deport them, and prevent them from executing their plans. Even if they wanted
to, federal intelligence offices would not have the time or the technological resources to examine and analyze the personal data of
every innocent American. This is true too of the provisions that have created the most controversy and suspicion, such as the so-called
"sneak and peek" searches, the FBI's ability to seize library records, and the domestic surveillance program, which involves warrantless
wiretapping of the phone lines of US citizens.
Conclusion
The sad truth is that most Americans have already lost the battle when it comes to keeping personal information absolutely private.
Images of Americans are recorded many times a day by video surveillance cameras in public places, their spending habits and taste in
movies, music and clothes are sold to and scrutinized by marketing companies, their email addresses are mined for advertising
opportunities, and their medical information may be collected by their employers. When seen in the context of these everyday
violations, the occasional infringements on privacy for the greater cause of protecting national security and preventing devastating
terrorist attacks seem minor indeed.
Ponder This
1.
2.
3.
4.
In your opinion, does the failure of US intelligence agencies to predict the events of September 11, 2001, fully justify the
changes that have been made in the collection and analysis of intelligence since that date? Explain your answer using
examples from the article.
Does the author leave out any important information or arguments in regard to the Patriot Act and Homeland Security?
Discuss.
Consider the author's statement: "Often, investigation procedures were adapted from those used on drug criminals. If no one
expressed concern at [that], it seems ludicrous to object to them being used on terrorists." In your opinion, is this a legitimate
argument? Why or why not?
Do you agree with the author that the "everyday violations" of privacy perpetrated by American marketing companies and
employers, among others, make the government's infringements upon civil liberties in the name of national security seem
minor? Discuss.
Bibliography
Books
Carafano, James Jay, and Sauter, Mark A. Homeland Security: A Complete Guide to Understanding, Preventing, and Surviving
Terrorism. New York: McGraw-Hill, 2006.
Rosen, Jeffrey. The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age. New York: Random House, 2004.
Schlepper, Bill. The USA Patriot ACT: Antiterror Legislation in Response to 9/11. New York: Rosen Publishing, 2006.
Periodicals
Amitai Etzioni. "Patriot Act is convenient target." USA Today. Academic Search Complete. EBSCO. 26 June 2008
http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=J0E183147702906&site=ehost-live.
"Do Antiterrorism Laws Go Too Far in Restricting Individual Freedoms? Con." Congressional Digest 84.7 (Sep. 2005): 217-223.
MasterFILE Premier. EBSCO. 26 June 2008 http://search.ebscohost.com/login.aspx?direct=true&db=f5h&AN=18189836&site=ehostlive.
"Don't deny government useful anti-terror tools." USA Today. MasterFILE Premier.
http://search.ebscohost.com/login.aspx?direct=true&db=f5h&AN=J0E208012380803&site=ehost-live.
EBSCO.
26
June
2008
F. James Sensenbrenner Jr. "No rights have been violated." USA Today. MasterFILE Premier. EBSCO. 26 June 2008
http://search.ebscohost.com/login.aspx?direct=true&db=f5h&AN=J0E353361561406&site=ehost-live.
Forbes, Steve. "Hysteria Unwarranted." Forbes 172.10 (10 Nov. 2003): 37-38. MasterFILE Premier. EBSCO. 26 June 2008
http://search.ebscohost.com/login.aspx?direct=true&db=f5h&AN=11218283&site=ehost-live.
Forman, Jack, and Daryl Grabarek. "The U.S.A. Patriot Act of 2001: Balancing Civil Liberties and National Security: A Reference
Handbook/Counterterrorism: A Reference Handbook." School Library Journal 51.2 (Feb. 2005): 82-82. MasterFILE Premier. EBSCO. 26
June 2008 http://search.ebscohost.com/login.aspx?direct=true&db=f5h&AN=16010461&site=ehost-live.
GEORGE W. BUSH, and PRESIDENT OF THE UNITED STATES. "GEORGE W. BUSH DELIVERS REMARKS ON THE PATRIOT ACT." FDCH
Political
Transcripts.
