The Usa Patriot Act: One Year Later
Part II
by C. William Michaels*
t r u t h o u t | Report

Thursday, 14 November, 2002

The first part of this two-part article on the occasion of the first anniversary of the USA PATRIOT Act, looked at the background of the statute and reviewed some of its more significant sections among its very extensive ten Titles. This second part will review some of the trends occurring as a result of the USA PATRIOT Act and also identify some developments which will require attention in the foreseeable future.

Some Resulting Trends

There are any number of new trends and developments to be identified as coming directly from the PATRIOT Act itself. Of course, we cannot ignore numerous other developments, such as the Office of Homeland Security, dramatic new aviation security measures, several ominous national trends, and the impending war with Iraq, but unfortunately they are outside the present discussion as not being directly related to the PATRIOT Act. As to the Act, least 10 such trends could be noted, and they all deserve increased attention.

1. Reduced judicial review. The entire PATRIOT Act is designed for increased surveillance, information gathering, and investigation, of terrorism with a minimum of judicial review. Investigations under the Foreign Intelligence Surveillance Act (FISA) can be expanded and notification of sneak and peek warrants can be delayed. The FISA court which reviews and grants these warrant requests has refused perhaps 1 in its entire history, granting 12,178 warrants of 12,179 requests.

Under the PATRIOT Act, mostly under Title II, investigators can obtain information ranging from consumer reports, certain phone data, certain details from Internet service providers, educational records, and banking transactions, all without a court order. All that is required is a certification by a federal investigator that the information is necessary or required for a particular investigation, which does not even reach the standard of probable cause that is required with ordinary search and seizure warrants. There is no opportunity for judicial review of these information gathering activities since in general the information obtained is obtained in secret and the Act provides that the person or entity providing the information is immune from civil liability.

The Act's establishment of single jurisdiction search warrants and national service of search warrants effectively means that federal investigators only have to stop by to one federal district court to obtain a search warrant for a particular investigation. Investigators will not be required to further justify their information request and continue to meet search warrant standards in any other federal court even if the investigation goes into other jurisdictions. This is "one stop shopping" for federal search warrants and essentially takes the federal courts out of the loop.

The information sharing which will go on--and in fact is mandated--chiefly by Titles II and IX are conducted by and large without any judicial review. In those limited instances where judicial review might be involved, such review is limited to specific challenges and those challenges can be delayed at the request of the government.

The very extreme and detailed "special measures" which under Title III can be imposed by federal investigators upon domestic banks and other financial institutions are completely unprecedented in the history of federal banking regulation and represent a total rewrite of banking law. Yet these "special measures" can be submitted to banks by investigators once various required "certifications" are made by the Treasury Department, without any condition for a court order or court review. In fact, the Act does not even provide for a court review or challenge to a "special measures" order once imposed--and any given "special measures" order can last for 120 days.

There is no provision in the Act for court review of the information which federal agencies can require from banks or financial institutions under the 120-hour rule established by the Act. In fact, no court would be able to review and properly pass upon the propriety of the information required, in that span of time.

Title IV of the Act identifies three types of terrorist organizations: "Section 219" designations of terrorist groups borrowed from existing immigration law, terrorist groups identified by the government under a similar procedure but with fewer requirements and no express judicial review, and a wide-ranging category of any group of two persons or more "whether organized or not" which engages in any of the broadly-defined list of "terrorist activities." Yet only one of them (adopting the "Section 219" designations from previous immigration law) allows for judicial review of a terrorist group designation. The second type of terrorist group, the PATRIOT Act describes a procedure similar to a "Section 219" terrorist group identification procedure, but any express reference to the same type of judicial review is curiously omitted in the statute's description. The third type of terrorist organization, any group organized or not which engages in terrorist activity, again contains no provision is for judicial review of that designation.

The Act therefore gives federal investigators or agencies tremendously wide latitude in designating terrorist groups--with all that would follow, once the entire range of the investigative and surveillance authorities also granted by the PATRIOT Act are brought into play against any group so identified. It must be noted that the definitions of "terrorism" and "domestic terrorism" and "foreign intelligence" do not exclude the potential involvement of American citizens, so PATRIOT Act investigation, surveillance, and prosecution, authorities are not restricted to aliens.

