The Patriot Act’s Controversial Legacy

The Patriot Act's Controversial Legacy george bush signs patriot act Then-President George W. Bush surrounded by members of Congress takes part in a signing ceremony for the USA Patriot and Terrorism Prevention Reauthorization Act, Thursday, March 9, 2006, in the East Room at the White House in Washington. (Ron Edmonds/AP)

By Michael Dorstewitz | Wednesday, 08 September 2021 06:54 AM

The youngest American voters can’t remember a pre-9/11 nation and have lived their entire lives under a government imbued with the immense capabilities authorized by the USA PATRIOT Act — investigative powers that are fantastic, terrifying, and consistently controversial.

The law’s name is an acronym standing for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism. It consisted of a raft of security reforms to ostensibly plug the holes exposed on 9/11 and enjoyed overwhelming bipartisan approval in Congress before President George W. Bush signed it into law a mere 45 days after the devastating terror attacks on New York, Washington D.C., and Pennsylvania.

But despite a name that almost no one could — or, at the time, would — object to, and with supporters on both sides of the aisle at nearly all levels of power and in all branches of government and law enforcement, the act generated controversy almost immediately.

And that concern has only intensified as civil libertarians raise concerns that, particularly with two decades of hindsight to judge it, the act went too far and gave intelligence-gathering agencies a dangerous degree of latitude.

"It was the opening volley in a series of measures that vastly expanded the U.S. government’s ability to conduct domestic surveillance," wrote the Brennan Center’s Elizabeth Goitein in an Aug. 25 analysis that argued for rolling back the act’s powers. "Over the same period, dramatic advances in technology further bolstered the government’s spying powers and rendered decades-old legal protections obsolete."

Among other changes it ushered in, the act:

  • Expanded the Electronic Communications Privacy Act of 1986 (known as the Wiretap Act), by allowing law enforcement to apply it to intercept computer and other digital and electronic communications.
  • Added credit card and banking information to a government database that law enforcement could access with court approval.
  • Permitted intelligence agencies to use "trap and trace" devices to track communications to a specific phone or computer, and to obtain "sneak and peek" warrants to search homes and offices — without the owner’s permission.
  • Broadened the legal justification to detain foreign nationals at U.S. ports of entry and created a new list of terror-related crimes.

Supporters say the act’s benefits far outweigh any problems. They note that no intelligence or security failure on par with 9/11 has occurred in the U.S. during the act’s 20-year lifespan.

Early on, some concerns were dismissed as (what would now be called) "fake news."

"Most of the tales of abuse and misuse are based on mistaken information," the Heritage Foundation’s Paul Rosenzweig said three years after the act was signed. "Even Russ Feingold, the only senator to vote against the Patriot Act, says that he is in favor of 90% of it."

Proponents argue that the law:

  • Strengthened America’s ability to detect, prevent, and prosecute the financing of terrorism.
  • Enhanced scrutiny of foreign jurisdictions and financial institutions.
  • Added measures within the financial system to combat corruption.
  • Expanded surveillance authority to close loopholes terrorists could count on to protect plots from prying eyes.
  • Improved communications between government agencies.

Rosenzweig emphasized that final point in his defense, noting that "information-sharing authorities have been put to good use since September 11."

Many of the law’s proponents will concede that Americans do surrender some degree of previously enjoyed freedom. But they counter that those lost liberties are, for the most part, insignificant and in the tradeoff the U.S. attains greater overall safety and security.

But civil libertarians believe that trading freedom for security is a slippery slope. It’s a bargain that’s tempted Americans since the country’s founding, with Benjamin Franklin famously warning: "Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety." Had he been alive today, Franklin may well have joined the ranks of those opposing the PATRIOT Act on the grounds that it has allegedly:

  • Reduced essential checks and balances and government oversight.
  • Diminished the ability of the public to see accountability from its leaders.
  • Hamstrung the ability of the accused to challenge a government search in court.
  • Permitted government officials to target citizens who are not under criminal investigation.
  • Resulted in countless cases of unlawful searches and imprisonment.

One of the most prominent opposition voices is that of Sen. Rand Paul, R-Ky., who recalled his 2015 PATRIOT Act filibuster and the resistance and fearmongering that accompanied it more than a decade after the Sept. 11 terror plot.

"My filibuster was not popular with other senators because it kept them in Washington over a Memorial Day weekend," Paul wrote in an opinion piece for the Washington Examiner last year. "I still remember one or two hotheads muttering and directing profanity under their breath. I have to admit I may have given them right back some choice words of my own.

"A senior Republican in leadership admonished me that I’d be sorry if terrorists struck the United States while the PATRIOT Act was expired. I responded, ‘Couldn’t we just rely on the Constitution for a few hours, like we did for over 200 years?’"

Just as the 9/11 attacks helped bind a wounded nation in common resolve, the USA PATRIOT Act severed some of those fragile bonds and speeded up the polarization of America.

One of the act’s most contentious portions is Section 215, which detractors say allows the government to violate the Fourth Amendment’s prohibition of unreasonable searches and seizures. This provision has permitted the use of warrantless searches, notwithstanding that the courts have repeatedly held that warrantless searches are per se unreasonable — with limited exceptions.

Section 215, however, expired on March 15, 2020, when lawmakers were unable to cobble together the votes to either renew it or approve an alternative. Civil libertarians cheered the provision’s death, saying the demise brought a long history of government abuse and overreach to an end.

The act’s opponents have also targeted Section 505, which permitted the government to impose gag orders and issue National Security Letters to demand customer records from businesses — based solely on the target’s speech.

Because of its apparent First Amendment violation, Section 505 drew criticism from the American Civil Liberties Union.

"Before the PATRIOT Act, the FBI could use this invasive authority only against suspected terrorists and spies," ACLU attorney James Jaffer said. "Now it can issue National Security Letters to obtain information about anyone at all. This should be disturbing to all of us."

The perils of endowing investigators with such broad powers can be seen in the case of Nicholas Merrill, a New York-based administrator of an Internet service provider who was served with an FBI National Security Letter request for data in 2004 — accompanied by an open-ended, lifelong gag order.

But rather than comply, Merrill fought the FBI and the Justice Department in the Doe v. Ashcroft lawsuit, litigation that sent Merrill on an 11-year legal odyssey.

"I find it kind of upsetting that there's still so much secrecy surrounding these powers and their actual use, even to this day," Merrill told NPR on the 10th anniversary of the PATRIOT Act’s creation. "It's time to have an open discussion about the direction that our country's going in, in terms of all this secrecy and justifying everything with national security."

On Sept. 14, 2015, 11 years after Merrill was served with the initial NSL, a New York federal district court judge finally lifted the gag order.

Original Article