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Jeff Sessions. "Law doesn't erode liberties." USA Today. Academic Search Complete.
http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=J0E156169781105&site=ehost-live.
EBSCO.
Michael
Battle.
"Reality
vs.
myths."
USA
Today.
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26
26
June
June
2008
2008
"Patriot
Act
renewal
deserves
more
support."
pantagraph.com.
27
February
http://www.pantagraph.com/news/opinion/mailbag/article&lowbar;f414d382-4132-11e0-88bb-001cc4c002e0.html.
2011
"PATRIOT
Act
Passes
House
With
Majority
Vote."
ashlandcurrent.com.
http://ashlandcurrent.com/article/11/02/14/patriot-act-passes-house-majority-vote.
2011
14
February
Rachel Brand, and John Pistole. "Safeguards are in place." USA Today. MasterFILE Premier. EBSCO. 26 June 2008
http://search.ebscohost.com/login.aspx?direct=true&db=f5h&AN=J0E258158767105&site=ehost-live.
Sayani, Daniel. "Tea Party Flexes Its Clout on the Patriot Act." thenewamerica.com.
http://www.thenewamerican.com/index.php/usnews/politics/6273-tea-party-flexes-its-clout-on-the-patriot-act.
11
February
2011
Taylor Jr., Stuart. "LET'S FOCUS ON REAL THREATS TO LIBERTY, NOT FALSE ALARMS." National Journal 35.45 (08 Nov. 2003): 3399.
MasterFILE Premier. EBSCO. 26 June 2008 http://search.ebscohost.com/login.aspx?direct=true&db=f5h&AN=11478629&site=ehostlive.
Taylor Jr., Stuart. "MISGUIDED LIBERTARIANS ARE HINDERING THE WAR ON TERRORISM." National Journal 35.31 (02 Aug. 2003):
2466.
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2008
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Thornburgh, Dick. "BALANCING CIVIL LIBERTIES AND HOMELAND SECURITY: DOES THE USA PATRIOT ACT AVOID JUSTICE ROBERT
H. JACKSON'S 'SUICIDE PACT'?" Albany Law Review 68.4 (2005): 801-813. Academic Search Complete. EBSCO. 26 June 2008
http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=17775181&site=ehost-live.
Zuckerman, Mortimer B. "The Threat From Within." U.S. News & World Report 141.23 (18 Dec. 2006): 80-80. Academic Search
Complete. EBSCO. 26 June 2008 http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=23397816&site=ehost-live.
Websites
National Intelligence Council. "The Terrorist
http://www.fas.org/irp/dni/nie071707.pdf.
Threat
to
the
U.S.
Homeland,
July
2007."
Accessed
July
23,
2007.
Office of Homeland Security. "The National Strategy For Homeland Security, July 2002." Accessed July 23, 2007.
http://www.whitehouse.gov/homeland/book/.
Thesis: The USA PATRIOT Act, signed into law in the wake of the terrorist attacks of September 11, 2001, was designed to enable law
enforcement agencies to better secure the United States by intercepting and preventing acts of terrorism. However, the Patriot Act has
led to infringement upon civil liberties by law enforcement and intelligence organizations.
Summary: The USA PATRIOT Act was passed swiftly with very little congressional or public debate following the September 11, 2001,
terrorist attacks. It was designed to enhance existing drug and organized crime laws and intelligence measures in ways that would help
authorities detect and prevent terrorism. Since its enactment, criticism of the Patriot Act has come from national, state, and local levels,
as well as from legislators and independent organizations such as the American Civil Liberties Union (ACLU). These groups and
individuals have publicly renounced provisions of the Patriot Act since its passage in 2001 and before and after its reauthorization in
2006. The Patriot Act weakens the First and Fourth Amendment rights of US citizens-the right to freedom of speech and the right to
protection from unreasonable searches and seizures. Several notable legal cases have outlined the manner in which law enforcement
and intelligence agencies have used provisions within the Patriot Act in ways that are illegal and unconstitutional.
