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Repeal or Revise – The Problems with the PATRIOT Act

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One of the few good things about the USA PATRIOT Act is that it has to be reviewed and renewed periodically by Congress. The bad news is that it is up for renewal at the end of this month and President Obama has recommended renewal of the act without substantive changes. This is not the kind of change many of his supporters wanted to see, and there are also many civil libertarians on the political right who would like to see the USA PATRIOT Act repealed or at least revised to eliminate some of the worst provisions.

There are several particularly bad sections of the act which run directly counter to the rights guaranteed and protected in the Bill of Rights and which ought to be considered for removal, or should to be enough to justify just not renewing the whole bill. If you aren’t aware of exactly what they are or why people object to them, here are the basics.

Section 206: Roving Wiretaps

This section allows the FBI to wiretap a phone or any wireless communications, including internet broadband transmissions, without having to get a warrant or even provide the target’s name or phone number. They can basically just tap into any communications they want with no due process and no court approval. In many cases they just park a van near your house and monitor all of your communications with no notice, no warrant and no accountability.  Recent evidence suggests that abuse of this power has been widespread in tens of thousands of cases in the last 5 years.  This is an obvious and direct violation of 4th Amendment protections and should be repealed or revised to require judicial oversight.

Section 213: Sneak and Peak

This section allows secret searches of private property without notifying the resident. They can come to your house when you’re away, break in and search it and not tell you until after the fact. This can also be extended to electronic searches, allowing them to be conducted without prior notification. Again, a clear violation of due process under the 4th Amendment which should be done away with .

Section 215: Library Records

This section lowers the standard of proof needed to get a court order to access private records. It gets rid of the requirement to identify the target of surveillance and prove the relevance of evidence they are going after. It allows the FBI to get special warrants for all sorts of privately held business or professional records without necessarily demonstrating their relevance to any specific investigation. It essentially allows “fishing expeditions” where they gather data on speculation and try to develop a case from it.  It can also lead to malicious requests where they tie up the resources of an organization or company.  Clearly an abuse of due process.

Section 505: National Security Letters

Authorizes the use of non-judicial National Security Letters in place of warrants  to compel the disclosure of sensitive information held by banks, credit companies, telephone carriers and Internet Service Providers, among others. Particularly troubling is that these letters also carry a provision prohibiting those who receive them from making any public disclosure of the fact, an effective gag order which violates several sections of the Bill of Rights.  The ACLU has filed a number of lawsuits in defense of victims of this abusive practice.

Section 802: Expanded Definition of Domestic Terrorism

This section broadens the definition of a terrorist to include domestic as well as international terrorists and does it with language sufficiently broad to potentially include many groups whose forms of protest or activism are contentious or disruptive, but not necessarily actually criminal or violent.  Under this definition groups like Greenpeace, Operation Rescue, environmental groups and many anti-government protest groups could be classed as terrorists.  There is also clear indication from the Department of Justice that they would like to expand application of this provision even further.  This is clearly contrary to free speech and free assembly provisions of the 1st Amendment.

Section 806: Asset Seizure

This expands on the practices we’ve already seen abused extensively in the War on Drugs, based around the illogical premise that if someone is merely suspected of a crime it is acceptable to seize their property or their financial assets as evidence or potential evidence, even if they are never charged or sent to trial.  In these cases the seized assets are almost never returned to the owner and there is no real process for redress or an appeal when charges are not filed.  This has been a problem withe the Drug War and the same concerns apply here.  This section and several related sections allow the seizure of the assets of organizations and individuals suspected of supporting terrorism even when they have been convicted of no crime.  This section builds on the extraordinarily broad language of section 981 of the US Civil Code  and goes beyond property used in a crime to include property which might be used in a future crime and property belonging to anyone defined as a “source of influence” of terrorism, whatever that means.  This concept is derived from the RICO statute, but without the rules requiring the proof of a criminal conspiracy which it includes.

Section 6001: Lone Wolf

This section allows the government to obtain secret surveillance orders against any individual even if they are not directly linked to any international terrorist group or foreign nation.  It basically allows them to spy on anyone and they don’t have to ever inform the subject they have done so.  The entire idea of secret warrants is contrary to the principle of due process under the 4th Amendment.  Under this provision the government can essentially spy on anyone on the pretext that they might potentially communicate with a terrorist or terrorist organization, or just because they think they look suspicious.  There are no real qualifications and secrecy means there’s no accountability either. 

