By David L. Hudson Jr., First Amendment Scholar
Updated September 2012
Since its passage 45 days after the Sept. 11, 2001, terrorist attacks, the USA Patriot Act has been a lightning rod for controversy. It has taken center stage in a vigorous debate over the proper balance between national security and individual liberty.
Supporters contend the Patriot Act is responsible for preventing further catastrophes. Sen. Mitch McConnell, R-Ky., said in Congress in April 2004 that “the biggest hero to emerge from the hearings before the 9/11 Commission has been the Patriot Act.” In March 2006, President George W. Bush credited the Patriot Act with helping “break up terror cells in Ohio, New York, Oregon and Virginia.” “We’ve stopped 28 terrorist attacks since 9/11,” said James Carafano, a homeland security expert at the Heritage Foundation, four years later. “The Patriot Act has been a big part of that.”
Detractors counter that the Patriot Act represents a loss of individual liberty and a naked grasp for power by the executive branch of government, particularly over the judicial branch. Robert Levy, senior fellow in constitutional studies at the Cato Institute, has written that the Patriot Act represents “the looming sacrifice of civil liberties at the altar of national security.”
Congress approved the Patriot Act by an overwhelming margin shortly after the infamous terrorist acts. The House voted 357-66 in favor of the measure, while the Senate voted 98-1 with only Sen. Russ Feingold, D-Wis., dissenting. President Bush signed the behemoth bill into law on Oct. 26, 2001. The name of the act perhaps helped ensure its easy passage; USA PATRIOT stands for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.
The massive law, 342 pages long, amends at least 15 separate federal laws, including the Foreign Intelligence Surveillance Act of 1978, the Electronic Communication Privacy Act of 1986, the Computer Fraud and Abuse Act and the Family Education Rights and Privacy Act.
The law permits roving wiretaps and so-called “sneak and peek” warrants, adds new terrorist crimes, knocks down the wall between foreign and domestic intelligence, amends the definition of domestic terrorism and makes many other changes too numerous to catalog.
John Whitehead, founder of the Rutherford Institute, has written that “the Patriot Act violates at least six of the ten original amendments known as the Bill of Rights — the First, Fourth, Fifth, Sixth, Seventh and Eighth Amendments — and possibly the Thirteenth and Fourteenth as well.”
Most of the criticism of the Patriot Act concerns its seeming infringements on Fourth Amendment rights. The Fourth Amendment prohibits government officials from engaging in “unreasonable searches and seizures.” Normally, the Fourth Amendment requires law enforcement officials to obtain a warrant based on probable cause before searching a person’s home. The standards are relaxed under FISA if the subject is suspected of being, say, a foreign spy. The Patriot Act lowers those standards even more.
The American Civil Liberties Union and other groups have mounted a hearty campaign of opposition to the Patriot Act, challenging several of its provisions in federal courts. In its 2009 report, Reclaiming Patriotism: A Call to Reconsider the Patriot Act, the ACLU wrote: “The Patriot Act eroded our most basic right — the freedom from unwarranted government intrusion into our private lives — and thwarted constitutional checks and balances.”
As time passed, more members of Congress also objected to certain provisions of the law. This criticism led to modifications of several provisions. At the same time the executive branch and some legislative leaders called for a strengthening of some provisions. They also called for certain provisions in the Patriot Act that were set to expire at the end of 2005 to be made permanent.
Though most objections to the Patriot Act center on the Fourth Amendment, some critics contend that the act also intrudes deeply on fundamental First Amendment rights. The ACLU filed a lawsuit in July 2003 on behalf of six groups, several of which provide some form of support to Muslims in America, challenging Section 215 of the Patriot Act. In Muslim Community Association of Ann Arbor v. Ashcroft, the plaintiffs contended that Section 215 violates the First Amendment.
Section 215 allows the FBI to “make an application for an order requiring the production of any tangible things for an investigation to obtain foreign intelligence information … providing that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.”