Introduction and Passage of the Patriot Act
The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001,
otherwise known as the USA PATRIOT Act or the Patriot Act, was enacted on October 26, 2001, a month and a half following the
September 11, 2001, terrorist attacks in which approximately 3,000 people were killed by members of the terrorist group al-Qaeda. The
methods used in these attacks were horrendous: commercial airplanes were hijacked by associates and agents of al-Qaeda and flown
into the World Trade Center in New York City and the Pentagon building (the headquarters of the US Department of Defense) in
Arlington, Virginia. Another hijacked airliner crashed near Shanksville, Pennsylvania. All passengers and the terrorists were killed in the
attacks, and many people who were inside or near the targets were also killed. The attacks also destroyed the World Trade Center,
sometimes referred to as the Twin Towers.
The immediate reaction of US citizens and many people around the world was to mourn for the victims of the attacks and their
families, but this soon turned into anger at the attackers and their supporters across the Middle East and beyond.
The reaction of the US government to the attacks was fierce and swift, culminating in air attacks and a military invasion of Afghanistan,
where the Taliban, the country's governing regime, were known to support al-Qaeda's actions against the US. In addition, members of
the US military and law enforcement agencies conducted a worldwide search to capture members and sympathizers of al-Qaeda.
Unfortunately, many people who were detained on suspicion of their connection to al-Qaeda or other anti-American terrorist groups
were wholly innocent of any crime or association with the terrorist organization, a fact that has caused worldwide outrage at the US
and its war on terror.
Prior to the attacks in 2001, al-Qaeda had already established itself as a notorious international anti-American terrorist organization. AlQaeda was responsible for the 1993 attempt to destroy the World Trade Center in New York City, the 1998 bombings of US embassies
in Kenya and Tanzania, and the attack on the USS Cole in Yemen in 2000. Following the embassy attacks in 1998, President Bill Clinton
authorized air strikes against suspected terrorist targets in Sudan and Afghanistan.
The Patriot Act was introduced into the US House of Representatives on October 23, 2001, and was signed into law by President
George W. Bush three days later. A vast majority of both the Senate and the House of Representatives voted in favor the bill, including
many legislators who would later renounce their support for it after it became apparent that law enforcement agencies were abusing
their authority under the act in the name of the war on terror.
There was minimal congressional debate over the merits or drawbacks of the Patriot Act, and very little public scrutiny; critics charge
that this was intentional in order to quickly pass the law before it could be thoroughly understood.
Provisions of the Patriot Act
The Patriot Act, as its title suggests, was designed ostensibly to secure the United States by intercepting and obstructing acts of
terrorism. The Patriot Act was reauthorized in March 2006 amid some controversy and extended again in February 2011. The
provisions of the act include the following security measures, as detailed by the US Department of Justice:
1.
2.
3.
4.
It allows investigators to use the tools to combat terrorism that were already available to investigate organized crime and drug
trafficking;
It removed the major legal barriers that prevented the law enforcement, intelligence, and national defense communities from
talking to one another and coordinating their work efforts to protect the American people and provide greater national
security;
It updated the law to allow investigators greater ability to monitor new technologies and new threats;
It increased the penalties for those who commit terrorist crimes.
Criticism of the Patriot Act
Support for the Patriot Act has been widespread among US legislators, courts and intelligence agencies. In 2006, President George W.
Bush argued that the act has been used to stop terrorist activity and to prosecute terrorists in several states since its initial passage.
Opposition to the Patriot Act has come primarily from watchdog groups that seek to protect the rights of US citizens from infringement
by the US government, such as the American Civil Liberties Union (ACLU), and individual legislators, such as Senators Russell Feingold
(D-WI), Chuck Hagel (R-NE), Lisa Murkowski (R-AK) and John Sununu (R-NH).