The mandatory detention of aliens under Title IV allows for habeas corpus review (similar, in fact, to other parallel provisions in existing immigration law although they were not as extreme). Yet habeas corpus review has not been utilized with great vigor by federal courts. An appeal of denial of habeas corpus is also provided, but such an appeal is extremely unlikely to succeed. Aside from habeas corpus, the only review allowed by an alien in indefinite detention is a request for administrative review of the detention, every six months. These provisions make a mockery of our system of judicial oversight of executive activity.

There is limited judicial oversight of many other Act provisions such as forfeiture provisions, long arm jurisdiction, and reduced or eliminated statutes of limitations. While these provisions may be seen as giving federal courts more power, in actuality the power is being given to federal prosecutors and investigators, who continue to drive federal criminal investigations and prosecutions.

2. Limited Congressional review or oversight. There are provisions scattered throughout the PATRIOT Act requiring various federal agencies or departments (chiefly State, Treasury, and Justice) to report to Congress on their activities or on the results of particular studies. Among them are reports to be made to Congress by the Treasury Department about "special measures" imposed on banks under Title III and by the Justice Department on the detention of aliens under Title IV.

Yet, little is said in the Act about Congressional power to take any action as a result of the reports. Also, little is said about the status of these various reports themselves, whether they are secret, how they can be distributed, if Congress has the power to restrict agency activity if Congress becomes concerned about information in them,, and so on. Congress itself, by enacting the PATRIOT Act, has withdrawn any authority it might have to oversee the results of the agency activity put into motion by its extreme provisions.

A prime example is the report to Congress on detention of aliens. The report only needs to include how many were detained at the start of the time period covered by the report, how many have been released, how many have sought judicial review of their detention, and how many are still detained. Notably absent from the requirements of this report are the names of the detainees, what each detainee may be charged with, the circumstances of the detention, the locality of the detention, and whether criminal prosecution is underway. Again, Congress has abdicated its opportunity to exercise detailed oversight of such extreme provisions.

There has been some movement in the direction of Congressional oversight. For example, in June of 2002, Rep. F. James Sessenbrenner, Jr. and Rep. John Conyers, Jr. of the House Judiciary Committee sent an extensive letter to Attorney General John Ashcroft raising 50 rather pointed questions (many of those questions in several parts) about Justice Department activity related to the PATRIOT Act, especially Titles II and IV. The tone of this letter and its criticism of potential overbroad Executive Department conduct was commendable. But on the whole, Congressional action of this kind has been lackting. Much more is needed if Congress intends to exercise some control and oversight of the forces it set in motion with this Act.

3. "Fellow PATRIOT Acts." Congress surely is well aware that legislatures in the 50 States follow Congressional lead in identifying and acting on legislative priorities, from handguns to drunk driving. It has been no different in anti terrorism legislation. Within months after the PATRIOT Act was enacted by Congress and signed into law, other State legislatures acted on the mood of the country and the concern about terrorism investigation and considered if not passed similar State level legislation.

There are examples ranging from Maryland to California. In Maryland, new legislation rewrote State search and seizure guidelines, imposed new requirements on security for chemical plants and facilities, enacted new security measures for State office buildings (either by legislative act or Governor's order), and gave sweeping new powers to the Governor to declare special emergencies with subsequent powers for agencies dealing with health, transportation, policing, and security.

These "fellow PATRIOT Acts" pose problems no less severe than the Federal version. While perhaps not as extensive as the original, these other statutes are likely not to be interpreted with the same precision as might be imposed by federal courts, give new powers to certain State agencies ordinarily not accustomed to wielding them, and may not contain sunset provisions. Unfortunately, these State statutes and their effects will be with us for some time.

4. The "enemy combatant". A disturbing development among federal investigators is the announcement that a particular person seized and detained for suspected terrorist involvement or charged with a terrorism offense is a "enemy combatant." Even more alarming is the fact that this label has been used against a United States citizen. Investigators have made this announcement with arrests like Jose Padilla the so-called "dirty bomber" and his supposed accomplice, Adham Hassoun. Both were arrested in May and June, 2002 in Florida, and have been held in a Navy brig in North Carolina. Their eventual fate is still unknown. The government also has argued this theory in a brief filed in the United States Court of Appeals for the Fourth Circuit.

