Patriotism At the Peril of the Nation

The USA PATRIOT Act of 2001 was created to protect our country from terrorism, instead many from both sides of the aisle have realized it really could be used to dismantle that which we aim to protect. With new threats that expand on the USA PATRIOT Act being considered right now, everyone should consider the serious nature of the USAPA. As such I have spent some time over the past few months assembling the key facts that should provide a cursory consideration of this serious threat. This post is kind of long, but please find the time to read this piece and consider it.

Table of Contents

• A Tale of A Bookstore
• The Enemy Within
• The Act in Brief
• Overreaction?
• How Should We Respond?
• Two PATRIOTS Better Than One?
• Bipartisan Rejection
• Epilogue: If We Do Nothing

A Tale of A Bookstore

In February of this year a story went out on the Associated Press newswire by David Gram about a small bookseller in Vermont. Bear Pond Books, which normally would never get regional, much less national coverage, was suddenly being discussed across the nation. On web sites ranging from the eclectic GNU/Linux and technically focused Slashdot.org to that of personal “web logs,” suddenly Bear Pond Books and its owner, Michael Katzenberg, became names appearing all over the country.

The article, which was picked up by the San Francisco Chronicle, CNN.com, the Kansas City Star, and many other news sources, did little more than detail a new policy that the small bookstore was implementing. At that, the policy itself wasn't even something cutting edge as one might expect. Rather, the big piece of news that had caught thousands of people's attention was this: the bookseller had purged all of its records on Book Club book purchases, according to information available on the bookseller's web site.

Was this a case of a lazy bookseller? Did their computer's hard disk go bad? And, most of all, why would anyone who wasn't a Bear Pond Books customer even care about this customer relations management (CRM) decision anyway? It was because the announcement had little to do with the bookseller itself and much to do with one of the most talked about pieces of legislation to come out of Washington, D.C. in a long time. Bear Pond had removed the customer records because of a clause in the USA PATRIOT Act (USAPA) which states that the FBI “may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) […] provided such investigation of a […] person is not conducted solely upon the basis of activities protected by the first amendment of the Constitution” (USA PATRIOT Act § 215).

In essence, this PATRIOT Act change to the Foreign Intelligence Surveillance Act (FISA) section 501(a) gives the FBI permission to request virtually any records about you from private organizations, and said organization can neither say anything to anyone or do anything other than comply. In the AP report, Katzenberg notes, “When the CIA comes and asks what you've read because they're suspicious of you, we can't tell them because we don't have it.”

To get a better grasp on what made Katzenberg do this, and why it gained such notice, it is helpful to understand how the laws have changed. According to George Pike, the original FISA “recognized a difference between the investigation of criminal activity and foreign-intelligence investigation and surveillance,” whereas to invoke the amended FISA, one “merely needs to show that foreign intelligence is at least one significant purpose among many” (Pike).

The Enemy Within

The question then, is whether this new invasion of privacy is really helping us fight the “enemy” (that is al-Qaeda and other terrorist organizations) or if it is simply creating an enemy within our midst. In a widely distributed report from the Electronic Frontier Foundation, the electronic liberties organization raised this question, noting that “there is no evidence that our previous civil liberties posed a barrier to the effective tracking or prosecution of terrorists” (EFF Analysis Of The Provisions Of The USA PATRIOT Act).

While by itself it would be easy to shoot down the EFF's argument concerning evidence, it seems that they may be on to something. According to an Associated Press report, an opportunity to search the laptop of 9/11 terrorist Zacarias Moussaoui, something that would most likely have prevented the attack on the World Trade Center, was prevented not by FISA itself, but by FBI headquarters' nixing the Minneapolis office's attempt to get a FISA warrant. The report cites a statement from Sen. Arlen Specter (R-Pennsylvania) in which the senator suggests “[t]he lack of professionalism in applying the law has been scandalous.” A joint statement issued by Specter, along with Sens. Patrick Leahy (D-Vermont) and Charles Grassley (R-Iowa) suggested that the real problem was that the FBI has problems processing the data it received (Associated Press, “Senate criticizes FBI”).

