History of The USA PATRIOT Act - Judicial and Legislative Challenges

Judicial and Legislative Challenges

A number of sections were struck by the courts. Section 805 of the Patriot Act allowed the U.S. government to prohibit citizens from providing material support for specially designated terrorist organisations, including "expert advise and assistance." Two organisations so designated were the Kurdistan Workers Party (in Kurdish it is the Partiya Karkerên Kurdistan, or PDK) and the Liberation Tigers of Tamil Eelam (also known as either the Tamil Tigers, the Ellalan Force or the LTTE). The Humanitarian Law Project supported both groups, and brought a civil action against the government complaining that the law was unconstitutional. The Federal court agreed and in a decision brought in December 2004 struck down section 805(a)(2)(B) because, in the courts view, it violated the First and Fifth Amendments to the United States Constitution as it was so vague that it "could be construed to include unequivocally pure speech and advocacy protected by the First Amendment." In the decision, the judge determined that this vagueness would cause a person of average intelligence to guess whether they were breaking the law, and thus potentially cause a person to be charged for an offence that they had no way of knowing was illegal. The vagueness may also have the effect of allowing arbitrary and discriminatory enforcement of the law, as well as possible chilling effects on First Amendment rights. Soon after the decision, the Department of Justice released a statement that "The provision at issue in today's decision was a modest amendment to a pre-existing antiterrorism law that was designed to deal with real threats caused by support of terrorist groups. By targeting those who provide material support by providing 'expert advice or assistance' the law made clear that Americans are threatened as much by the person who teaches a terrorist to build a bomb as by the one who pushes the button."

Title V of the Patriot Act amended the ECPA's National Security Letter (NSL) provisions (18 U.S.C. § 2709). These were challenged by the ACLU, who filed a lawsuit on April 9, 2004 on behalf of an unknown party against the U.S. government. The specifics of the original case brought by the ACLU is not known, except that the unknown party is an internet service provider, and the case involves either wiretaps or secretly subpoenaed customer records from telephone and internet companies — ostensibly in the course of investigating possible terrorist activity. Due to the NSL provisions, the government would not let the ACLU disclose they had even filed a case for nearly a month, after which they were permitted to release a heavily redacted version of the complaint. The ACLU argued that the NSL violated the First and Fourth Amendments of the United States Constitution because section 2709 failed to spell out any legal process whereby a telephone or internet company could try to oppose an NSL subpoena in court. They also argued that section 2709 prohibited the recipient of an NSL subpoena from disclosing that they had received such a request from the FBI, and therefore outweighed the FBI's need for secrecy in counter-terrorism investigations. The Court subsequently found the NSL provisions of the ECPA unconstitutional. It reasoned that it could not find in the provision an implied right for the person receiving the subpoena to challenge it in court as is constitutionally required. The court found in favour of the ACLU, and declared the provision unconstitutional. The finding of unconstitutionality essentially dismisses any claimed presumptive legal need for absolute secrecy in regard to terrorism cases. However, the USA Patriot Act is affected only if the limits on NSLs in terrorism cases also apply to non-terrorism cases such as those authorized by the Act and even though the NSL was dropped, the John Doe remained under a gag order.

Legislative action was also undertaken by Bernie Sanders (I-VT), Jerrold Nadler (D-NY), John Conyers Jr., Clement Leroy Otter (R-ID) and Ron Paul. They proposed an amendment to the Commerce, Justice, State Appropriations Bill of 2005 which would cut off funding to the Department of Justice for searches conducted under section 215. The amendment initially failed to pass the House with a tie vote, 210–210. Although the original vote came down in favor of the amendment, the vote was held open and several House members were persuaded to change their votes. However, on June 15, 2005 they made a second attempt to limit section 215 searches in an amendment to another House appropriations bill and this time it passed with a vote of 238-187 in favor of the Sanders amendment.

Not all proposed legislation was against the Patriot Act, however. In July 2004, Senator Jon Kyl introduced the Tools to Fight Terrorism Act into the Senate. In a statement given on September 13 to the Senate Committee on the Judiciary, Senator Kyl stated his concern that "Congress has enacted no major antiterror legislation since the passage of the USA Patriot Act almost three years ago." The bill would have allowed FBI agents to seek warrants for surveillance of "lone wolf terrorists," allowed greater sharing of intelligence between federal authorities and state and local authorities, punish those making terrorism hoaxes, and impose 30-year mandatory-minimum penalties for possession of shoulder-fired anti-aircraft missiles, atomic and radiological bombs, and variola virus. However, perhaps due to the increasingly controversial nature of the Act, the Senates did not further consider the proposed legislation.