According to this approach, which has followed the wide investigative and detention authorities either established or expanded by the PATRIOT Act, an "enemy combatant" is not entitled to the same due process protections as any other detainee or arrestee. Such a person does not have the same rights to challenge their detention or to seek court review. Such a person can be held until the "conflict" is "concluded." If this is to mean the end of the "war on terrorism," then the time frame could be years. Yet this "enemy combatant" designation appears nowhere in the PATRIOT Act or in general federal criminal law. How this very alarming approach will be met by the courts is one of the major unfolding issues in the post-PATRIOT Act world.

5. Detention of aliens and detention conditions/the new American Gulag. The detention of aliens, now tremendously expanded by PATRIOT Act Title IV, and the conditions of their detention, is one trend that fortunately continues to receive media and activist group attention. Many of the aliens seized and detained in roundups occurring immediately after September 11 and especially after the PATRIOT Act was signed, and which continue to occur, have been marked by serious deprivations of basic constitutional rights under the Fifth and Sixth Amendments, as well as rights and practices traditionally available to anyone in pretrial detention. Those include the rights to see family, to communicate with others, to meet with counsel, and to know of the charges being brought.

The result, besides wholesale violations of the Constitution, protocols of detention, and human decency, is the potential development of a new American "gulag"--facilities where aliens or others seized under these expanded authorities will be placed and which can be relied upon by investigators to provide the proper conditions designed to elicit appropriate information by the arrestee useful in the investigation, not to mention confessions. Such a development if it occurs will be another black page on an already too-long history of extreme governmental treatment of suspect groups.

6. New "terrorist" group identifications globally/"their" terrorists become "our" terrorists. Part of the new globalization of the war on terrorism is activity by the United States seeking assistance or cooperation by other countries in investigating and tracking terrorist groups of immediate interest to the United States and who are suspected of involvement in the September 11 attacks, chiefly Al Queda. Of course, this interest also includes other terrorist groups so "designated" by United States authorities, which is already a tremendously long list.

In a show of further United States cooperation with these other nations, American authorities are also designating other groups in other countries which are deemed by these countries to be "terrorist" groups. In December, 2001 and on later dates, federal agencies announced that groups such as the Basque separatist movement in Spain (the ETA) and the Sendero Luminiso in Peru had been officially designated as "terrorist" groups for purposes of United States policy, notably invoking the considerable powers of surveillance, investigation, and prosecution granted by the PATRIOT Act.

Such groups clearly had nothing to do with September 11 although they have resorted to violence in their particular campaigns, but their official designation as a "terrorist" group has more to do with the United States recognizing another nation's "terrorists" in order to obtain that nation's assistance in acting against "terrorists" of interest to this country. That will soon develop into another disturbing trend of rebel groups of one sort or another in various countries being designated by the United States as "terrorists"--again, with all that entails in terms of surveillance and investigation. It is one way in which nations interested in preserving the status quo against the challenge of a dissident group can obtain the involvement and support of the United States and eliminating that group. How this plays out remains to be seen.

7. Using FISA material for criminal prosecution. The main reason why surveillance warrants under the Foreign Intelligence Surveillance Act are not subject to quite the same restrictions and requirements as search and seizure orders in other investigations is that FISA-type investigations are not designed to lead to direct criminal prosecution, but are expected to produce information to allow investigators to track the activities of certain suspect foreign nationals under some sort of structure and guidelines. Yet after the PATRIOT Act, federal authorities are becoming more interested in using FISA investigations as the basis of a criminal investigation.

A recently-announced decision by the FISA court that was issued in May, 2002 (and was made public by the Senate Judiciary Committee--the first instance of a public FISA court opinion), criticized this approach. The FISA court in that opinion made it plain that it would be the arbiter of the FISA statute and how information obtained through FISA may be used. But the Justice Department has taken issue with that opinion. It has already taken the opinion up on appeal.

Using FISA information as the basis for standard criminal prosecution would go against the intent of FISA and would be, in effect, an end-run around the Fourth Amendment. This will be another trend to watch.

8. New information and surveillance technologies. As PATRIOT Act emphasis on surveillance and intelligence continues, so also will arise a whole new or expanded corporate subculture in surveillance technologies and methods. One example of this was quite evident in September 18 and 19, 2002, when a Homeland Security Technology Expo and Conference was held in Washington, D.C.