In another report by Kyle Stock of PCWorld, Leahy argues that “[b]efore we give the government more power to conduct surveillance on its own citizens, we must look at how it is using the power that it already has.” He added that the rationale for needing access to the information on how the newly granted power is used is important not only for insuring that our liberties are not “sacrificed,” but also to insure that Americans don't have a false sense of security when they feel that anti-terror legislation is helping (Stock).

So the question is this: if the 9/11 attack could have been prevented simply by eliminating incompetence within the FBI, why did the USA PATRIOT Act ever get passed in the first place? The EFF's analysis simply suggests that this was a case of a “rush job,” adding that the “vast majority of the sections included have not been carefully studied by Congress, nor was sufficient time taken to debate it or to hear testimony from experts outside of law enforcement in the fields where it makes major changes.”

The Act in Brief

Any serious discussion of the USA PATRIOT Act must consider exactly what the act does. With over 340 pages and 15 sections (Electronic Frontier Foundation), the USA PATRIOT Act is in many ways a conglomeration of numerous acts – some related, some only loosely connected. The key to the USA PATRIOT Act, however, is its modifications to the Foreign Intelligence and Surveillance Act, which introduce many of the ominous invasions of privacy and freedoms that the act has become famous for. However, according to the EFF, the act also meanders through other topics including 9/11 victim/victim's family monetary relief, tightening down on computer fraud, and allowing investigators access to cable TV records.

One potentially problematic change that the Electronic Frontier Foundation notes is the ability to watch anyone's internet activities if a judge is notified that it could provide information “relevant” to a criminal investigation. Additionally, according to George H. Pike, the concern covered earlier about book purchasing records extends to many other forms of “business records” as well, including subscriber information from various service providers and e-mail. Voice mail has been made much easier to tap into as well, though the USAPA.

Also mentioning the concern about monitoring web site activity, Pike notes that the FBI could request libraries and “cyber cafes” to install tracking software to monitor Internet activity. The FBI has already had a controversial part in Internet monitoring with the infamous Carnivore system (now under the moniker DCS1000 in hopes of eliminating the stigma around the Carnivore name) that it has tried to deploy for the last few years. Earthlink, a large Internet service provider, fought against the FBI's attempts to deploy the surveillance systems in 2000, citing privacy and technology concerns. According to a report by Ann Harrison, the issue was eventually resolved with the FBI agreeing not to install Carnivore on Earthlink's systems.

Still, the technology does remain, and there is certainly no reason to suspect Carnivore has not been improved over the intervening years. Even in pre-9/11 policy, those told to deploy Carnivore were prohibited from discussing it, and now that such secrecy is codified in the USAPA, it could be that this very real threat to privacy is monitoring your Internet connection right now.

Overreaction?

With all of these potential threats that affect privacy and constitutional rights to due process and probable cause for search and seizure, it may not seem unreasonable to suggest it would be impossible to overreact to the threat of the USAPA. Not so, insists Stuart Taylor, Jr. of National Journal. According to Taylor, “the review court's decision does not lighten by one iota the government's burden of showing—before it can use FISA to wiretap you, me, the neighborhood drug dealer, or the Muslim family down the street—that the target is an agent of a foreign terrorist group or government.”

He continues by stating that critics are off the mark when they suggest that the modifications to FISA allow it to be used for “ordinary crimes,” noting that the review court rejected the push to allow FISA to be usable to investigate foreign agents in those ordinary crimes. It would seem that while Taylor is “dubious” about Attorney General Ashcroft's push for expansion of Department of Justice powers, he asserts that in this case, the PATRIOT Act ends up making FISA what it always should have been. “[The FISA Court's] notion that FISA could not be used to facilitate even prosecutions for terrorist conspiracies or espionage turned FISA's stated goal of ‘protect[ing] against' such dangers on its head,” according to Taylor.

