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The War on Terror
The War on Terror
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Law in The War on Terror

Looking at the Past Through the Lens of Law

The Patriot Act

In the weeks following 9/11, the federal government took a number of extraordinary steps to reassure and better protect terror-shocked Americans.   International flights were suspended. Border security was tightened.  And on 26 October 2001, Congress passed the Patriot Act with little discussion and virtually no dissent.  The House passed the measure 357-66; in the Senate, only Russ Feingold of Wisconsin voted no.

No doubt much of the unanimity lay in the fact that few lawmakers understood the entire bill.  It was, after all, more than 300 pages long and filled with details about electronic surveillance technology.  And in the wake of September 11, few would question the basic objectives of the bill: to increase the tools available to federal law enforcement agencies as they tracked down suspected terrorists.  In the simplest terms, the Patriot Act made it easier to tap people’s phones, laptops, and Blackberries; it enabled federal agents to more quickly access a wide range of materials that might provide information concerning terrorists and their plots—travel and rental records, telephone and internet logs, medical records, even library and bookstore records.

But in the months and years that followed, this national security measure drew enormous criticism.  The consensus that surrounded its passage collapsed and, instead, critics labeled the bill a clumsy violation of civil liberties, a misguided encroachment on fundamental rights in the name of national security.

Section 215

Critics of the Patriot Act argued that it violated the First, Fifth, Sixth, Seventh, Eighth, Thirteenth, and Fourteenth Amendments to the United States Constitution.  Yet most of the criticism focused on alleged violations of the Fourth Amendment—the part of the Bill of Rights that provides protection against unreasonable searches and seizures.

Section 215, which authorizes federal agencies to gather all sorts of confidential personal records during an investigation, drew the greatest attention.  Whereas older measures granted these agencies considerable investigatory powers—for example, the authority to obtain documents relating to the rental of vehicles and storage facilities—the Patriot Act went much further.  It empowered federal agencies to obtain medical records, library records, bookstore accounts, and internet search histories.  Federal investigators could monitor the websites a suspect visited and the books a suspect read.

Federal agencies did not have unchecked authority to obtain these records.  Like most laws of this sort, the Patriot Act acknowledged that federal agencies had to obtain court approval before initiating a search.  However, critics argued, the amount of court oversight was too small.  To obtain a court order or warrant, the agency needed only to show that the search served an authorized investigation.  The agency did not need to demonstrate that the individuals being targeted were part of some criminal activity—only that their records were “relevant” to an ongoing investigation.

Moreover, critics added, all of this was shrouded in secrecy.  The doctor, librarian, or bookstore owner ordered to provide information was forbidden to disclose the request to anyone—even a lawyer.

Roving Wiretaps and Sneak and Peek

Other critics focused more on the increased latitude given federal agencies in conducting electronic surveillance.  In the past, authorities had to obtain separate warrants for each electronic device they sought to tap—a cell phone, a laptop, an iPad. Under the Patriot Act, however, one warrant would allow authorities to tap multiple devices—in other words, set up a “roving wiretap.”

The provision seemed logical enough.  And, in fact, agencies investigating many more conventional crimes were already allowed to secure these one-warrant-fits-all court orders.  But as with Section 215, critics argued that the language of the provision was so vague that innocent parties only loosely connected with a suspected terrorist could become subject to this sweeping intrusion on their privacy.

Still other critics objected to the “sneak and peek” provisions of the Patriot Act. These allowed investigators to search now and inform the suspect later.  Once a warrant was obtained, federal agencies could secretly enter (break into) a suspect’s home or business and search the premises without giving immediate notice of their act.  Again, only the scope of this authorization was unprecedented.  Law enforcement agencies were already granted “sneak and peek” authority in certain situations, but these situations were very rare and carefully defined by the courts. Under the Patriot Act, however, more widespread use of this practice was permitted.  According to critics, the imprecise language of the act extended the power to “sneak and peek” to the investigation of even minor crimes.

Material Support

One other aspect of the Patriot Act drew significant criticism—a provision outlawing “material support” for terrorist organizations.  The provision was designed to shut down the flow of money to radical groups from donors around the world.  And even critics of the Patriot Act conceded that the objective was reasonable. But as with other parts of the law, “material support” was defined so vaguely, critics argued, that many otherwise protected and legitimate activities might be criminalized. The prohibition against “expert advice and assistance” was deemed particularly problematic.  Not every piece of assistance or expert advice furthered the illegal activities of an organization.  Yet as one legal scholar explained, the Patriot Act made no attempt to distinguish between legitimate and illegitimate advice or speech—instead it criminalized “pure speech, without any requirement that the government show that the speech has any connection to furthering terrorism.”

Revising the Patriot Act

As criticism of the Patriot Act mounted, members of Congress made several attempts to revise the measure.  And portions of the controversial bill were eventually changed. The “gag orders” preventing librarians and others from discussing an order to turn over materials were partially revised—now individuals could consult a lawyer before complying with these requests.  And libraries, while operating in their “traditional roles,” were no longer forced to surrender information as they were when the bill first passed.  Defenders of the Patriot Act cited these revisions as examples of the internal checks within the legislative process.  Perhaps, the bill as originally passed was imperfect, but through practice and debate its flaws were revealed and corrected.

Critics answered, however, that some of the most problematic features remained.  And they argued that the real danger lay within a further erosion of formerly protected rights under the mantle of national security.  As even some of the bill’s supporters acknowledged, during the excited, somewhat panicked months following September 11, mistakes were made.  What would happen if these wartime excesses quietly became peacetime practice?

Not the First Time

It’s not uncommon for the federal government to curtail civil liberties during wartime—for the sake of national security, presidents from John Adams to Abraham Lincoln, Woodrow Wilson to Franklin Roosevelt, all approved restrictions on rights of speech, privacy and due process granted greater protections during time of peace.

Nor is it uncommon for these actions to provoke heated controversy. The sedition acts of 1798 and 1918 are now all but universally condemned as flagrant violations of the First Amendment.  The internment of the Japanese during World War II is now considered a national disgrace—a misguided decision fueled by racism and paranoia.  Lincoln’s suspension of habeas corpus during the Civil War has drawn more mixed reviews.  Some consider his decision heavy-handed but necessary in order to save the union; others have labeled it unconstitutional and more damaging than beneficial.

How will history judge the Patriot Act?  Will it be judged necessary and effective—an important tool in the War on Terror?  Or will it, like the sedition acts, be judged misguided and excessive, a fear-driven abuse of civil liberties?

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