This is only the beginning. A new generation of security and special electronic and surveillance methodology is about to unfold, some of which may have already been on the drawing board, but now given a serious boost by the studies, mandates, reports, grants, new offices, and special funding under the PATRIOT Act.

9. New corporate attitude as to employee surveillance. Congress may be well aware that the private sector/corporate world takes its lead from Congressional and White House interest and action on particular issues. The PATRIOT Act and the new emphasis on security is surely no exception.

Corporations, businesses, and merchants are now doing more than ever to track the movements of employees and customers, conduct background checks for new hires, review resumes, refuse hire to almost anyone with a criminal background even if it has nothing to do with the job involved, and track daily employee activities. Some computer surveillance programs in use in the corporate world allow a system administrator of a LAN to track keyboard keystrokes or even screen activity on any given computer in the system, down to whether the employee is conducting unauthorized shopping on the Internet (and this can even include credit card numbers entered) to slacking off by playing solitaire.

Some of these surveillance programs were already in use well before the PATRIOT Act. But the Act and the new atmosphere of security have given them a new legitimacy and have encouraged corporations either to expand or to institute similar surveillance systems. Keep in mind that if anything of any real import were discovered through these surveillance processes, its use in a criminal investigation is not restricted by the Fourth Amendment.

10. Reach of State and local authorities. The new PATRIOT Act provisions for information sharing, grants and funding, and cross agency training and cooperation, as well as the "fellow PATRIOT Acts" passed by State legislatures has given State and local governmental law enforcement units a new emphasis and a new influence.

Now, the county Sheriff or local municipal law enforcement unit may be involved in a terrorism investigation, can search for "foreign intelligence" and can watch out for "domestic terrorism." The professionalism of these organizations can sometimes be called into question, not to mention their lack of experience in these types of investigations. While that does not at all mean that it was a good thing for federal agencies to be given all of the new authorities provided by the PATRIOT Act, the expansion of these authorities to the State and local law enforcement levels is a disturbing "vertical expansion" of already disturbing police power.

Increased funding for everything. Not so much a trend as an observation, is the fact that the PATRIOT Act is part of an entire new federal and security apparatus due to receive, since September 11, an entire new wave of federal funding. It used to be that if a corporation was involved in drug enforcement, treatment, or surveillance, it was a prime recipient for federal contracts. Now the operative word is "terrorism" and corporations learn quickly. All sorts of new systems and mandates, contracts and grants, training and procedures, will be the subject for contracts at the federal, State and local levels. There already is enough funding in the PATRIOT Act to amount to $2.6 billion, not including "authorizations" without a specific sum. And that does not include funding for bioterrorism, which was the subject of a recently-enacted separate statute by Congress also recently signed by President Bush, aviation security (through the Aviation and Transportation Security Act which among many other things established the enormously large Transportation Security Administration), or increased military spending. The funding process is taking a new direction. It will be years before its effect is fully felt.

Watching for the Future

These 10 trends are enough for anyone interested in keeping abreast of immediate PATRIOT Act developments. But there are still four particular long-term matters to watch for in the foreseeable future.

1. "Domestic terrorism". The PATRIOT Act in Title VIII creates a new crime of "domestic terrorism." This is an act which is 1) a federal or State crime, 2) is dangerous or harmful to human life, 3) is designed to effect policy by coercion or intimidation, and 4) occurs within the United States. The intent of this new crime obviously is to "federalize" certain criminal acts and call them "terrorism" to bring them under federal surveillance, prosecution, and enhanced sentencing under the PATRIOT Act.

Civil liberties groups have raised concerns that "domestic terrorism" could include legitimate political protest, although the requirement that the action be dangerous or harmful to human life would place most political protest such as marches, demonstrations, and other activity, even if illegal, outside the definition. Also, to date, even a year since the PATRIOT Act no one has been prosecuted under the crime of "domestic terrorism."

Still, this is a development worth watching. How and in what way a prosecution for "domestic terrorism" would proceed clearly would show how the federal government will utilize that statute. Also, in a parallel way, the PATRIOT Act makes it clear that providing material support for, being in a conspiracy with, and attempting to commit, a terrorist act is also "terrorism." Prosecution of legitimate action such as political protest in support of a particular group or action, could be seen as terrorism under those definitions even if it is not prosecuted under the "domestic terrorism" crime. Both developments need to be watched.

