October 2003
The Patriot Act and Civil Liberties
Two years after the September 11 attacks, political leaders and the nation are still divided and uncertain about how to reform the U.S. intelligence and law enforcement communities. The expanded powers of the FBI and the Justice Department-for expanded surveillance, investigation, and detention under the Patriot Act-have been perceived by the media and the courts as an infringement of civil liberties and have come under attack. Some members of Congress have sought to cut off funding for portions of the act, civil liberties groups have filed lawsuits challenging its Constitutionality, and cities have passed resolutions forbidding local officials from cooperating with its enforcement. Despite the controversy, President Bush recently called for a further expansion of some Patriot Act provisions. On October 30, AEI visiting scholar John Yoo, former justice department official Alice Fisher, former congressman Bob Barr, and Stuart Taylor of National Journal discussed whether the intelligence-gathering powers of the government are sufficient to prevail in the war on terrorism, whether they infringe too far on civil liberties, and whether more fundamental structural reforms of the law enforcement and intelligence agencies are needed.
Alice Fisher
Latham and Watkins, LLP
Since September 11, the top priority of the Justice Department has been to prevent further terrorist attacks. The focus is on identifying the threats to our homeland, our interests abroad, and on using the legal tools to incapacitate those threats in the most effective manner. The mission is to protect America and preserve the fundamental freedoms our soldiers are abroad fighting for. To protect national security does not mean abandoning or even infringing upon civil liberties. The prerogative of the justice department is to use the legal tools that exist within the Constitution to combat terrorism and to use them to the fullest extent possible.
There has been a lot of debate about the tools that Congress provided in the Patriot Act. Congress passed the Patriot Act with a vote of 98 to 1 in the Senate and 357 to 66 in the House. The Patriot Act does three things: it removes legal barriers to information sharing that were prevalent before September 11, brings the law up to date with existing technology and enhanced penalties, and strengthens the laws in terrorism statutes. Many of the tools require the Justice Department to seek the sanction of the courts, which is a very important safeguard that is often overlooked. No court has found any of the tools in the Patriot Act unconstitutional.
Prior to September 11, there was next to no information sharing between intelligence and federal law enforcement. The Patriot Act tore down this wall and allowed sharing to go both ways. This has played out significantly in the last two years. One example is the group in Portland, Oregon, who decided to travel to Afghanistan and take up arms against the United States. They were unable to gain access to Afghanistan and were forced to travel back to the United States. Because the wall between intelligence and law enforcement had been torn down, the intelligence community shared this information with law enforcement, the suspects were identified, they have been charged, and two have plead guilty and will begin serving their sentence.
There are two controversial pieces of the Patriot Act: one is section 213, which relates to what is called a delayed notice, or "sneak and peak" search warrant. This enables the government to ask a court to order a search warrant of a home or business that allows investigators to search the material without giving immediate notice to the owner of the property. The investigators must give notice but are allowed to do so after the search has taken place. Opponents of the Patriot Act have incorrectly characterized this as a secret, warrantless, search, but a court must still be consulted and notice must be given at some reasonable time. These delayed notice warrants are designed so that investigators do not tip off the terrorists and let them know that the government is watching them. These have been allowed in drug cases for years, and they have been upheld by the courts.
Section 215 is also controversial. This provision allows the government to get materials or documents from institutions such as libraries or chemical plants. Again, investigators must go to a court to get one of these warrants. In this case, a Foreign Intelligence Surveillance Act (FISA) court made up of federal judges looks at the request and then orders a subpoena when it relates to a terrorism case. This is not spying on Americans and their habits; rather, it is about preventing terrorists from gaining safe havens in the nation's public libraries and chemical plants. Investigators need to go where the investigation leads, and they are checked by the Congress and by the courts. The government needs these tools to protect our nation.
Bob Barr
American Conservative Union
We must talk about the attacks on the Bill of Rights that have been carried out since September 11. I'm referring not just to the Patriot Act and the secrecy under which it has been implemented, but the whole range of government programs such as the TIPS program, the Matrix, and CAPS II. The list is relatively extensive, and the whole range of these programs reflects an approach to government that guts the Fourth Amendment. Administration officials constantly pay homage to the Fourth Amendment, the Bill of Rights, and the Constitution, but then go on to simply justify their infringements upon them. The administration has engaged in an effort to sweep aside any debate whatsoever on many of these issues by ridiculing those who raise questions about them.
When the administration has stumbled across a state legislature or local government that has voiced concerns about the Patriot Act, it has simply dusted itself off and kept going on the same track without any effort to entertain discussion or debate of these issues.
