Harry F.
Tepker, University of Oklahoma
Less than
seven weeks after the terrorist mass murders at the World Trade Center,
the Pentagon, and a Pennsylvania cornfield, President George W. Bush
signed the USA PATRIOT Act ("Patriot Act"). The statute is complicated,
controversial and long - 342 pages - but its significance has been
obscured by Congress's decision to approve the law without public
hearings or extended debate. The Washington Post summarized
the consensus view of the new law:
Molded by wartime politics and passed a week and a half ago in furious haste,
the new anti-terrorism bill lays the foundation for a domestic intelligence-gathering
system of unprecedented scale and technological prowess, according to both
supporters and critics of the legislation.1
Generally,
the law is designed to strengthen the nation's capability for defending
itself from terrorist attacks. Explaining the Patriot Act, Attorney
General John Ashcroft decried what he called "a cultural myth that we
could draw an artificial line at the border to differentiate between the
threats we faced."2 The myth, Ashcroft contended, led to
"barriers to information sharing . . . between and within government
agencies." A policy of "compartmentalization" distinguished
between foreign intelligence gathering and domestic law enforcement
within territorial limits of the United States. One consequence, in the
attorney general's view, was that "terrorists gained a competitive
technological advantage over law enforcement." However, also in his
view, the Patriot Act "made significant strides toward both fostering
information sharing and updating our badly outmoded
information-gathering tools. Intelligence agents now have greater
flexibility to coordinate their anti-terrorism efforts with our law
enforcement agencies." Advocates and critics agree that the basic
purposes of the act were to remedy our nation's weaknesses that the
September 11 terrorists exploited by improving our ability to monitor
terrorists' communications, financing, and movement into and within the
United States.
Congressional Deliberations
Much of the
criticism directed at the administration and Congress appears to be
focused on the haste with which the bill was considered and passed. The
attorney general submitted proposed legislation three days after the
terrorist attacks, and he demanded action within two or three days more.
When legislators expressed reservations and insisted on compromises,
the attorney general and the administration publicly blamed Democrats
for delaying passage of the legislation. Observers interpreted the
public attack as a signal that opponents of the bill would be blamed
for future terrorist attacks. It was a signal that repeated the
not-so-subtle choice of a title for the proposed legislation: The USA
Patriot Act.3
The push for
quick passage avoided discussion of controversial measures. The
truncated legislative process avoided real, needed debate of how
effectively to improve the nation's ability not only to collect
intelligence, but also to efficiently and wisely synthesize collected
data into useful information. The absence of debates and hearings may
also deprive the judiciary of reliable legislative history when courts
review the meaning and constitutionality of the act.4
The
administration and the attorney general have taken most of the heat for
pushing for quick passage, but criticism has also been directed at the
leadership of the Democratic Party in the House and Senate. One anecdote
comes from Russell Feingold, the only Senator to vote against the
Patriot Act.5
When the
original Ashcroft anti-terrorism bill came in, they wanted us to pass it
two days later. I thought this thing was going to be greatly improved.
They did get rid of a couple of provisions, like looking into
educational records. But there were still twelve or thirteen very
disturbing things, and I thought, OK, we'll take care of this. But then
something happened in the Senate, and I think the Democratic leadership
was complicit in this. Suddenly, the bottom fell out. I was told that a
unanimous consent agreement was being offered with no amendments and no
debate. They asked me to give unanimous consent. I refused. The Majority
Leader came to the floor and spoke very sternly to me, in front of his
staff and my staff, saying, you can't do this, the whole thing will
fall apart. I said, what do you mean it'll fall apart, they want to
pass this, too. I said, I refuse to consent.
Colleagues
told Feingold he was right, but they felt obliged to follow Daschle's
lead. In Feingold's words:
Daschle comes
out and says, "I want you to vote against this amendment and all the
other Feingold amendments; don't even consider the merits." This was one
of the most fundamental pieces of legislation relating to the Bill of
Rights in the history of our country! It was a low point for me in
terms of being a Democrat and somebody who believes in civil liberties.
Despite
"pressure from the Bush administration and FBI warnings of further
terrorist attacks on U.S. soil,"6 Congress did modify the
administration's proposal.7 Even the American Civil Liberties
Union, which is very critical of the final legislation, concedes that
"the bill was improved somewhat in Congress."8 One prominent
change limited the attorney general's proposed authority to hold
immigrants suspected of terrorist activity. The final version also
included sunset provisions inserted by the House over administration
resistance requiring that many, if not all, of the powers conferred on
the executive branch would expire in a few years.
