History of The USA PATRIOT Act - Opposition Grows

Opposition Grows

After the USA PATRIOT Act was passed it remained controversial, and began to be questioned by some members of Congress. On June 13, 2002 the House Committee on the Judiciary wrote a letter to Attorney General Ashcroft asking 50 questions about the use and effectiveness of the Act. In the letter they stated that "he Committee is interested in hearing from you and FBI Director Robert F. Mueller concerning the Department of Justice’s use of and their effectiveness. In light of the broad scope of the Act, we are initially seeking written responses to the following questions, and we plan to schedule a hearing in the near future to allow further public discussion of these and other issues relating to the Department of Justice’s activity in investigating terrorists or potential terrorist attacks." Only 28 questions were answered publicly, with 7 answered under separate cover to the Committee. Meanwhile, organisations such as the ACLU, the EFF and EPIC had not stopped opposing the most controversial parts of the Act. Three months after the official response to the Select Committee on the Judiciary, EPIC filed a Freedom of Information (FOI) request seeking the information that was not released by the U.S. Department of Justice. While the Department of Justice released a number of records in response to the request, they didn't release all the material, asserting that certain responsive records were exempt from disclosure. In order to gain access to these records, the ACLU and EPIC brought a civil action against the Department of Justice, and on November 26 U.S. District Judge Ellen Segal Huvelle ordered the Department of Justice to complete its processing of the FOI request by January 15, 2003.

Meanwhile, on July 31, the Protecting the Rights of Individuals Act was introduced into the Senate by Senators Lisa Murkowski (R-AK) and Ron Wyden (D-OR). It was the first of many bills introduced to attempt to change the Patriot Act. Among the changes were ones to FISA provisions, including limits to "sneak and peek" and roving wiretap provisions, the narrowing of the Patriot Act's definition of terrorism and the reinstatement of judicial review when agencies wished to access library and business records. It also would have restored the primary purpose criteria of FISA surveillance to be for foreign intelligence purposes, which had been changed in the Patriot Act to be a "significant purpose." The bill proposed a moratorium on data mining by agencies except under specific instances allowed under law and also would have prevented government access to education records without specific facts showing why those records were required in investigations. Further legislation attempting to curtail the Patriot Act was introduced into the House on September 24 by Dennis Kucinich (D-OH) and Ron Paul (R-TX). That bill was the Benjamin Franklin True Patriot Act, which is an allusion to Benjamin Franklin's famous quote that "those who would give up Essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." Among other things, it proposed a 90-day review period after which 11 sections of the Patriot Act would cease to have effect. It would have reverted the sections on sneak and peek searches, expansion of pen register and trap and trace authorities as well the authority for the FBI to gain access to records and other tangible items under FISA. Also reverted would have been the sections that changed the primary purpose test for foreign intelligence surveillance under FISA to "significant purpose", the mandatory detention of aliens, the use of National Security Letters and the broadened definition of "domestic terrorism." The bill was referred to subcommittees for consideration, where no further action was taken before the end of the 108th Congress. The bill never went further and it was never reintroduced. The bill was publicly supported by the ACLU and the EFF.

Further controversy soon came to a head when, in late January 2003, the founder of the Center for Public Integrity, Charles Lewis, published a leaked draft copy of an Administration proposal titled the Domestic Security Enhancement Act of 2003. The document was quickly dubbed "PATRIOT II" or "Son of PATRIOT" by the media and organisations such as the EFF. The draft, which was circulated to 10 divisions of the Department of Justice, proposed to make further modifications to extend the USA PATRIOT Act and would have made more changes to FISA, including extending the definition of a foreign power in relation to FISA and allowed the use of wiretaps 15 days after Congress authorized the use of military force (currently, the law allows this only after a declaration of war). Further, it would have allowed Federal agencies to acquire foreign government's spoken communications and would have expanded the use of pen registers under FISA to apply to U.S. citizens. It proposed that the FISA Court of Review be allowed to employ a lawyer with security clearance to defend the judgement of the FISC, and would have expanded the use of law enforcement investigative tools under FISA. Further gags were proposed in the draft and, had it been introduced into Congress, it would have prevented the disclosure of terrorism investigation detainee information, "Worst Case Scenario" information and information relating to Capitol buildings. The draft contained measures to further restrict what participants in Grand Jury terrorism hearings could disclose, while other proposed measures would have enhanced investigations into terrorism, including the establishment of a terrorism identification database. Changes were proposed to define terrorism as a crime and the legal framework with which to prosecute such crimes. Further modifications would have also changed immigration and border-security laws. Though the Department of Justice released a statement that it was only a draft, it caused an enormous amount of controversy, with many criticising it for impinging on privacy and civil liberties. In particular, Patrick Leahy complained that "If there is going to be a sequel to the USA PATRIOT Act, the process of writing it should be open and accountable. It should not be shrouded in secrecy, steeped in unilateralism or tinged with partisanship. The early signals from the Administration about its intentions for this bill are ominous, and I hope Justice Department officials will change the way they are handling this."

By now public opinion of the Act appeared to be waning, with a Gallup poll response to the question "Based on what you have read or heard, do you think the Patriot Act goes too far, is about right, or does not go far enough in restricting people's civil liberties in order to fight terrorism?" showing that between 2003 and 2004 nearly a quarter of all Americans felt that the Act went too far, while most felt that it was either just right or did not go far enough. In response, the Department of Justice established a website, www.lifeandliberty.gov, that defended the Act from such organizations as the ACLU (which itself had created a website that campaigned against the Patriot Act called Safe and Free). At the same time, Attorney General Ashcroft toured 16 cities giving speeches to invite only crowds defending the Patriot Act and touting its importance. In the speeches — which among other things made allusions to Bunker Hill, Antietam, the Argonne, Iwo Jima, Normandy and Abraham Lincoln — he defended the Patriot Act's provisions that eliminated the "wall" preventing foreign intelligence agencies from sharing information with domestic law enforcement agencies, roving wiretaps and the expanded capabilities of the U.S. Joint Terrorism Task Force. He also claimed that they had "neutralized alleged terrorist cells in Buffalo, Detroit, Seattle and Portland brought 255 criminal charges. One hundred thirty two individuals have been convicted or pled guilty. All told, more than 3,000 suspected terrorists have been arrested in many countries. Many more have met a different fate." Among those arrested was Sami Amin Al-Arian and seven others who were indicted on 50 counts, including using an Islamic think tank to funnel funds to the group Palestinian Islamic Jihad, which is classed as a terrorist organization by the United States government. Ashcroft cited the arrests to show how the Patriot Act had broken down information sharing barriers between agencies. The speeches themselves were met with support, but in many states Ashcroft attracted protests and a number of critical editorials were written — in one particularly stinging column, The Philadelphia Inquirer wrote that there was "an air of desperation about it." Meanwhile, controversy over the Patriot Act was leading to resistance from many State and local governments. Arcata in California passed an ordinance in February 2003 that barred city employees (including police and librarians) from assisting or cooperating with any federal investigations under the Act that would violate civil liberties (Nullification). Eventually, eight states (Alaska, California, Colorado, Hawaii, Idaho, Maine, Montana and Vermont) and 396 cities and counties (including New York City; Los Angeles; Dallas; Chicago; Eugene, Oregon; Philadelphia; and Cambridge, Massachusetts) passed resolutions condemning the Act for attacking civil liberties. The Bill of Rights Defense Committee helped coordinate many local efforts. These ordinances are largely symbolic, as under the United States Constitution's supremacy clause, federal law overrides state and local laws.