The issues at stake here are not arbitrary distinctions, as the administration claims; gathering evidence for foreign intelligence and gathering evidence for law enforcement is not an arbitrary distinction, but a principle that is firmly rooted in the Fourth Amendment. Do we want to live in a society in which the government can gather evidence on an individual who is protected by the Bill of Rights without any reason to suspect that they have done anything wrong? Prior to the Patriot Act the resounding answer was "no;" gathering evidence was limited to those suspected of committing criminal acts. If the administration believes that circumstances have changed significantly in light of recent events, then end the charade and let the government propose an amendment to the Constitution that modifies the Fourth Amendment.
Section 213, or the delayed notice provision, essentially translates to "no-notice" searches. Under this regime, the government can, in any criminal case, extend indefinitely the notice requirement. This essentially removes the Fourth Amendment because people will be unable to know whether they've been searched, constitutionally or otherwise. With regard to section 215, the government must go to a court to obtain a subpoena to search a library, but the courts are essentially forced to rubber stamp what the government wants to do in the name of national security.
When the judiciary committee asked for specifics about how the act was being implemented, the attorney general successfully avoided answering these questions for months until finally granting limited information to Chairman Sensenbrenner. These are questions of fundamental rights that must be discussed and debated in public. If we go down the road characterized by the Patriot Act and TIPS, we will dramatically change the fundamental relationship between the people and the government.
John Yoo
AEI
The Fourth Amendment does create a warrant-based procedure for engaging in searches with criminal law purposes. If someone is suspected of criminal activity, investigators can apply for a search warrant, and the granting of that warrant is a signal that the search is legitimate. The Fourth Amendment also allows for a separate set of searches that are just "reasonable," for which you don't need a warrant. In those cases, the Supreme Court has upheld that there does not have to be specific individualized suspicion of criminal activity, but a compelling government purpose or "special need." Examples of such cases include roadblocks to combat drunk driving, drug testing amongst government employees, and immigration checkpoints.
One category that has been recognized by the lower courts and reserved by the Supreme Court is national security searches. In the past the government has been allowed to proceed with searches of persons who are deemed a threat to our national security without first going to a court for a warrant, and courts have approved of this practice, which has gone on since Franklin Roosevelt's presidency. There is a separate system, so the question is not whether the Fourth Amendment prohibits the Patriot Act, which does require you to go to a court, but whether it appears to the Congress, the courts, and the executive branch that the needs of the government in fighting the war on terrorism are as important as the need to stop drunk drivers and illegal immigration. Most people would probably believe that this is a reasonable assumption because terrorism is a more direct threat to the country's survival than a lot of these other threats.
In a reasonableness analysis, the courts ask whether the government's purpose outweighs the intrusion on privacy rights. The September 11 attacks started a war, and the Supreme Court has consistently found that the government's ability to successfully conduct a war is the most compelling interest that exists. It has been deemed so important, in fact, that in the past it has unfortunately justified the internment of American citizens. That will hopefully never happen again, but it proves the seriousness with which the courts have approached questions of national interest in wartime. Things like the Patriot Act, TIPS, and FISA are all much more narrowly tailored and are subject to considerable oversight from Congress and the courts than previous acts have been.
Some people argue that the war on terrorism is really not a war, but something more like the war on drugs or the war on poverty, and that the government should not be able to access wartime powers just by calling this a war. My question is this: if the September 11 attacks had been undertaken by some foreign country, would we not all consider those to be acts of war? Why is it not deemed an act of war if this same action is undertaken by a private, nongovernmental organization? Why should the government be handicapped in the way it responds to a terrorist organization vis-à-vis the way it would respond to a nation-state?
The criminal law enforcement system is retrospective; its job is to find out who committed a crime after it has been committed and to bring that person to justice. Because of that, the government focuses on probable cause and whether there is reasonable proof that somebody was involved in wrongdoing. War is completely different; it is prospective in that the object is to try to stop something bad from happening using the information that is available. Therefore, the government must, at times, act according to a standard that is less restrictive than the probable cause standard in law enforcement. Intelligence agents must be able to examine habits and patterns to discern what might be about to happen. In battle we do not ask the government to go to a court to gain approval for tactics or intelligence gathering because it is not possible or reasonable under such circumstances. Because the enemy has chosen unconventional means to fight this war, there has been a lot of unnecessary confusion with regard to this question. We must be ready and able to fight this new war, a war against a very clever, educated, and responsive enemy that has shown willingness to use the most technologically advanced methods to attack our country.
AEI research assistant Andrew Kelly prepared this summary.