A Central
Objective: Eliminating Barriers
Between
Intelligence and Law Enforcement
When Congress
passed the National Security Act in 1947, the law distinguished between
foreign intelligence operations, the mission of the newly created (CIA),
and federal law enforcement, assigned to the Federal Bureau of
Investigation. This division of labor served many purposes, not least of
which was the cause of civil liberties at within the United States.
After the Watergate scandal and the revelations of the Senate "Church
Committee," Congress pushed to improve oversight of the CIA, to minimize
intrusive political surveillance by the FBI, and to erect legal and
institutional barriers between law enforcement and intelligence
agencies.
However, the
tragedies of September 11 shattered faith in the policy of separation.
The perpetrators of the mass murders were individuals who had lived in
the United States. They had entered and exited the nation with a minimum
of difficulty. Worse, each of the principal agencies charged with
protecting the country from terrorist attack - the CIA, the FBI and the
Immigration and Naturalization Service - had some information about the
September 11 terrorists, but they had not always or quickly shared that
information with each other. Policymakers concluded that more
cooperation between domestic law enforcement and foreign intelligence
collection was an indispensable element of a more effective strategy.
"Terrorists
are a hybrid between domestic criminals and international agents,"
argued Senator Orrin Hatch (R-Utah), a sponsor of the Patriot Act. "We
must lower the barriers that discourage our law enforcement and
intelligence agencies from working together to stop these terrorists.
These hybrid criminals call for new hybrid tools."9
To break from
past policies, the act eases some of the restrictions on foreign
intelligence gathering within the United States. Section 203 allows and
requires the attorney general to disclose "foreign intelligence
information" gathered by means of a federal criminal investigation,
including grand juries and wiretapping, to the Director of Central
Intelligence.
Securing and
using information about terrorism and terrorists is one thing. However,
critics argue, the act's duty to disclose is not limited to data related
to international terrorism. The act also requires the Department of
Justice to give the CIA all information
relating to any foreigner or to any American's contacts or activities
involving any foreign government or organization. The statute does not
establish standards, limitations or safeguards restricting disclosure or
subsequent use of the "foreign intelligence information," but delegates
to the attorney general the responsibility for establishing procedures
for the disclosure of "foreign intelligence information" originating
from grand juries or wiretaps. Also, critics fear that the act's broad
and ambiguous language allows the CIA and the intelligence community to
again collect information about persons who have committed no crime,
but who are involved in lawful, constitutionally-protected protests of
American foreign policies.
FISA surveillance and the U.S. Foreign Intelligence Surveillance Court
The Federal
Intelligence Surveillance Act of 1978 created a special court to ensure
that "the sole purpose" of domestic intelligence gathering was to obtain
foreign intelligence information. One persistent problem for federal
agencies was to demonstrate that foreign intelligence was the "sole"
objective.
Section 218
of the Patriot Act altered the law to provide that the government need
only show that collection of foreign intelligence information is "a
significant purpose" rather than "the sole purpose" of an investigation.
The danger, of course, is that law enforcement authorities, such as the
FBI, might evade the Fourth Amendment, including the requirement of
probable cause. To catch ordinary criminals, they might resort to the
special powerful tools available under the FISA for catching spies and
terrorists.
In March
2002, Attorney General Ashcroft proposed new guidelines that allowed
federal prosecutors to consult with FBI agents conducting foreign
intelligence operations. In May, the seven members of the secret U.S.
Foreign Intelligence Surveillance Court unanimously rejected the
attorney general's proposed new guidelines, and publicly released their
opinion - the first published opinion in the history of the court - in
August. Noting the intrusive and powerful character of FISA
surveillance, the seven judges sought to maintain the "walls" that
prohibit criminal prosecutors from directing and controlling the
investigations of foreign spies and terrorists.10 Based on
past unfortunate experiences, the judges feared the department's
proposed changes were not "reasonably designed" to minimize intrusive
surveillance.
The
department successfully appealed to a secret three-judge court of
appeals appointed by the chief justice. On November 18, 2002, the judges
issued an opinion reversing the FISA court's judgment and approving the
department's proposed procedures.11 The court rules that
criminal prosecutors could actively plan how to use wiretaps authorized
by a special intelligence court. Also, law enforcement authorities
should have greater access to information obtained from the
intelligence operations. The three judges unanimously agreed with the
attorney general and the Justice Department that the USA PATRIOT Act was
designed to ensure that there is no wall between officials from the
intelligence and criminal arms of the Justice Department. In the words
of the opinion:
Effective counterintelligence, as we have learned, requires the wholehearted cooperation of all the government's personnel who can be brought to the task. A standard which punishes such cooperation could well be thought dangerous to national security.