2. Judicial review and oversight. Much has been made, even in this two-part series, of the lack of judicial oversight of government action in the PATRIOT Act. But it is a double-edged sword, for oversight and review of government action by the courts has not universally meant judicial restriction of that action. For example, the Alien and Sedition Acts enacted during World War I, the Espionage Act enacted subsequently, the detention of Japanese Americans during World War II, the actions of the House UnAmerican Activities Committee, and the Foreign Intelligence Surveillance Act, all were upheld by federal courts including the Supreme Court. So, if there is going to be judicial review and oversight, it needs to be materially different than historic judicial deference to Congressional conduct. It needs to be much more concerned with the Constitution than with Congress, with destruction of civil liberties than the detention of terrorists. If the courts are involved in the long view, they need to recognize that the horizon may very well be a cliff with a 300 foot drop.

So far there has been no overall challenge to the constitutionality of the PATRIOT Act or its major provisions. Some federal courts have taken up issues relating to legal authorities granted by the PATRIOT Act, with interesting results. XXXXX [add list].

For certain, the Supreme Court has yet to reach any major PATRIOT Act issue. There appear to be no such cases on the Court's current docket. But there is time. Even the more extreme provisions are not due to sunset until 2005, and the rest of the PATRIOT Act is permanent. Federal courts will be dealing with this statute indefinitely. Federal courts not only need to seriously take up the question of judicial oversight but also take it up in dramatic and effective ways for the protection of all Americans and all within her shores.

3. PATRIOT Act backlash. Perhaps some impetus for the strength that the judiciary needs to apply to its review of the PATRIOT Act and governmental conduct under its provisions, will come from the recent resolutions passed by several municipalities rejecting or criticizing the Act. Such resolutions were passed by towns in Massachusetts, California, and Colorado.

While these resolutions have no ultimate legal authority--the PATRIOT Act as a federal statute would override any such local government resolutions--their effect is to demonstrate to the federal government and to the citizenry nationwide that not all Americans will be as complacent as Congress and the White House might expect when it comes to the PATRIOT Act. If any trend identified in this series needs to continue, it is this. More municipalities and other jurisdictions small and large need to take notice of the issues and trends surrounding the PATRIOT Act and make it plain that they will not lie down and let the Constitution be sacrificed to the ever-expanding "war on terrorism."

4. Sunset provisions. Finally and perhaps most important, the American public cannot be distracted and complacent when it comes to those portions of the PATRIOT Act which are due to sunset. Certain sections in Title II are due automatically to sunset on December 31, 2005. The entire Title III is due to sunset on or before October 1, 2005 but only if Congress passes a joint resolution so declaring.

It stands to reason that if the American public remains complacent and if Congress continues to be distracted, pressure will be brought to bear--chiefly by federal investigative and intelligence agencies which have become far too accustomed their expanded surveillance, investigative, and prosecutorial powers--to repeal the sunset provisions for Title II and not to pass the joint resolution to inactivate Title III. That should not be allowed to happen, and only a vigilant American public can prevent it.

Of course, the Act does not explain what will happen to all of the information gathered, new federal offices established, and other activities initiated, under Titles II and III if these Titles do sunset. It is extremely doubtful that those offices will be disbanded or the information discarded. This in itself will be another matter to watch and another question to ask, as 2005 comes around.

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C. William Michaels is an attorney and writer in Baltimore, Maryland. His just released book, No Greater Threat: America After September 11 and the Rise of a National Security State (Algora Publishing NYC, 2002) contains a review and analysis of the entire USA PATRIOT Act. The book is available from Barnes & Noble and Amazon.com. For more about the book and the author, go to "www.nogreaterthreat.com"

*In preparing these articles, Mr. Michaels gratefully acknowledges the assistance and collaboration of truthout.org columnist Jennifer Van Bergen (J.D. Cardozo School of Law; Faculty, New School University in New York).

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Also see :

The Usa Patriot Act: One Year Later -- Part I | by C. William Michaels and Jennifer Van Bergen

The Usa Patriot Act: One Year Later -- Part II | by C. William Michaels

Free Speech & G.W. Bush | by Jennifer Van Bergen

Repeal the USA Patriot Act | by Jennifer Van Bergen