Commentary

The USA Patriot Act: We Deserve Better

A version of this article orginally appeared in Liberty magazine.

If you think the Bill of Rights is just so much scrap paper, and the separation of powers doctrine has outlived its usefulness, then the USA PATRIOT Act, passed overwhelmingly on Oct. 25, is the right recipe to deal with terrorists. On the other hand, if you are concerned about Fifth Amendment protection of due process, and Fourth Amendment safeguards against unreasonable searches and seizures, then you should be deeply troubled by the looming sacrifice of civil liberties at the altar of national security.

To be sure, the Constitution is not a suicide pact. Government is legitimately charged with defending life, liberty, and property against both domestic and foreign predators. First among those obligations is to protect life. With America under attack, and lives at risk, civil liberties cannot remain inviolable. But that’s a far cry from asserting that they may be flouted to wage war against fanatics.

Proponents of the new bill surely understood that many of its provisions were incompatible with civil liberties. Yet rather than modify the offending provisions, the president and Congress decided to promote the bill as an expression of patriotism. Hence the acronym - USA PATRIOT - and its bloated title, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism. The sales pitch worked. Fearful of being labeled disloyal after the September atrocities, the House endorsed the bill 357-to-66, followed by a 98-to-1 rout in the Senate, with only Russ Feingold (D-Wis.) in opposition.

From its initial draft to its final adoption, USA PATRIOT zipped through in six weeks - gutting much of the Fourth Amendment in far less time than Congress typically expends on routine bills that raise no constitutional concerns. Congress’ so-called deliberative process was reduced to this: Closed-door negotiations; no conference committee; no committee reports; no final hearing at which opponents could testify; not even an opportunity for most of the legislators to read the 131 single-spaced pages about to become law. Indeed, for part of the time, both the House and Senate were closed because of the anthrax scare; congressional staffers weren’t able to access their working papers.

The negligible legislative record will make it difficult for courts to determine the intent of Congress. And because legislative intent matters to some judges - for example, Supreme Court Justices Stephen Breyer and David Souter - the USA PATRIOT statute might ultimately be invalidated as unconstitutionally vague. Ironically, Congress’ rush job, which facilitated passage of the bill, could be the cause of the bill’s downfall. The same law that was promoted as an act of patriotism might even provide a rationale for releasing the madmen who committed the horrific terrorist acts against the United States.

Yet the more acute objections to the new statute are substantive, not procedural. They fall into three main categories. First, any law with the potential to dramatically alter conventional notions of individual freedom should fastidiously guard against abuse. The doctrine of separation of powers, a centerpiece of our Constitution, has been a traditional buffer against such abuse. By requiring advance judicial authorization of certain executive actions, followed by judicial review to assure that those actions have been properly performed, our liberties are shielded from excessive concentrations of power in a single branch of government. As we shall see, the USA PATRIOT Act does not pass muster.

Second, if the new rules are at all justifiable, they are defended as a necessary instrument of anti-terrorism. If so, why do many of the provisions apply not only to suspected terrorist acts but also to everyday national security investigations and even ordinary criminal matters? In effect, our government has exploited the events of Sept. 11 to impose national police powers that skirt time-honored constraints on the state. The executive branch will not always wield its new powers in the service of ends that Americans find congenial. Better that the government be shackled by the chains of the Constitution.

Third, laws that compromise civil liberties must be revisited periodically to assure that temporary measures, undertaken in response to a national security emergency, do not endure longer than necessary. Such laws must contain sunset clauses; that is, the law should expire automatically within a short time of enactment - thus imposing on government the continuing obligation to justify its intrusions. In this instance, the Bush Administration rejected any sunset provision whatsoever. Congress demurred, and insisted on including such a provision; but it applied only to new wiretap and surveillance powers, not to the whole bill. Moreover, the sunset date was fixed at Dec. 31, 2005 - more than four years after passage of the legislation. Plainly, a shorter time frame - one year, or two years at most - would have been appropriate. If the emergency persisted, Congress and the president could reenact the law.

Skeptics might dismiss those objections as mere abstractions - civil libertarianism run amok - unless they are illuminated by concrete examples from the statute. Here, then, are just a few of the more egregious threats to personal freedom.