How Should We Respond?

In the wake of all of the problems in the USAPA, many people across the country are left wondering how to respond. A USA Today Magazine report says that Sandra Braman, Reese Phifer Professor of Telecommunications and Film, University of Alabama, Tuscaloosa, is predicting a growing fight for civil liberties in the wake of the USA PATRIOT Act (“Antiterrorism Legislation May Face Backlash”).

According to Braman's statements in the article, unlike historic measures taken by the government during wartime aimed at securing information by restricting freedom of speech, the PATRIOT Act threatens to reduce other rights such as that to a fair trial and to association with others. While at first, she argues, only a few people stood up against the complex act, now many people are taking issue with it. According the Braman, many of the features of the PATRIOT Act will probably be thrown out due to their extreme nature.

On the other hand, in a Christian Century article written by John Dart, the author comments on the relative lack of protests by Christian clergy to the threat the act provides. As he put it, “During the multilevel U.S.-declared war on terrorism … Christian figures have been a voice for restraint—swiftly decrying slurs against Islam and steadily opposing an invasion of Iraq … [but] appear relatively quiet on what … activists call a perilous erosion of U.S. rights and privacy.”

According to Dart, one of the few Christian groups to speak out against the PATRIOT Act is the Progressive Religious Partnership, a liberal activist group, which suggested the act was an “Orwellian system of surveillance and social control that will destroy our freedom in the name of defending it” (Dart). Apparently, according to this report, the Progressive Religious Partnership recently issued a “report card” on the administration, giving it a “D on preserving liberties.”

Response is slowly coming in legal channels as well. According to a February Associated Press piece (“Case Tests Government's New Spy Powers”), a legal challenge to the expanded powers of the FBI has recently begun. Apparently, the judge in the case against several people accused of being part of a terrorist cell was expected to hear arguments asking for the release of information on 36 secret arrests made by the law enforcement agency.

According to the AP report, defense lawyers in the case are planning to argue against accepting evidence collected using FISA. The challenge, which, according to the report, may be the first against the PATRIOT ACT, is expected eventually to move through the Ninth Court of Appeals and then to the Supreme Court. The result of this case, needless to say, could very well be groundbreaking concerning the expansion of the ability to use FISA and other intelligence measures against American citizens.

With the unusually polarizing nature of the PATRIOT Act, response to it is coming even from city councils. According to a report by Margaret Gilleo in the St. Louis Post-Dispatch, the University City council convened in late January to address the concept of adopting a resolution against government infringement of civil liberties. According to the report, while the council had varying opinions on whether the resolution should specifically criticize the USA PATRIOT Act, it would deal with the results of that bill. She also reports that, according to some supporters, the key goal would be to inform city employees of what to do should the FBI request information that infringes on fundamental rights.

If passed, the University City measure would hardly be unique. Dean Schabner of ABC News notes that “[m]ore than 60 towns, cities and counties around the country have passed resolutions criticizing the act.” Schabner reports that some cities' resolutions go much farther than simply criticizing the Act, and actually “instruct municipal employees — including police — not to assist federal agents in investigations that they believe violate the Constitution.”

Two PATRIOTS Better than One?

Over the past few pages we have considered the dangers of the USA PATRIOT ACT of 2001. While the existing act is worrisome enough to severely concern those who seriously peruse it, new threats have appeared on the horizon that could continue to strengthen the control of the Department of Justice on the nation at the expense of liberty.

During the initial drafting of the PATRIOT Act, enough concern existed that the final act received a sunset clause on some, but not all, of its most ominous clauses. According to that clause, parts of the act will terminate on December 31, 2005, although not all of them will.

Disturbingly, as many, including myself, have feared, activation of this sunset clause may never see the light of day. In a New York Times piece entitled “GOP wants to keep anti-terror powers,” it is reported that Sen. Orrin Hatch (R-Utah) has started a movement to attach a clause to a bipartisan national security bill that would eliminate the sunset clause completely.