Many opponents have come to see the Patriot Act as a violation of the Fourth Amendment to the US Constitution, which states that
citizens have the right to a reasonable expectation of privacy and freedom from arbitrary searches and seizures of themselves or their
personal property. The ability of the Patriot Act to authorize law enforcement or government agencies to demand information from
libraries and bookstores is also considered a violation of the First Amendment right to freedom of speech.
Ongoing criticism of the Patriot Act has centered on a few very important points, including its passage with minimal debate, its
allowance for selective and secretive searches (known as sneak-and-peek searches), the indefinite and possibly illegal detention of
immigrant suspects, expanded powers for issuance of National Security Letters (which allow searches without court orders), and the
potential abuse of some of the act's provisions. Resistance has come not only from legislators but from entire city and state
governments.
Although it may have been enacted for the protection of US citizens, there is good reason to be wary of the Patriot Act. While the act's
provisions sound reasonable in the context of overall national security, in practice they may have been used by government agencies
as a justification for repeatedly violating the civil liberties of US citizens. Several notable cases illustrate how civil liberties may have
been violated by the Patriot Act:
• Detention of non-citizens: Shortly after the September 11 attacks, approximately 1,200 immigrants were jailed and held on suspicion
of terrorist involvement. These detainees were not allowed to communicate with attorneys or their families and were not told why they
were being held. The Patriot Act extended the amount of time that these detainees could be held and denied their constitutional rights.
The vast majority of those held indefinitely under the Patriot Act were innocent. Yet nearly a year later, forty still remained in custody
without having been charged or allowed to meet with lawyers.
• Sneak-and-peek: After the March 2004 terrorist bombings in Madrid, Spain, Brandon Mayfield was wrongfully arrested because of the
misidentification of his fingerprints by the Federal Bureau of Investigation (FBI). Mayfield, a lawyer, is Muslim. Although he was
released shortly after his arrest and received an apology for his wrongful arrest from US authorities, it was later revealed that his
personal property and electronic communications had been searched without his knowledge.
• National Security Letters (NSLs): NSLs are orders from the FBI and other intelligence agencies that demand that recipients disclose
otherwise private information about a particular person or entity; recipients of NSLs may not discuss the order with anyone else. Use of
NSLs was expanded by the Patriot Act to allow for issuing an NSL to US citizens. Prior to the passage of the Patriot Act, the FBI issued
approximately 8,000 NSLs per year; between 2001 and 2005, the FBI issued more than 140,000 NSLs. A 2007 audit of NSLs issued by
the FBI found 1,000 legal infractions by FBI agents involving NSLs, such as request for information they were not legally allowed to
gather.
• First Amendment threats: In Doe v. Ashcroft and Doe v. Gonzalez, district court judges found that provisions of the Patriot Act were
unlawful or unnecessary. In Doe v. Ashcroft, the court found that Section 2709 of the US Code, which originally authorized NSLs and
was later amended and expanded by Section 505 of the Patriot Act, violated the First and Fourth Amendments by bringing unnecessary
secrecy to law enforcement and deterring any judicial challenge to searches and seizures conducted pursuant to the provisions. In Doe
v. Gonzalez, a case involving NSLs issued to a group of librarians, the court ruled that the gag order provisions of the NSLs violated
First Amendment rights and were more expansive than necessary to keep government investigations secret. Both of these decisions
were later affirmed by the Second Circuit Court of Appeals. Ultimately, the ACLU and other watchdog agencies argued that, in the
name of increased national security, the civil liberties of US citizens were being threatened by government investigative activities under
the mantle of the Patriot Act.
Conclusion
Whatever good that has come as a result of the Patriot Act has been tempered by civil liberties violations by America's protectors acting
in the name of justice. While it may be the case that the USA PATRIOT Act has helped to keep the United States safe from its enemies,
it is also true that it has created new threats that US citizens must recognize.
Ponder This
1.
2.
3.
4.
Implied within the title of the Patriot Act is the idea of patriotism: to support this law is to support patriotism. In your opinion,
is it possible to be patriotic without supporting the Patriot Act?