Previously, the FBI could only obtain business records from vehicle rental agencies, transport services, storage facilities and similar places. Now, Section 215 allows the government to obtain “any tangible things,” which can include business records and individuals’ library records, health-care records, logs of Internet service providers and other documents and papers.
Section 215 also provides for judicial oversight of all FBI requests for such information. But there is a big dispute between the government and civil liberties advocates over how the language of the act on this point should be interpreted.
The act says the government must make an application for “any tangible things” to a FISA court judge or U.S. magistrate judge. The act reads:
“Upon application … the judge shall enter an ex parte (in the interest of one side only) order as requested, or as modified, approving the release of records if the judge finds that the application meets the requirements of this section” (50 USC 1861 — at (c)(1)).
The requirements presumably would include the provision that “such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution” (50 USC 1861 — at (a)(1)), as mentioned above.
However, according to the ACLU, the FISA court merely rubber-stamps all requests because all the FBI has to show is that the records are sought for an authorized investigation. The wording of the law appears to allow for more discretionary review than suggested by the ACLU, but it is safe to say that the standards for allowing release of information are minimal. A judge who reviews an application has less room to reject the request than in other situations. There is no requirement for a showing of probable cause, meaning the FBI does not have to show any reason that it believes the target of the surveillance order is engaged in criminal or terrorist activity. That person could be innocent.
Section 215 also provides: “No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.” This gag order would prevent a library, for example, from ever notifying its patrons that the government has requested information from it under Section 215.
In briefs in its lawsuit, the ACLU wrote that this “gag provision is manifestly inconsistent with the First Amendment.” In a July 2003 publication,Unpatriotic Acts: The FBI’s Power to Rifle Through Your Records and Personal Belongings Without Telling You, the ACLU wrote: “If the First Amendment means anything, it means that the government cannot impose an indefinite gag order without reference to the particular facts of the particular case.”
Others contended the ACLU’s attack against Section 215 was overblown. Heather Mac Donald, a fellow with the Manhattan Institute, argued in an August 2003 column in The Washington Post that “Section 215 merely gives anti-terror investigators the same access to such records as criminal grand juries, with the added protection of judicial oversight.” She rejects the staunch opposition to the provision by many in the library community, writing: “By publicly borrowing library books, patrons forfeit any constitutional protections they may have had in their reading habits.”
However, Jameel Jaffer, an ACLU staff attorney at the national office, insisted that Section 215 violated the First Amendment. “If people think that the government is looking over their shoulders to see what books they are reading or what Web sites they are visiting, many are not going to read those books or visit those Web sites,” he said. “Some of this speech that will be silenced is speech that is important to an open democracy.”
“Many provisions of the Patriot Act are absolutely a First Amendment threat,” Jaffer said. “Often there is a greater chill on free expression not from direct censorship but from government monitoring.”
The government filed a motion to dismiss the Section 215 case, contending the plaintiffs lacked standing to challenge the section. Arguments were heard in December 2003 before U.S. District Judge Denise P. Hood in the Eastern District of Michigan.
Judge Hood did not issue an opinion until Sept. 29, 2006. In Muslim Community Association of Ann Arbor v. Ashcroft, Hood denied the government’s motion to dismiss on standing grounds. However, she noted that Section 215 had been modified significantly since the lawsuit filing. When Congress passed amendments to the Patriot Act in March 2006, it substantially amended Section 215. Under current law (50 U.S.C. 1861(a)(d)), a person who receives a request for such records may disclose the request to “an attorney to obtain legal advice or assistance with respect to the production of things in response to the order.” Another section of the law also requires the FBI to include in its records requests “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation.”
Hood gave the plaintiffs 30 days to decide whether they would like to amend their original complaint to challenge the constitutionality of the new version of Section 215. On Oct. 27, 2006, the ACLU announced that it would withdraw its lawsuit over Section 215.
“While the reauthorized Patriot Act is far from perfect, we succeeded in stemming the damage from some of the Bush administration’s most reckless policies,” said ACLU associate legal director Ann Beeson in a press release. “The ACLU will continue to monitor how the government applies the broad Section 215 power and we will challenge unconstitutional demands on a case-by-case basis.”
