How have my freedoms been curtailed? (apologies, this is a long one...)
Here's a link to the Patriot Act - it's 300 pages. No spin, just the text of the law. http://www.eff.org/Privacy/Surveillance/Terrorism_militias/hr3162.php
Below is a review of particular sections of the Patriot Act. I cribbed the highlights from a four-part article in Slate, here: http://slate.msn.com/id/2087984/
Section 215 modifies the rules on records searches. Post-Patriot Act, third-party holders of your financial, library, travel, video rental, phone, medical, church, synagogue, and mosque records can be searched without your knowledge or consent, providing the government says it's trying to protect against terrorism. Would you know if Section 215 had been used on you? Nope. The person made to turn over the records is gagged and cannot disclose the search to anyone. 215 does extend FBI power to conduct essentially warrantless records searches, especially on people who are not themselves terror suspects, with little or no judicial oversight. The government sees this as an incremental change in the law, but the lack of meaningful judicial oversight and expanded scope of possible suspects is pretty dramatic.
Section 218 amends the Foreign Intelligence Surveillance Act, a "bargain" struck in 1978 wherein the usual requirements for a police search—probable cause to believe a criminal act had occurred and a warrant—would be unnecessary in a teeny, tiny number of cases. That teeny, tiny number of cases just expanded dramatically.Secret searches can now be authorized by a secret court without public knowledge or Department of Justice accountability, so long as the government can allege there is any foreign intelligence basis for the search. Would you know if Section 218 had been used on you? Only if you were later prosecuted using information gathered pursuant to a FISA warrant. Then you'd have the opportunity to try to suppress that evidence in a regular court proceeding.
Section 213 is another extremely controversial part of the Patriot Act, engendering protest from across the political spectrum. By allowing the state to rummage first and let you know later (sometimes much later), the act upends the traditional requirement that the state advise you in advance that you are being searched. "Sneak and Peek" warrants extend sneak-and-peek authority from FISA searches to any criminal search. This allows for secret searches of your home and property without prior notice. Police used to have to "knock and announce" their intention of searching before executing any warrant. This gave the person being searched advance notice and a clear picture of what authorities were looking for. In 1978 FISA changed the law, allowing the FISA court to authorize sneak-and-peek warrants but only in cases where "foreign powers or their agents" were suspected of terrorism. The Patriot Act expands the use of these warrants if "immediate notification of the execution of the warrant may have an adverse result." Under Patriot, such warrants are no longer limited to terrorism investigations but now extend to include any criminal investigation at all. Moreover, the act requires only that notice be given of the search or wiretap "within a reasonable period of its execution," which may be extended by the court for "good cause shown." Would you know if Section 213 had been used on you? Eventually—they do still have to tell you that you've been searched, although the law provides that the period of time may be extended indefinitely for good cause.
Section 214 - "Pen registers" ascertain phone numbers dialed from a suspect's telephone; "Trap and trace" devices monitor the source of all incoming calls. Neither reveals the content of communication. Patriot removes the warrant requirement for these taps so long as the government can certify that the information likely to be obtained is "relevant" to an ongoing investigation against international terrorism... Section 214 doesn't change this standard but broadens the reach—making the FISA pen register/trap-and-trace power available in both criminal and foreign intelligence investigations, so long as the government merely certifies that the information obtained would be "relevant to an ongoing investigation." The probable-cause requirement in criminal cases is gone. Courts may not inquire into the truthfulness of the allegations before authorizing a tap. Section 216 clarifies that 214 applies to Internet communications.
Section 206 authorizes roving wiretaps: taps specific to no single phone or computer but to every phone or computer the target may use. It doesn't get as much attention as it should. If the government decides to tap a computer at the UCLA library, every communication by every user can theoretically be intercepted. Taps were formerly applicable only to specific phones. Under Patriot, the FISA court can authorize taps or intercepts on any phones or computers that the target may use. The foreign intelligence authorities can require anyone to help them wiretap. Previously, they could only serve such orders on common carriers, landlords, or other specified persons. Along with Section 220, which allows a judge to authorize national wiretaps rather than ones limited to her jurisdiction, this severely undercuts a judge's ability to monitor whether taps are being used appropriately and erodes the "particularity" requirement of the Fourth Amendment.