During the Carter administration, Congress passed the Foreign Intelligence Surveillance Act, which created a new federal court to approve electronic surveillance of citizens and resident aliens alleged to be acting on behalf of a foreign power. Until now, the FISA court granted surveillance authority if foreign intelligence was the primary purpose of an investigation. No longer. Under Section 218 of the USA PATRIOT Act, foreign intelligence need only be “a significant purpose” of an investigation. That sounds like a trivial change, but it isn’t. Because the standard for FISA approval is lower than “probable cause,” and because FISA now applies to ordinary criminal matters if they are dressed up as national security inquiries, the new rules could open the door to circumvention of the Fourth Amendment’s warrant requirements. The result: rubber-stamp judicial supervision of phone and Internet surveillance, even in regular criminal cases, and FBI access to medical, educational, and other business records that might conceivably relate to foreign intelligence probes.

The FISA revision is but one example of the government’s expanded powers to conduct searches and surveillance. There are others. Government will have access to some financial records, without notice or judicial review. While judicial approval is necessary to retrieve voicemail messages, the requisite court order can now be obtained with a minimal showing of relevancy. That same low standard governs traces on Internet surfing and email. Perhaps worst of all, under Section 213 of the Act, secret “sneak and peek” searches of physical property will be condoned in routine criminal investigations. Those searches can be conducted without knowledge of the property owner until a “reasonable” time after the search has occurred. No knowledge means no opportunity to contest the validity of the search, including such obvious infractions as rummaging through office drawers when the warrant authorizes a garage search, or even searching the wrong address.

On the money laundering front (Sections 301 through 377), the secretary of the treasury is empowered to label any jurisdiction a “primary money laundering concern,” in which case foreign banks will be required to disclose their customers and transactions. Predictably, the identified countries will be those with low tax structures and strict financial privacy laws. Yet there is little evidence that tax havens are a magnet for dirty money. In fact, when money is transferred across borders and back again, the risk of detection is high. That serves as a deterrent to such transactions. To punish nations that harbor terrorists and their assets, we should shut off U.S. access to financial institutions that refuse to provide evidence associated with the September carnage. We should also invoke existing bilateral agreements, and negotiate new agreements, waiving bank secrecy and requiring mutual cooperation when prosecuting terrorist acts.

Finally, civil libertarians are rightly alarmed that the attorney general can detain, for seven days, non-citizens suspected of terrorism. After seven days, pursuant to Section 412 of the Act, deportation proceedings must commence or criminal charges must be filed. Originally, the Justice Department had asked for authority to detain suspects indefinitely without charge. Congress could not be persuaded to go along. But the final bill, for all practical purposes, allows expanded detention simply by charging the detainee with a technical immigration violation. And if a suspect cannot be deported, he can still be detained if the attorney general certifies every six months that national security is at stake.

To illustrate the magnitude and scope of that problem, the Wall Street Journal reported on Nov. 1 that seven Democrats had filed Freedom of Information Act requests for a detailed accounting from Attorney General John Ashcroft on the status of more than 1,000 detainees. The lawmakers cited reports that “some detainees have been denied access to their attorneys, proper food, or protection from … physical assault.” Some of them were allegedly being held in solitary confinement even though they hadn’t been charged with any criminal offense. According to a representative of the New York Legal Aid Society, several Arab detainees had been limited to one phone call per week to a lawyer and, if the line was busy, they had to wait another week.

Maybe those reports will turn out to be groundless. But it’s time for some answers. Here’s what the Washington Post had to say in an Oct. 31 editorial: “The Department of Justice continues to resist legitimate requests for information regarding the 1,017 people it acknowledges having detained in its investigation of the September 11 attacks…. The questions are pretty basic. How many of the 1,000-plus are still in custody? Who are they? What are the charges against them? What is the status of their cases? Where and under what circumstances are they being held? The department refuses not only to provide the answers but also to give a serious explanation of why it won’t provide them.”

Ultimately, the Supreme Court may have to clarify how the civil liberties / national security tradeoff will unfold. This past term, in Zadvydas v. Underdown, the Court held that immigrants who have committed crimes cannot be detained indefinitely, but must be deported within a reasonable period or released. Moreover, said the Court, temporary and even illegal immigrants, not just U.S. citizens, are entitled to due process. Still, the Court noted that different rules may apply to immigrants who are denied entry, suspected of terrorism, or considered to be national security risks.

Thus, the law is murky; and the legislation passed in the aftermath of September’s events adds new elements of uncertainty. Nonetheless, the controlling principle is unambiguous. Any attempt by government to chip away at constitutionally guaranteed rights must be subjected to the most painstaking scrutiny to determine whether less invasive means could accomplish the same ends. The USA-PATRIOT anti-terrorism bill does not survive that demanding test. In a free society, we deserve better.

Robert A. Levy is a senior fellow in Constitutional Studies at the Cato Institute.