Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and

Obstruct Terrorism

USA PATRIOT Act of 2001Maryam Pourrasi, Amy Stewart, Kristin Evans, Michael Nocchiero

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Complementary Legislation

• Foreign Intelligence Surveillance Act of 1978• Immigration and Nationality Act• Electronic Communications Privacy Act• Bank Secrecy Act of 1970

USA PATRIOT Act in Practice• Target of investigation does not have to be an agent of a

foreign power; investigation cannot be based solely upon activities protected by First Amendment

• Intelligence collected has to be relevant to terrorism investigation; targets must only be linked to terrorism

• Increase in intelligence collection:– pen register, trap and trace, permits roving wiretaps– “sneak and peek” allowed– courts authorize warrants for investigations outside jurisdiction

• Federal National Security Letter (NSL) statutes• No mention of Fourth Amendment rights

USA PATRIOT Act Consensus Unraveled2003-2008

Civil Liberty Issues Emerge

• May 2002: Jose Padilla, US citizen, detained as “enemy combatant”

• August 2002: DoJ Inspector General Report cited 762 illegal aliens detained; 0 charged with terrorism related crimes

• November 2002: FBI requires Middle Eastern refugee center release information on all Iraqi-born clients

Are American Publics Concerned with Civil Liberties or Terrorism?

0.00%20.00%40.00%60.00%80.00% 65.90%

30.80% 23.60%32.20%

57.80% 66.90%Americans’ Civil Liberty Concerns, 2003

YesNo

Source: Adapted from poll conducted for the Associated Press by International Communications Research in September 2003

Impact on Government

• Drastically increases information collection and resources required for synthesis

• Significant strain on bureaucracy:– Financial Crimes Enforcement Network (FinCEN) – FBI: “hold until clear” policy

• Lack of internal consensus on boundaries of PATRIOT Act

Impact on Federal Intelligence Agencies

• “Lowered… the wall traditionally separating criminal investigation from foreign intelligence gathering.”

• Shift from criminal investigation to intelligence gathering

• All intelligence gathering starts from public sources

• Broader use of NSL statutes“The FBI is becoming the new CIA.”

–FBI Intelligence Analyst

PATRIOT Act Implementation at FBI

2003 2004 2005 20060

10,000

20,000

30,000

40,000

50,000

60,000

39,346

56,50747,221 49,425

FBI NSL Issuances

Source: March 2008 Department of Justice Office of the Inspector General Report, A Review of the Federal Bureau of Investigation’s Use of National Security Letters

Judicial Involvement

2007 200802468

1012141618

FISC Issuances of Tangible Item Orders • “Unless made in bad faith”

• Bars suits against information providers

• Contempt of court• National Security vs. Drugs

The Media “Investigates”

• New York Times reports warrantless monitoring of international communications in 2005

• President Bush admits to authorizing Terrorist Surveillance Program

• “As long as nothing big happens, the media is uninvolved.”

• “The media isn’t probing enough.”

The Legislative Debate• There hasn’t been another 9/11 vs. proof of effectiveness• Hearings in favor of both views through 2003• Intelligence Reform and Terrorism Prevention Act of 2004• USA PATRIOT Improvement and Reauthorization Act of 2005

– 4 Republicans join Democrats in Senate filibuster– “I don’t believe this is a partisan issue.” Senator Sununu (R-NH)

• April-June 2005: 16 different hearings on civil liberty violations to Committees on Judiciary

• Reauthorized in 2006• Congress has protected civil liberties by rejecting certain

legislation

Civil Liberty Interest Group Victories

“Effectiveness is disproportionately small compared with the extent of… the invasion of privacy they represent.”

• Muslim Community Association of Ann Arbor v. Ashcroft

• John Doe, Inc et al. v. Mukasey et al.

Sunset of the Bush Administration

• Terrorist Surveillance Program (TSP) expired in 2007

• Supreme Court and warrantless surveillance program

• Protect America Act and FISA Amendments Act of 2008 protect TSP

• Attorney General certifies defendants’ actions were lawful

“The real question is, ‘Does the PATRIOT Act work?’

There doesn’t seem to be a public case explaining the benefits of the tools the

PATRIOT Act provides.”

-Michelle Richardson, ACLU Lobbyist

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