The ACLU spent six years bringing another case related to Section 215 to its conclusion in 2010, again winning moderate concessions from the government.ACLU v. Ashcroft saw the ACLU sue on behalf of “John Doe,” who had received a seemingly indefinite gag order after a National Security Letter (NSL) forced him to disclose a client’s records. After numerous appeals, John Doe was given the right to reveal his name as Nicholas Merrill, but was still required to remain mum on the nature of the disclosure. The U.S. district court also released a less-redacted version of the original NSL.
In a coordinated effort in October 2011, the ACLU in New York and the Electronic Frontier Foundation in Florida filed separate lawsuits over data collection under the Patriot Act. Both lawsuits seek to require the Department of Justice and the FBI to release all information requests allowed under Section 215 of the Patriot Act.
Additional legal challenges
Another provision of the Patriot Act broadened the definition in federal law of providing “material support or resources” to terrorist organizations. That provision, Section 805(a)(2)(B), added “expert assistance or advice” to the definition of “material support” to terrorists.
Five organizations and two U.S. citizens (including a former administrative law judge) challenged the provision as unlawful. These plaintiffs sought to provide support to the lawful, nonviolent activities of Kurdistan Workers’ Party and the Liberation Tigers of Tamil Eelam, two groups that, during the Clinton administration, then-Secretary of State Madeleine Albright had designated as “foreign terrorist organizations.”
The plaintiffs argued that the ban on “expert advice and assistance” was unconstitutionally vague and could bar protected First Amendment activity, such as assisting one of the groups in petitioning the United Nations, providing legal assistance in negotiating peace agreements or advising on international law. In March 2004 in Humanitarian Law Project v. Ashcroft, U.S. District Judge Audrey B. Collins agreed that the “expert advice and assistance” language was too vague.
“The ‘expert advice or assistance’ Plaintiffs seek to offer includes advocacy and associational activities protected by the First Amendment, which Defendants concede are not prohibited under the USA Patriot Act,” Judge Collins wrote. “Despite this, the USA Patriot Act places no limitation on the type of expert advice and assistance which is prohibited, and instead bars the provision of all expert advice and assistance regardless of its nature.” Collins, however, declined to find the provision substantially overbroad on its face: “The Court therefore declines to apply the ‘strong medicine’ of the overbreadth doctrine, finding instead that as-applied litigation will provide a sufficient safeguard for any potential First Amendment violation.”
“This provision is one of the most extreme of the Patriot Act’s many terms, because it criminalizes pure speech, without any requirement that the government show that the speech has any connection to furthering terrorism,” said David Cole, a Georgetown law professor who represents the plaintiffs in the case. “That will by definition chill protected First Amendment activity.”
In June 2004, a jury in Idaho acquitted Sami Al-Hussayen, a graduate student accused of providing “expert assistance” to terrorists through a Web site. The jury reached its verdict after seven days of deliberation. “The message is that the First Amendment is important and meaningful in this country,” said David Nevin, lead attorney for Al-Hussayen. “The system worked.”
Another key dispute was Holder v. Humanitarian Law Project, the only Patriot Act case yet argued before the Supreme Court. In June 2010, the Court ruled in the government’s favor, rejecting First Amendment and other constitutional challenges by a 6-3 vote. The Court held that the government could prohibit giving even training or advice on peaceful activities to designated terrorist groups, a finding that Humanitarian Law Project President Ralph Fertig called “Earth-shattering” in an e-mail to the First Amendment Center.
Section 505 and the National Security Letter lawsuit
Another Patriot Act provision that has led to federal court challenges is Section 505, which expands the FBI’s authority to issue National Security Letters demanding customer records from businesses. Before Section 505 took effect, the FBI could issue NSLs only on those suspected to be terrorists or foreign spies. Now, according to the ACLU, the FBI could use its powers to obtain information on anyone. Similar to Section 215, Section 505 also prohibited businesses or individuals who received requests under the section from disclosing that fact to anyone. Critics charge that this gag-order provision violates First Amendment rights.