The opinions
of the two courts reflected two strikingly different perceptions, and
the appeals court harshly criticized the lower court for trying to tell
the Justice Department how to run its operations. The lower court
opinion, the appellate panel ruled, adopted a view that violated the
separation of powers between the executive branch and the judiciary.
Judicial Review
The FISA judicial wrangling may or may not may be a portent of judicial resistance
to broad executive powers,12 and the administration may have feared
resistance when it pressed for limited court controls in the act.
Professor John Podesta defends many provisions of the Patriot Act, but concludes:
A common
problem running through many of the new authorities contained in the
Patriot Act is the reliance on executive branch supervision rather than
meaningful review by a neutral magistrate of the potentially highly
intrusive surveillance techniques that are authorized.13
As Professor
Podesta points out,
the potential
for abuse, for invasion of privacy, and for profiling citizens is high.
ThatÕs why it is disappointing that the authors of this provision
settled for an incredibly weak standard of judicial oversight.
Also, there is no requirement for judicial review before the Director of Central
Intelligence can obtain information obtained through grand jury investigations
and wiretaps. Moreover, sections 215 and 358 purport to require federal judges
to issue orders compelling production of books, records or other information,
based on a "certification of relevance."
Less Than a Year of Experience
The Patriot
Act has been on the books for less than a year, and it is far too early
to conclude whether hopes or fears have been fulfilled. Professor
Jeffrey Rosen sees the Patriot Act as one experience in which checks and
balances served the cause of liberty and privacy, at least in
comparison to more extreme changes in European security measures after
September 11. In his view,
an unusual
congressional alliance of civil libertarian liberals and libertarian conservatives
. . . forced the administration to remove some of the most draconian provisions
from the administration's proposed drafts of the USA Patriot Act.14
In a similar vein, when the Patriot Act passed the Senate, the respected defender
of the First Amendment and civil liberties, Floyd Abrams, described the Patriot
Act as "incomparably more sober and sensible than what some of our revered
presidents did."15 Indeed, it is possible that the Patriot Act
is not as important as it seemed when it was first enacted. In the words of
Philip B. Heymann:
Although much
of the concern over managing the tension between liberty and security in
response to the recent terrorist attacks has been focused on the
anti-terrorism bills and the resulting USA Patriot Act (Patriot Act)
adopted in late fall 2001, the issues presented by the new statute are
less significant than the civil liberties issues resting entirely within
the discretion of the executive branch.16
Perhaps after the compromises in the final version of the Patriot Act, the
president and the attorney general concluded that the statute's provisions
are more trouble than they are worth. The administration immediately proceeded
to more controversial steps, including the executive order creating military
tribunals and the refusals to disclose court-ordered information justifying
detentions.17 In any case, the consensus in favor the Patriot Act
rested in part on a decision to legislate now and study later. In other words,
Congress felt it necessary to act quickly because of urgency, but to study
as part of its oversight responsibilities. The issues are particularly acute
and important because so many of the criticisms of the ActÕs broad
language show only that "the effects of the Act depend on how the executive
branch exercises its broadened authority."18 Unfortunately, the
administration and, in particular, the Department of Justice has resisted
the efforts of Congress, including the Judiciary Committees of the House and
Senate, to review actual use of new antiterrorism powers.19 Ultimately,
Congressional passage of the Patriot Act only postponed a reckoning with the
doubts and criticisms. It certainly did not, and should not end Congress's
duty to investigate and debate the realities of what it has done.
Notes
The author would like to express appreciation for the research and editorial
assistance of Alison Webster.
1. Jim McGee, "An Intelligence Giant in the Making; Anti-Terrorism Law Likely
to Bring Domestic Apparatus of Unprecedented Scope," Washington Post, 4 Nov. 2001.
2. Statement
of Attorney General John Ashcroft before the House Select Committee on
Homeland Security (11 July 2002).
3. The
acronym comes from "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism."
4. Michael T.
McCarthy, USA Patriot Act, 39 Harv. J.
on Legis. 435 (2002) ; "Of particular concern is the speed with which
the bill was considered". Elizabeth A. Palmer, "Terrorism Bill's Sparse
Paper Trail May Cause Legal Vulnerabilities," Congressional
Quarterly Weekly Report , 27 Oct.
2001, 2533-2535.
5. Matthew
Rothschild, "The Progressive Interview: Russ Feingold," The
Progressive 66, no. 5 (1
May 2002).
6. Jennifer
A. Dlouhy and Keith Perine, "Deal Clears Way for Final Passage of
Anti-Terrorism Legislation," Congressional Quarterly Weekly Report (20 Oct.