According to the report, while many observers expected the debate of continuing the PATRIOT Act to still be down the road a bit, “political jockeying over separate, bipartisan legislation sponsored by Sens. Jon Kyl, R-Ariz., and Charles Schumer, D-N.Y., appears to have given Hatch the chance to move on the issue much earlier than expected.”

Despite urgings from the Republican administration's Department of Justice, it appears that Hatch's maneuvering may not gain full support even from those on his side of the aisle. An Associated Press piece published on FoxNews.com reports that House Judiciary Committee chairman James Sensebrenner (R-Wisconsin) is concerned that the DOJ isn't reporting enough information to gain support for extending the PATRIOT Act beyond 2005.

“The burden will be on the Justice Department and whomever is attorney general at that time to convince Congress and the president to extend the Patriot Act or modify it,” the article quotes Sensebrenner as saying. “But because of the fact that everything has been classified as top-secret, the public debate is centering on (the act's) onerousness.”

Not surprisingly, Democrats were not to eager to help Hatch's cause either. Senate Minority leader Tom Daschle (D-South Dakota), according to the report, commented that he “would be very strongly opposed to any repeal” of the existing expiration date without a major review of the facts.

Regrettably, extending the PATRIOT Act of 2001 isn't the only major threat on the horizon. A draft of a new bill entitled “Domestic Security Enhancement Act of 2003” (DSEA) leaked out of the Department of Justice in January. A copy of the legislation, which is more commonly known as the “PATRIOT II” or “Son of the PATRIOT,” dated January 9, 2003 and marked “Confidential – Not for Distribution” was published by the Center for Public Integrity shortly thereafter. According to an article from the Center by Charles Lewis and Adam Mayle, House Judiciary Committee spokesman Jeff Lungren reported that the Judiciary Committee had not heard from the Department of Justice concerning modifying the PATRIOT Act. The piece also quotes Lungren asserting that “[t]hey haven't shared their thoughts on that. Obviously, we'd be interested, but we haven't heard anything at this point.”

The Lewis and Mayle piece also reports that Dr. David Cole of Georgetown University, after examining the bill for the Center, opined that the bill “raises a lot of serious concerns.” He continued saying:

It's troubling that they have gotten this far along and they've been telling people there is nothing in the works… [The bill] would radically expand law enforcement and intelligence gathering authorities, reduce or eliminate judicial oversight oversurveillance, authorize secret arrests, create a DNA database based on unchecked executive ‘suspicion,' create new death penalties, and even seek to take American citizenship away from persons who belong to or support disfavored political groups. (Lewis and Mayle)

There are very good reasons for Cole's concern. For example, according to section 103 of the DSEA, the “war time exception” that allows for non-authorized “electronic surveillance, physical searches, and pen registers” for 15 days after a congressional declaration of war would now be extended to include congressionally authorized military action or attack to the U.S. causing a national emergency. Considering the frequency of military action by the United States in recent years, this could amount to a very substantial amount of time where the Department of Justice would be officially permitted to ignore the Fourth Amendment.

The new act would also modify FISA section 101(a)(4) in an attempt to get so called “lone wolf” terrorists by allowing individuals not associated with a terror network or government to be classified as foreign powers. Conceivably, this would mean that American citizens could be prosecuted without the rights and protections given to American citizens under the constitution with the full backing of the much more lenient requirements of the FISA court (DSEA §101).

The new act continues with more disturbing amendments including lessening the conditions required to admit FISA obtained intelligence into criminal proceedings (§105), and the ability to collect DNA samples from suspected terrorists and not just convicted terrorists (§302). While scarcely represented in the DSEA, there are a few amendments that appear helpful, such as section 108, which would allow the Court of Review, when accepting a FISA Court case appealed by the U.S. Government, to appoint a lawyer to represent the position of the lower FISA Court rather than operating in an ex parte fashion. This could be beneficial, in cases where the FISA Court chooses to deny Department of Justice requests, albeit infrequently, as FISA Court denials have come far and few between since its 1978 formation.

