Home > Major Acts of Congress > USA Patriot Act (2001)

Lynne K. Zusman and Neil S. Helfand

History illustrates that in times of war or threat to our country's national security, our government will tend to relax restrictions on its incursions of American civil liberties. If the government exercises too much self-restraint in the surveillance and apprehension of persons presenting a potential threat to the security of the United States, it is believed, our national security will be jeopardized. After the terrorist attacks of September 11, 2001, the U.S. government immediately responded to the perceived need for broader governmental powers in detecting and preventing future terrorist attacks by enacting the USA Patriot Act (USAPA) on October 26, 2001.

Congress introduced the USA Patriot Act with the principal aim of preventing and punishing terrorist acts in the United States and around the world, as well as enhancing law enforcement investigative tools. Given the perceived need for prompt and immediate action in the wake of September 11th, the USA Patriot Act was approved by Congress and the president without the normal procedural review processes of intensive debate and hearings. The USAPA is a lengthy piece of legislation making broad and fundamental changes to the previous law governing the executive branch's powers in law enforcement and intelligence. In enacting the USAPA, Congress and the president was sought to promptly provide the legal tools necessary to deal with the current terrorist threats.

MAIN PROVISIONS OF THE USAPA

The USAPA calls for:

• • The enhancement of domestic security against terrorism.
• • The enhancement of surveillance procedures.
• • The abatement of money laundering and terrorism financing.
• • The protection of the northern border.
• • The removal of obstacles to the investigation of terrorism.
• • The provision of aid and assistance to victims of terrorism, public safety officers, and their families.
• • Increased information sharing between federal, local, and state governments.
• • The strengthening of criminal laws against terrorism.
• • The improvement of intelligence capabilities.

Although the USAPA's intent is to address the security needs of the United States in the wake of the terrorist attacks of September 11th, the act makes special provision for the preservation of the civil rights and civil liberties of all Americans, including Arab Americans, Muslim Americans, and Americans from South Asia, and states that every effort must be taken to preserve their safety. The USAPA also condemns discrimination against Arab and Muslim Americans and demands acts of violence against those individuals be punished to the full extent of the law.

FEDERAL GOVERNMENT SEARCH AND SEIZURE CAPABILITIES

Profound enhancements of the government's power of search and seizure now permit expanded government search capabilities with less judicial oversight. The USAPA also greatly expands the authority to intercept wire, oral, and electronic communications relating to terrorism, and to investigate computer fraud and abuse offenses. In addition to enhancing the abilities of the federal government to engage in domestic surveillance of individuals, the act calls upon citizens to report the suspicious activity of persons and businesses, thereby making the American public the eyes and ears of the government. This last provision is intended to overcome limitations in the government's resources and ability to monitor and detect potential terrorist threats and other crimes.

Under the USAPA the government also benefits from increased powers of record examination. The government can view educational, library, medical and financial records without demonstrating evidence of commission of a crime. The government is also now able to employ its newly acquired surveillance capabilities to review personal internet use.

RELATIONSHIP BETWEEN LAW ENFORCEMENT AND INTELLIGENCE AGENCIES

The USAPA aims to remove hindrances to the detection and prevention of terrorist threats. To that end, in addition to enhancing the federal government's surveillance capabilities, the USAPA makes sweeping changes in the relationship between law enforcement and intelligence agencies, by breaking down traditional barriers to their coordination and cooperation. The USAPA provides for the expanded sharing of information gathered as part of criminal investigations with intelligence agencies and the expanded use of foreign intelligence surveillance tools and information in criminal investigations.

EXECUTIVE BRANCH ABUSES OF POWER

In the mid-1970s, Congressional investigations revealed extensive domestic surveillance and intelligence abuses by the executive branch of the government. Lawmakers had expressed concern about the potential for civil liberties violations by domestic law enforcement and intelligence agencies. For instance, the National Security Act of 1947, which established the Central Intelligence Agency, states that the CIA "shall have no police, subpoena, or law enforcement powers or internal security functions." Although limitations already existed on executive branch abuses in this area, Congress endeavored to create a greater system of checks and balances against such abuses.

As a result of these Congressional investigations, the Foreign Intelligence Surveillance Act of 1978 (FISA) was enacted, requiring court orders for national security electronic surveillance in the United States. The intended aim of FISA was to restrain the power of the federal government, in particular law enforcement agencies of the executive branch, from engaging in unfettered domestic surveillance of individuals.

Prior to the enactment of the USAPA, however, attempts were made to broaden and expand the government's surveillance authority. In May 1995, Senator Joseph Lieberman proposed an amendment to the bill that became the Antiterrorism and Effective Death Penalty Act of 1996 which would have expanded the government's authority to conduct emergency wiretaps in cases of domestic or international terrorism. However, Congress's reluctance to expand wiretap laws any further led to the defeat of Senator Lieberman's amendment.

These previous prohibitions and checks on the executive branch's domestic surveillance and information sharing abuses have been largely undone by the new law created by the USAPA. It permits, for instance, the wider sharing of information from grand juries, domestic law enforcement wiretaps, and criminal investigations, and it also requires federal law enforcement agencies to share this information with intelligence agencies through the Director of Central Intelligence. In addition, law enforcement and intelligence agencies may now share information obtained by means of the government's enhanced surveillance capabilities.

OVERSIGHT OF IMPLEMENTATION OF POWERS GRATED BY THE USAPA

While these enhanced governmental powers of search and seizure serve the purpose of security, history has shown that such powers, absent effective oversight of their use, may lead to profound abuses. Critics of the act voice their deep concerns regarding the likelihood of the government's undue infringement upon civil liberties and rights of privacy.

In recognizing these concerns, Congress incorporated a so-called "sunset provision" that causes certain USAPA provisions to end on December 31, 2005. This is also acknowledgment on Congress' part that certain elements of the USAPA run counter to America's traditional democratic principles, and that although current circumstances warrant such a deviation from traditional norms, such changes should not become a permanent piece of the U.S. government's framework. However, the sunset provision only applies to certain enumerated provisions of the law.

Although the act significantly curtails judicial oversight of law enforcement and intelligence activities, the act does provide for congressional oversight of the executive branch's expanded powers. In particular, the Senate Judiciary Committee is charged with establishing and maintaining an oversight panel responsible for examining how these newly granted powers are exercised.

LONG–TERM RAMIFICATIONS OF USAPA

The justification for expanding the executive branch's authority in the short term is clear. Passed less than two months after the September 11th attacks, the law's intended purpose of preventing and detecting future attacks was the preeminent concern of lawmakers. However, the hasty manner in which the law passed through Congressional lawmaking processes causes opponents to argue that lawmakers gave disproportionate consideration to the law enforcement and intelligence community's viewpoint in drafting the provisions.

It is anticipated that in the future the law will face challenges in the American court system. Although the security concerns of the United States may temporarily override these challenges, in the long-term, it is possible that certain controversial provisions of the law may not withstand judicial challenges.

See also: ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT; DEPARTMENT OF HOMELAND SECURITY ACT; ESPIONAGE ACT (1917) AND SEDITION ACT (1918); FOREIGN INTELLIGENCE SURVEILLANCE ACT; NATIONAL SECURITY ACT OF 1947