Section 505 authorizes the attorney general or a delegate to compel holders of your personal records to turn them over to the government, simply by writing a "national security" letter. Section 505 has garnered a lot less national attention than Section 215—the library records section of the act—which may be why it is invoked a lot more often. Section 505 authorizes the use of what's essentially an administrative subpoena of personal records. The subpoenas require no probable cause or judicial oversight. According to documents turned over to the American Civil Liberties Union as part of their FOIA lawsuit, the FBI issued enough national security letters since October 2001 to fill more than five pages of logs. What precisely those letters compelled is unknowable, since virtually every page of those logs were blacked out, ostensibly for security reasons. The government has refused to provide further information on how the letters were used.
Section 802 has received a lot of attention and is almost single-handedly responsible for alienating right-wing groups like the Eagle Forum, as well as fundamentalist Christians across the land. Why? Because it creates a new crime and could, critics say, be used someday to prosecute Operation Rescue protesters. Section 802 creates a category of crime called "domestic terrorism," penalizing activities that "involve acts dangerous to human life that are a violation of the criminal laws of the United States," if the actor's intent is to "influence the policy of a government by intimidation or coercion." There was no law like this before. The ACLU has conceded that despite the scary hypothetical applications, it knows of no abortion protester or environmental activist who has been prosecuted under the law. Would you know if Section 802 had been used on you: You'd likely figure it out right quick as they were hauling you away in handcuffs.
Sections 411 and 412. It's important to note from the outset that virtually all of the administration's unprecedented abuse of aliens—the indefinite detentions, the blanket secrecy, the lack of charges, and the removal of aliens to secret military brigs—have happened absent any legislative authority. While some provisions of Patriot make it easier for the government to treat aliens poorly, Patriot in no way authorized the worst reported abuses.Section 411 makes even unknowing association with terrorists a deportable offense. Section 412 allows the attorney general to order a brief detention of aliens without any prior showing or court ruling that the person is dangerous.
Conclusion
In studying and reporting on the most controversial aspects of the Patriot Act, we have attempted to be as evenhanded as possible. It bears repeating that the Bush administration has fostered a good deal of national anxiety by its simple refusal to release information allaying public fears about how the act is being implemented.
Immediately after Sept. 11, many Americans seemed to fall victim to an understandable fallacy: We believed that by surrendering our freedoms, we were buying national security. Slowly the haze of fear has cleared, and Americans have begun to demand that the freedoms we surrender correspond directly to national security. The parts of the Patriot Act that rankle most are those provisions that sweep normal criminal law enforcement under the looser procedural standards for fighting terror. It's important that the state be able to fight terror. No one disputes this. But it's equally important that the state not use the war on terror to gut the warrant requirement or undermine the First Amendment.
The best check on such encroachments should be a free and objective judiciary. But as we have noted several times in this series, many of the most disturbing Patriot provisions do away with judicial oversight altogether, while others permit judges to act as rubber stamps in ex parte proceedings—that is, hearings where only the government side is represented.
The next best check on such encroachments is public scrutiny, and, as we've suggested, that scrutiny is only beginning to be as demanding and impatient as it ought. But most Americans still do not believe that Patriot has in any way affected them. So it's worth noting that many of these provisions are used frequently—even if details are blacked out. Go back and look at the sections that ask whether you'd know if Patriot has been used against you. In most cases the answer is no.
We really can be safe without being afraid of our government. It simply requires that security measures be narrowly tailored to fit national security needs. Some parts of the USA Patriot Act meet this test. Some do not. And some are purely opportunistic. Before President Bush convinces Congress to "untie the hands of our law enforcement officials" by expanding the Patriot Act, as he proposed Wednesday, Americans need to begin a national conversation about which is which.