Based on the information presented in the article, what effect do you think the Patriot Act has had on ethnic minority groups
in the US?
Review the list of legislators who are on record as opposing the Patriot Act. Who are they and what is their political affiliation?
Why do you think they don't support it?
In your opinion, does the author's close examination of some of the provisions of the Patriot Act support or detract from the
argument that the act represents a dangerous violation of civil liberties?
Bibliography
Books
Baker, Stewart A. Patriot Debates: Experts Debate the USA Patriot Act. Chicago: American Bar Association, 2005.
Etzioni, Amitai. How Patriotic Is the Patriot Act? Freedom versus Security in the Age of Terrorism. NY: Routledge, 2004.
Suskind, Ron. The One Percent Doctrine: Deep Inside America's Pursuit of Its Enemies Since 9/11. NY: Simon & Schuster, 2006.
Periodicals
"The freedom paradox." Economist(2 Sept 2006): 24.
"A question of freedom." Economist 366.8314 (08 Mar. 2003): 29-31. Academic Search Complete. EBSCO. 27 June 2008
http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=9254985&site=ehost-live.
Buky, Michael. "PATRIOT GAMES: TAKING LIBERTIES." Social Alternatives 25.3 (2006 Third Quarter 2006): 32-37. MasterFILE Premier.
EBSCO. 27 June 2008 http://search.ebscohost.com/login.aspx?direct=true&db=f5h&AN=23450609&site=ehost-live.
Cato Institute. Cato Handbook for Congress: Policy Recommendations for the 108th Congress, pp. 117-124. Washington, DC: Cato
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Cusick, Kelly R. "THWARTING IDEOLOGICAL TERRORISM: ARE WE BRAVE ENOUGH TO MAINTAIN CIVIL LIBERTIES IN THE FACE OF
TERRORIST INDUCED TRAUMA?" Case Western Reserve Journal of International Law 35.1 (Winter2003 2003): 55-88. MasterFILE
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Demmer, Valerie L. "Civil Liberties AND HOMELAND SECURITY (Cover story)." Humanist 62.1 (Jan. 2002): 7. Academic Search
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Gross, Grant. "Trade, Civil Liberties Groups Urge Cybersecurity Incentives." pcworld.com. 8 March 2011
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security&lowbar;incentives.html.
H.R. 3162. (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA
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Isikoff, Michael. "What Ever Happened to the Civil Liberties Board?" Newsweek 147.11 (13 Mar. 2006): 6-6. MasterFILE Premier.
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O'Brien, Michael. "Rand Paul urges colleagues against Patriot Act reauthorization." thehill.com. 15 February
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2011
Ponnuru, Ramesh. "1984 in 2003?" National Review. 2 June 2003: 17-18. Rodriguez, Paul M. "Civil Liberties and Homeland Defense."
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Sarasohn, David. "The Patriot Act on Trial." Nation (26 Sept 2005): 28-29. The Patriot Act and Civil Liberties. America Aug. 2005: 4+.
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Sonmez, Felicia. "House approves Patriot Act extension, sending it to Obama." washingtonpost.com. 17 February 2011
http://voices.washingtonpost.com/44/2011/02/house-approves-short-term-exte.html.
"TESTER VOTES AGAINST PATRIOT ACT EXTENSION, WHICH SENATE PASSES OVERHWHELMINGLY." kurl8.com. 16 February 2011
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Tirman, John. "Security the Progressive Way." Nation 280.4 (11 Apr. 2005): 27. Points of View Reference Center. EBSCO. 1 July 2008
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US Department of Justice. "Highlights
http://www.lifeandliberty.gov/highlights.htm.
of
the
Patriot
Act."
Life
and
Liberty.
Accessed
24
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2007:
US Department of Justice, Office of the Inspector General. "A Review of the Federal Bureau of Investigation's Use of National Security
Letters" (unclassified). March 2007. Accessed 25 June 2007: http://www.usdoj.gov/oig/special/s0703b/final.pdf.