An article by Mary Dalrymple of CQ Weekly reports that certain sections of the bill would require businesses to report information on suspected terrorists while providing legal immunity to privacy suits against businesses that comply. In essence, as Chris Hoofnagle of the Electronic Privacy Information Center is quoted as observing, the new bill would “literally make the private sector the agent of government.” Dalrymple also notes that the DSEA would give the federal government full access to consumer credit reports, allowing investigators to track your bank accounts, places of employment, and more.

Anita Ramasastry, of FindLaw's Writ, comments on some of the disturbing sections of the new act, saying “Certainly one could envision a disruptive war protester who resisted arrest being tagged as a 'suspected domestic terrorist,' and forced to provide DNA.” Ramasastry also shows the futility of such a protester fighting the DNA retrieval, noting that if they didn't provide the DNA, “[t]hat would be a Class A misdemeanor, punishable by up to one year in prison and a $100,000 fine […] [and] if any other government agency happens to have a blood sample, Patriot II gives the government the right to put it in the new database.”

Ramasastry's dim picture of liberty in post-DSEA America grows even dimmer later in the commentary. According to the piece, “anything from getting into a raucous bar fight, to driving recklessly over the state speed limit, could theoretically count [as terrorism].” According to Ramasastry, even encrypting an e-mail message about “sharing” (pirating) music could be construed as an offense punishable up to 10 years in prison. She also notes that such acts of “terrorism” could be used to allow the government to start surveillance on virtually any person of their choosing.

While crossing the line into illegal investigations becomes increasingly hard thanks to the loosened restrictions provided by the PATRIOT Act and the DSEA, what little is still considered illegal may not be punishable thanks to another part of the new act. Ramasastry, “What if you're lucky enough discover that you've been illegally spied on, in violation of your Fourth Amendment rights? Too bad. Patriot II would provide immunity from liability to law enforcement engaging in spying operations against the American people.” The report continues by noting that this change could even result in a scenario where a company's competitor could report that company as being involved in terrorist activities, and the former company would have no recourse against its competitor for the damages caused.

Bipartisan Rejection

Like the PATRIOT Act itself, conservatives have joined their liberal counterparts in expressing concern over the act. According to Schabner, the American Conservative Union has become concerned about the Domestic Security Enhancement Act. “There's no question the government has to have the tools to protect us from terror attacks and to prosecute those who want to harm us […] [b]ut having said that, the American Conservative Union wants to be sure that Congress takes into account the civil liberties of the citizens and through their deliberations reaches the proper balance between law enforcement and protecting citizens' rights,” the report quotes ACU Executive Director Stephen Thayer as saying.

The ACU isn't the only conservative political group that has become concerned with the DOJ's jockeying for control either. Michael Hammond, a consultant for the Gun Owners of America is also quoted by Schabner as being worried, reporting that the Gun Owners of America is “looking into whether some of [the] groups [Gun Owners of American members belong to] or even the NRA [National Rifle Association] could be designated terrorists by this or a future administration.”

Epilogue: If We Do Nothing

As has been revealed here, the PATRIOT Act offers a glimpse at what can slip through our system of checks and balances during a time of increased fear. While people are now feeling increasingly comfortable about boldly attacking the USA PATRIOT Act without feeling unpatriotic, that may not be enough to cause the repeal of the act or stop the proposed DSEA from becoming a reality, especially with the current Middle East crisis taking the focus away from issues such as this.

Even though many of the ominous sections of the PATRIOT Act will sunset on December 31, 2005, not all of them will. Furthermore, as was shown, if some political forces have their way, that sunset clause may disappear completely. Therefore, it is critical for our future freedom that American citizens take an active and vocal stance on this issue so that such a scenario does not happen.

It may be said that we should support such legislation to increase our safety; however, we would do well to remember the words of Benjamin Franklin, when he remarked, “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” With that in mind, we should carefully consider exactly what legislation like this does and decide if it is worth the cost to liberty.

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