Of course, all of these sections of the USA PATRIOT Act are to some degree interconnected with other parts of the act and it’s difficult to just eliminate a few of them without changing many other parts as well.  This suggests that allowing the entire set of laws to expire at the end of the month would be the most practical solution.  But at the very least, these 7 sections ought to be looked at closely and made to conform with the protections guaranteed in the Bill of Rights.  Searches should not be conducted without judicial oversight, suspects should not be investigated and put under surveillance without due cause and property rights should be respected unless someone is actually convicted of a crime.

The Bill of Rights exists for a reason and it has become clear that there is no threat to this nation from terrorism or other sources which justifies the multi-front assault on our rights which is embodied in the USA PATRIOT Act.  It is the greatest assault on our civil liberties as a people since the time of the Civil War.  If you feel that these draconian measures are justifiable for security reasons and okay in general because you aren’t a terrorist or likely to associate with terrorists, consider how broad this language is and how easily it could be abused and used against even the most innocent among us for political or personal reasons.

You don’t have to sit back and wait for Congressmen who have shown little interest in correcting their past errors to come to their senses. You can help them along by contacting your Congressmen or those on specific relevant committees using the convenient information on ContactingtheCongress.org.

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About Dave Nalle

  • http://blogcritics.org/writers/joseph-cotto/ Joseph Cotto

    Dave,

    I frequently refer to a favorite saying of my mother’s when the PATRIOT Act comes into question, and it is that “you have to give to get”. Fighting driven-to-the-death terrorists and other subversives in our technologically sophisticated age is no small feat, and the federal government has the responsibility to “protect and defend” its citizenry, as defined in the Constitution. If this entails the necessities of tapping one’s phone wires or engaging in reasonable searches and seizures in order to keep America safe or promote her interests, then that, frankly, is a very small price to pay in the long run.

  • Glenn Contrarian

    Dave –

    Yeah, Obama now owns the Patriot Act…and you, as an historian, should know that those in power are loath to let go of that power.

    But according to the Christian Science Monitor and the Cleveland Leader newspapers, ONLY THREE SECTIONS of the Patriot Act were extended by President Obama, and these were extended for only one year. Those sections are:

    * Authorize court-approved roving wiretaps that permit surveillance on multiple phones.
    * Permit surveillance against a so-called lone wolf, which is a non-US citizen engaged in terrorism who many not be part of a recognized terrorist group.
    * Allow court approved seizure of records and property in anti-terrorism operations

    So could you please clear this up? Is your article inaccurate or are these newspapers inaccurate or did I misunderstand what I read? Please let me know.

  • Glenn Contrarian

    The silence is deafening…and telling.

  • http://blogcritics.org/writers/dr-dreadful/ Dr Dreadful

    Give Dave a bit longer, Glenn. Busy as he is with his political activities, he does participate here noticeably less frequently these days.

  • Glenn Contrarian

    true – we’ll see.

  • http://www.republicofdave.com Dave Nalle

    I’m rather busy preparing materials and myself for CPAC. The more I can do now the more time I can spend giving interviews and writing articles for BC while I’m there. And it looks like it’s going to be a wild time and well worth reporting on.

    Anyway, different provisions of the PATRIOT Act work in different ways. Many of the changes it implemented were effectively permanent and cannot be revoked unless the original legislation is actively repealed. That’s even written into the law. All of the elements listed here, because they are interrelated, are part of the “three” sections which were renewed last year and are up for renewal again this year. Effectively they are really all part of the same aspect of the bill having to do with surveillance and data acquisition.

    There’s a legislative term for how these sections interrelate but it escapes my mind at the moment, but basically most of them are still in there because Section 215 sssumes their availability as part of its functionality.

    Did that make sense?

    Dave

  • http://www.republicofdave.com Dave Nalle

    Brainflash. The term is “severability.” The other sections are non-severable so they carry on in a dependent relationship to the primary provisions.

    Dave

  • Glenn Contrarian

    Okay, Dave – I’ll take you at your word. As I agreed in my first comment, Obama now owns that particular law, although the previous administration and every congressperson who voted for it also bears responsibility.

  • http://www.republicofdave.com Dave Nalle

    Well sure, with the exception of Ron Paul.