“Before the Patriot Act, the FBI could use this invasive authority only against suspected terrorists and spies,” Jaffer said in an ACLU news release. “Now it can issue National Security Letters to obtain information about anyone at all. This should be disturbing to all of us.”
Two ACLU lawsuits alleged that the FBI’s NSL powers, as amended by Section 505 of the Patriot Act, violate the First Amendment by giving the agency the power to force the disclosure of sensitive, personal information without adequate safeguards.
In Doe v. Ashcroft (2004), U.S. District Judge Victor Marrero in New York ruled that Section 505 violated the First Amendment. The judge wrote: “Democracy abhors undue secrecy” and “an unlimited government warrant to conceal, effectively a form of secrecy per se, has no place in our open society.”
In Doe v. Gonzales (2005), U.S. District Judge Janet Hall in Connecticut lifted a gag order imposed on librarians who had received a National Security Letter from the FBI asking for records from a library computer.
The government appealed both decisions to the 2nd U.S. Circuit Court of Appeals. On May 23, 2006, a three-judge panel issued its opinion in Doe v. Gonzales, which dealt with both the New York and Connecticut cases.
The 2nd Circuit remanded the New York case back to the federal trial court, noting that Section 505 had been substantially amended by the USA Patriot Improvement and Reauthorization Act of 2005. “The Reauthorization Act has substantially shifted the legal footing on which Doe I stands,” the court wrote. The appeals court asked that the trial court conduct a First Amendment analysis of the revised version of National Security Letters provision.
As for the lawsuit from Connecticut, the 2nd Circuit determined that the case was moot because the government had conceded that the librarians could reveal their identities.
In another case connected to Section 505, the 2nd U.S. Circuit Court of Appeals ruled in Doe v. Mukasey (2008) that the FBI must seek the review of a federal court when the agency orders Internet service providers to keep secret its demands for information. Still, the ruling was a partial victory for the government because it kept the nondisclosure provisions intact as long as the government initiates the review.
In June 2012, the Justice Department revealed for the first time all nine of the versions of national security letters it issues. The requests range from basic information about the address and length of service for Internet or phone service accounts to full billing or transactional records. The number of NSLs issued yearly by the FBI, according to the Department of Justice, has ranged in the tens of thousands since the passing of the Patriot Act, peaking at 56,507 in 2004 before dropping to 16,511 in 2011. A December 2010 letter from Attorney General Eric Holder to Sen. Patrick Leahy asserts that recipients of NSLs have been told since 2009 of their right to challenge the built-in gag order, but that only a handful have actually done so.
Legal battles over Patriot Act revisions to FISA
The ACLU has filed a series of lawsuits and motions against the Foreign Intelligence Surveillance Court (FISC), which is charged with approving orders for electronic surveillance and physical searches for the “purpose of obtaining foreign intelligence information” on foreign nationals within the United States. The ACLU says it is trying to bring more transparency to an extremely opaque organization.
In December 2007, the ACLU filed a motion in FISC for the release of court orders and government pleadings related to a National Security Agency surveillance program that had been conducted without the authorization of the FISC. The court agreed that it had jurisdiction over the documents, but refused to release them, asserting that there was neither a tradition of public access for releasing FISC surveillance materials nor logical benefit to the public that would outweigh damage to national security.
The ACLU filed another motion seeking to participate in FISC proceedings concerning its oversight role in regards to a 2008 amendment to the Foreign Intelligence Surveillance Act. That enabled, within strict limits, the targeting of non-U.S. citizens outside the United States in order to acquire intelligence information. In December, the FISC denied opening its records to the ACLU for the same reasons as in the 2007 decision. It also denied the ACLU’s participation in the proceedings on the grounds that the group could offer no meaningful assistance and that appropriate oversight mechanisms were already in place.