2001).
7. Michael T.
McCarthy, USA Patriot Act, 39 Harv. J.
on Legis. 435 (2002) ; "Congress modified the Administration's original
proposals in important ways [that] make it more likely that the
political and judicial processes will protect" civil liberties. Mary
Ellen Tsekos, Patriot Act, 9 No. 1 Hum..
Rts. Brief 35 (Fall 2001); "Congress significantly altered the PATRIOT
Act."
8. Ronald
Weich, Upsetting Checks and Balances: Congressional Hostility Toward the
Courts in Times of Crisis (An ACLU Report) 5 (Oct. 2001),
published at http://www.aclu.org/NationalSecurity/NationalSecurity.cfm?ID=9810&c=111&Type=s.
9. Congressional Record, 147th Cong.,
1st sess., S10,560 (11 Oct. 2001); statement of Senator Hatch.
10. In re: All Matters Submitted to the Foreign Intelligence Surveillance
Court, No. Multiple
02-429 Ð F.Supp.2d C, 2002 WL 31017386 (U.S. Foreign Intel.Surv.Ct., 17
May 2002).
11. In re: Sealed Case (U.S. Foreign Intelligence
Surveillance Court of Review No. 02-001 and 02-002), 18 Nov. 2002.
12. Linda Greenhouse, "The Imperial Presidency vs. the Imperial Judiciary,"
New York Times, 8 Sept. 2002. The Bush administration's
"so far self-defeating legal strategy in the terrorism-related cases, . .
. seems to amount to driving headlong into a judicial roadblock. In a legal
system that emphasizes nuance, the administration defends its positions categorically:
no judicial review, no right to counsel, no public disclosure, no open hearings.
Even judges whose every instinct is to defer to plausible claims of national
security have recoiled."
13. "USA Patriot Act: The Good, the Bad, and the Sunset," Human Rights 29, no. 1
(ABA Section on Individual Rights and Responsibilities) (Winter 2002). An
issue of Human Rights, devoted to the Patriot Act and other civil liberties
issues in the war against terrorism is published at www.abanet.org/irr/hr/winter02.html.
14. Jeffrey Rosen, "Liberty Wins - So Far, Bush Runs Into Checks and Balances
in Demanding New Powers," Washington Post, 15 Sept.
2002, B01.
15. Quoted in Jonathan Alter, "Time To Think About Torture," Newsweek, 5 Nov. 2001.
16. "Civil Liberties and Human Rights in the Aftermath of September 11," Human
Rights 29, no. 1
(ABA Section on Individual Rights and Responsibilities) (Winter 2002).
17. For a defense of the executive branch's decisions apart from the Patriot
Act, see, e.g., Viet D. Dinh, Foreword: Law and the War on Terrorism, Freedom
and Security after September 11, 25 Harv.
J. L. & Pub. Pol'y 399 (2002).
18. Michael T. McCarthy, USA Patriot Act, 39 Harv.
J. on Legis. 435 (2002).
19. Adam Clymer, "Justice Department Rebuffs Reviews of New Antiterrorism
Powers," New York Times, 15 Aug.
2002). On September 10, the Judiciary Committee of the United States Senate
held a public hearing on "The USA PATRIOT Act In Practice: Shedding Light
on the FISA Process." The testimony and statements of witnesses (David S.
Kris, Kenneth C. Bass III, William C. Banks, Morton H. Halperin) and members
of the Senate (Patrick Leahy, Orrin Hatch, Russ Feingold, Strom Thurmond,
Charles Grassley) were published on line at the website of the committee http://judiciary.senate.gov/.
Harry F.
Tepker, Jr. is the
Floyd and Irma Calvert Chair in Law and Liberty Professor in the
University of Oklahoma College of Law. He teaches courses in the areas
of constitutional law, employment law, and equal employment opportunity.
In 1987, the United States Supreme Court appointed Tepker as counsel
for petitioner, an indigent juvenile sentenced to death, in Thompson v.
Oklahoma, 487 U.S. 815 (1988). It was the first case in which an
American court overturned a death sentence on constitutional grounds
because the condemned was too young at the time of the crime. Professor
Tepker is the author of numerous publications in the fields of
constitutional law, employment law and legal history. His email address
is rtepker@ou.edu.
Other Provisions of the Patriot
Act
Surveillance
The USA Patriot Act seeks to modify federal law in response to technological
changes in the "digital age". The act generally seeks to expand surveillance powers
of law enforcement and intelligence communities to allow enhanced capacities
to deter and combat terrorist threats. Among other
features, the Patriot Act:
