The patriotic act was a legislative response by congress to the terrorist attack that was meted on the United States on 11 September 2001. According to proponents of the patriotic act, the terrorist act had long been planned by the perpetrators within the American soil, yet their actions had been camouflaged within the legal activities that happen everyday in the American society. Because of this, the activities of the terrorists went undetected by the law enforcing authorities. Supporting the Patriotic Act, Pat Roberts (2005) indicates that, the provisions in the act were intended to prevent systemic flaws that had prevented the intelligence services from gathering information that could have been used to stop the attacks.
Kettle (2004) argues that the passing of the Patriotic Act into Law in 2001 was meant to equip the country with the laws and tools necessary to “intercept and obstruct terrorism” (p. 96). Having suffered the devastating effects of 9/11, few legislatures were willing to oppose the bill. The bill sailed through the congress and senate easily and was signed into law by the then president G.W Bush on 26 October 2001. Although Roberts (2005) notes that a sunset provision was introduced into the bill before it was signed in to law for purposes of safeguarding civil liberties, it is notable that not all sections of the act have the sunset provision. This then raises the question; does the act give government too much surveillance power over the ordinary citizenry to the point of eroding their rights to privacy?
It is no secret that the Act added surveillance powers to the government than was previously the case. The Act has four notable areas that give government the surveillance mandate on its private citizens. They are: Trap & trace searches, intelligence searches, record searches and sneak & peak searches. There have been reports that the government is using the different searches provided in the US Patriotic Act to collect information which is not related to terrorism (Lichtblau, 2003). Considering that the law was specifically passed to help America protect her citizenry from terrorism, this then raises some concerns that the law could be contradictory to the very idea that motivated it formation.
Amid the most controversial provisions in the Act is section 213 which gives government the permission to search private property without issuing any search warrant or prior notice to the owner. Under the provisions in section 213, the government can further seize private property without telling the owner, and can also invade once virtual space, search, examine, copy documents and even take pictures without the person knowing of the government’s actions (Kettle, 2004). Though the act still acknowledges that a suspect needs to be notified when a search is being conducted on her/him, it states that delaying notification is legal especially if notifying a suspect would jeopardize the investigation.
According to Roberts (2005), the delay can be as long as the investigating authorities seem necessary, or it can be a permanent delay. To obtain a search warrant, all an officer needs to do is apply for the same from a Federal Intelligence Surveillance Act (FISA) Court, and the agent does not even need a “probable cause of criminal conduct” (Roberts, 2005) for the court to grant him the search warrant. This raises the concern that the Act could be used to deny the citizenry their basic rights to privacy.
Section 215 of the patriotic act is also controversial. The provisions therein makes it mandatory for all people or institutions (bookstores, libraries, doctors, internet service providers and others) to submit records regarding their customers or clients to the federal government. The scope of this provision is so wide that the investigators can access an entire database of a suspect company in search of evidence. There is also a gag order in this provision that forbids organizations that have been forced to reveal specific information about someone against revealing information about the search to the person.
The concern about provisions in this section relates to the level of secrecy that the government attaches to such investigations. One cannot help wonder, why the investigations are shrouded in secrecy. More to this, does the patriotic act against established confidence standard when it forces professionals like doctors to break their oaths by revealing information about their clients to the government?
Sections 214, 215 and 216 deals with trap & trace searches. These involve collecting information at both the point of origin and the destination during communication. The searches are conducted on different communication platforms, which include phones and the internet. Warrants to conduct trap & trace searches are issued by FISA judges, but it has been noted that their use extends beyond terrorism-related activities (Lichtblau, 2003). According to Dinh (2004) Section 215 is used to gather intelligence on a person who is not a United States citizen and therefore cannot be used on records of the average Americans
Section 218 in the patriotic act is also controversial because it allows the government to spy on its citizens for intelligence gathering purposes. Under the provision, the government can choose to conduct searches or tap a person’s communication lines even where a probable cause is not provided (Kettle, 2004).Though this section has been accused as a contravention to the 4th amendments, the FISA court of review in 2002 ruled that the section was consistent with the American constitution (Dinh, 2004).
When the Patriotic Act was introduced to the American people’s right after 9/11, many people supported it with the belief that it would be used to fight terrorism. However, it seemed that the Act is not a tool to for use in the anti-terrorism fight, but its use is being extended to investigation of ordinary crimes. In the defense of the Act, Roberts (2005) argues that contrary to what many believe, the provisions in the Act were not a rash response to the horrific terrorism acts of 9/11; rather, the same had been deliberated in the country for years. This is collaborated by Dinh (2004) who states that not only were there deliberations that lasted for six weeks, but drafters of the Act had the chance to hear and consider advice from different stakeholders prior to drafting what was supposed to be America’s security blueprint. As such, Roberts argues that the Act carefully balances the privacy rights of the citizenry with the national security needs.
Away from verbal support, figures and statistic issued by the Department of Justice by 2004 showed that the government had intercepted more than 100 cells from terrorists while incapacitating more than 3,000 al-Qaida operatives through out the world. 305 people linked to terrorism activities have also been charged with criminal offences, while assets worth $133 million have been linked to terrorists and frozen (Dinh, 2004). This therefore raises the questions, could the successes be possible without the provisions of the Patriotic Act? Well, my opinion regarding this is that the society cannot “have its cake and eat it”. Though not appealing, some of the compromises that people have to make in terms of allowing the government room for surveillance could very well be the opportunity that the government needs in order to prevent future terrorist attacks.
As Roberts (2005) put it, the very privacy of information that people are afraid of revealing to the government is shared to third parties on a daily basis as people buy groceries using their credit cards, apply for mortgages or even open email addresses. As such, availing the same information to the government especially if it means better security should not be too worrying to the ordinary Americans who have nothing to hide from the law enforcers.
The Patriotic Act may have been proposed as counter-terrorism legislation, but its continued use in other criminal investigations does not only make America a safe place, but pro-active rather than reactive country. It has also allowed the country’s intelligence systems to be at foot with changing technology, thus reducing the chances that the country will be caught unawares by terrorists as was the case in 9/11. Since the law is not written in stone however, it is only wise that the provisions therein be discussed and if any is found to contravene individual liberties than would be warranted by the need to secure the country, then the necessary amendments should be made.
Dinh, V. D. (2004). How the USA Patriotic Act defends democracy. A white paper: The Foundation for the Defense of Democracies.pp. 1-6.
Kettle, D. (2004). System under stress Homeland security and American politics. Washington DC: CQ press.
Lichtblau, E. (2003). US use terror law to pursue crimes from drugs to swindling. The New York Times. 1.1
Roberts, P. (2005). USA Patriotic Act: Hearing before the Select Committee on Intelligence of the United States Senate. One Hundred Ninth Congress: First Session. Web.