Legislative, community responses
The Patriot Act has also engendered opposition at the local and state level, as many individuals and local legislators express concerns about particular provisions of the act. At the federal level, several bills introduced in Congress would have changed or repealed parts of the Patriot Act. These measures, which are no longer active in Congress, included:
The Justice Department drafted another bill, the Domestic Security Enhancement Act of 2003. Copies of the so-called Patriot II measure were leaked, which led to widespread opposition. The proposed Patriot II contained many provisions that caused alarm among free-speech and privacy advocates. For example, under the measure, federal agents would not need a subpoena to obtain consumer credit records. Under current law, they do need a subpoena. The measure would have provided less public access to information about terrorist detainees and related investigations. Amid the outcry over such provisions, the Patriot II measure was never formally introduced in Congress.
The Security and Freedom Ensured Act of 2003, or SAFE, sought to amend some of the more controversial provisions of the Patriot Act. This bill, which had bipartisan support, would have amended Section 215 by requiring the FBI to have “specific and articulable facts” connecting records to a foreign agent. In April 2004, Sen. Craig said in Congress: “I am not seeking to repeal any provision of the Patriot Act but rather to salvage it by making necessary, albeit minor, amendments to it in order to safeguard individual liberties while preserving the very important law enforcement authorities it grants.” The measure failed.
In 2005, a revised version of the SAFE Act and the USA Patriot and Terrorism Prevention Reauthorization Act of 2005 (H.R. 3199) were introduced. The latter bill, signed into law in March 2006, like the SAFE Act, modified some of the Patriot Act’s controversial provisions. However, it also made permanent several other provisions of the original Patriot Act. The act represented a compromise measure of sorts between those who wanted to extend and expand the provisions in the Patriot Act and those who wanted to modify them.
Many state and local legislative bodies have pushed back against the Patriot Act, passing resolutions in opposition to the law. DiscoverTheNetworks.org puts that number at 414 communities across 43 different states. Alaska, California, Colorado, Hawaii, Idaho, Maine, Montana and Vermont have all passed statewide resolutions, according to the ACLU.
For example, Montana’s April 2005 resolution opposes several provisions of the Patriot Act and states that the “59th Montana Legislature urges the Montana Congressional Delegation to vigorously oppose any pending and all future federal legislation if the legislation infringes on the civil rights and civil liberties of American citizens.”
The opposition did not stop Congress from renewing most provisions of the Patriot Act in March 2006. Section 224 had provided that several provisions of the act would expire unless Congress renewed them.
Later that month, President Bush signed into law the reauthorization law that made many provisions of the Patriot Act permanent. It extended the sunset period of the controversial Section 215 for four more years. Perhaps because of widespread opposition to parts of the law, the act also included many provisions designed to ensure a level of civil liberties protections.
In May 2011, President Barack Obama approved a four-year extension of several provisions of the Patriot Act. One of these is the controversial Section 215. Todd Hinnen, acting assistant attorney general for National Security,testified before the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security, in March 2011: “Section 215 has been used to obtain driver’s license records, hotel records, car rental records, apartment leasing records, credit card records, and the like. It has never been used against a library to obtain circulation records.” Despite this reassurance, the measure remains controversial as some believe it is ripe for abuse.
The debate over how to properly calibrate the balance between security and liberty will never end, particularly in this age of global terrorism and weapons of mass destruction. The Sept. 11 terrorist attacks showed that government leaders must act to ensure that we can protect our nation from al-Qaida and other terrorists. However, many believe that the government must not sacrifice civil liberties in the well-meaning efforts of increased security.
In 1928, U.S. Supreme Court Justice Louis Brandeis wrote in his dissenting opinion in the wiretapping case Olmstead v. United States (1928): “Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
Many people believe that government officials have encroached on individual liberty by passing the Patriot Act and subsequent expansions and amendments out of well-meaning motives — to combat the undoubted evils of terrorism. However, questions persist as to whether at least some of these provisions were undertaken with a proper understanding of the Constitution and the First Amendment.