American Security: Triumphs And Downfalls Of The Patriot Act

Spring 2012
Final Research Essays

Article 10 of 16

How is it that American citizens have supported, and even allowed the passing of, legislature that ignores the fourth amendment to the U.S. Constitution? The Patriot Act, originally passed in October 2001, is one of the most controversial topics regarding American citizens’ privacy and security. The Patriot Act has elevated the investigatory power of our nation’s government to a record high. While this legislation directly contradicts the fourth amendment, it has saved many lives. The far-reaching powers of the Patriot Act have actually allowed our country to apprehend many criminals who otherwise would likely have gotten away with their crimes. The issue at hand is how much of our personal privacy are we, as American citizens, willing to leverage in return for security, as well as a much greater question: how much personal freedom is actually worth leveraging for security? In the words of Benjamin Franklin, one of the founding fathers of our nation, "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety" (Moncur). While the Patriot Act has helped prevent disastrous events in our nation, it is far too invasive and should be revised to maintain privacy and freedom.

The Patriot Act was passed shortly after the catastrophic events of September 11th, 2001 to combat terrorism in the United States of America. This legislation has caused extreme dissent because it grants government agencies more investigatory power than ever before. Many of the sections within the Patriot Act have roused indignation among American citizens. For example, the Patriot Act allows for what it calls “sneak and peek” warrants, which essentially grant the ability for a government agency to search a person’s property without any warrant or notification of the search (Abramson and Godoy). Additionally, the practice of sharing any and all evidence or information between government agencies (referred to as information sharing) has become legal (Abramson and Godoy). Also, wiretapping no longer links to one device, so government agencies can now legally tap every single form of communication that a person of interest is using (Abramson and Godoy). Perhaps the most shocking facet of the Patriot Act is that it permits indefinite detention, even if the offender is not a terrorist (How the Anti-Terrorism Bill Permits Indefinite Detention of Immigrants). By the Patriot Act, any immigrant or non-citizen is legally subject to indefinite detention in America without an attorney. With all of these capabilities combined, our nation has begun to use what is known as data mining, the mass collection of information about American citizens, to determine who is a threat. The Patriot Act is clearly a controversial issue that affects a substantial amount of people, including non-Americans.

The discourse of this paper focuses largely on four components of the Patriot Act. The benefits, as well as the more abundant threats and detriments of data mining, are thoroughly discussed. Following this, the pros and cons of a related practice known as information sharing are discussed. Next, the paper delves into the subject of roving wiretaps, shortly followed by a deliberation on the topic of infinite detention of non U.S. citizens. In each case, advantages are carefully weighed against disadvantages while the increase in security is compared to the decrease in personal privacy and freedom to determine whether or not each component is a successful and worthwhile addition to American legislation. Although the exceptionally simple process the government goes through to acquire citizens’ personal information is not explicitly described in this paper, much explanation has been done elsewhere. If interested in how the government is so easily gleaning all of this information please see the cited sources by any of the following authors: Gina Stevens, Charles Doyle, Daniel J. Solove, Fred H. Cate, and Adam Martin.

The practice of data mining is one of the most disputed abilities the Patriot Act entails, likely due to it being a blatant invasion of privacy and apparently unconstitutional. Data mining is a process in which massive amounts of information on American citizens are collected by looking at internet history to determine personal information such as political affiliation and sexual orientation among other personal factoids as well as tracking the location of citizens. Surprisingly, the U.S. government does not consider seizing this information to be a search or seizure, so this practice is unchallengeable by the fourth amendment.  By doing this, the government manages to collect enough information on each citizen to construct personal profiles, which they use to compare to personal profiles of past terrorists to predict acts of terrorism in the future. All of this data is analyzed only by computer programs, rather than human eyes, which may seem to lessen the invasion of privacy. However, privacy is defined as “the state of being free from intrusion or disturbance in ones private life or affairs”, which is the opposite of what is occurring as a result of data mining (dictionary.com). If obtaining as much information as possible on citizens in order to establish explicatory profiles is not a disturbance in one’s private life, then it is impossible to determine what it is.

Data mining even stands in direct opposition to the first amendment to the United States Constitution. To elaborate, every time my mother (a five-foot tall, fifty-year-old Indian woman with a master’s degree in statistics and no criminal record) checks in for a flight she is subjected to extra security. This means that my mother’s credentials dub her to be a potential terrorist. This is a wild extrapolation because nothing about my mother aligns her with past terrorists, except maybe her religious affiliation. If this categorical information is what causes my mother to be identified as a possible threat, then the process of as data mining, as well as the Patriot Act, is unconstitutional and stands in opposition to the first amendment of the United States Constitution. The first amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” (Bill of Rights), but obstructing a passenger on an airplane based on their religious affiliation is clearly denouncing the practice of their religion. These procedures are quite shocking and greatly oppose how the United States government’s investigative powers were designed to function.

Although the Patriot Act is extreme legislation, it has helped our country in some instances. Information sharing, enabled by the Patriot Act, has helped prevent terrorism in our nation but is far too invasive to be maintained as a practice. Information sharing is the process of government agencies freely sharing all information and evidence between them. Specifically, sections 203(b) and 203(d) of the Patriot Act effectively integrate this information (Abramson and Godoy).  In the past, government agencies kept the information they acquired separate from other agencies, which hindered the pace at which terrorists and criminals were apprehended. For instance, in 2003 a man named Lyman Faris was charged for planning the destruction of a New York City bridge. The investigation involved more than a dozen organizations working together jointly to detain Faris. As an FBI agent (who risks his life everyday to protect our country and its citizens) said, "The Faris case would not have happened without sharing information. We would never have even had the lead" (Fact Sheet). Without information sharing, Faris may never have been incarcerated, in which case many people would have died in the destrcution of the bridge. In fact, three eminent sections of our government all promulgated that this separation of information is part of what led to the events of September 11th, 2001; “The Justice Department has frequently blamed the wall for the failure to find and detain Sept. 11 hijackers Nawaf al-Hazmi and Khalid al-Midhar prior to the attacks. CIA agents had information that both men were in the United States and were suspected terrorists, but the FBI says it did not receive that information until August 2001” (Abramson and Godoy). It is true that the Patriot Act allows for our government to identify terroristic threats much faster than if information remained separate; however, with these benefits come great perils.

While information sharing can aid national security, unrestricted information sharing leads to the formation of enormous databases of information on non-criminal citizens and is unnecessary as well as largely unconstitutional. It turns out that the lack of information sharing in past instances was not due to legal issues, but rather out of hesitance. As National Public Radio puts it “investigators were always allowed to share grand jury information, which is specifically authorized by this section” (Abramson and Godoy). Since information sharing was essentially always legal, all the Patriot Act has done is promote a needlessly large amount of information sharing. Rather than considering why certain information should be relayed to other government agencies, all information is now routinely circulated between government agencies. Since criminal and innocent Americans are equal in the eyes of the Patriot Act, vast amounts of personal information about innocent American citizens are being accrued in multiple places across the nation for no reason.

Meanwhile, the fourth amendment to the Constitution is supposed to be the “keystone in the protection of the citizen against government power. It ensures that the government cannot gather information about you without proper oversight and limitation” (Solove 93). Although the fourth amendment has been in place since the signing of the Bill of Rights, in this case it offers no protection. The United States government does not consider any aspects of the Patriot Act to be unconstitutional, nor does it think they are gathering information without ‘proper oversight and limitation’. In hindsight, extensive amounts of information about innocent American citizens are being collected in a limitless manner even though the fourth amendment is supposed to protect against such absurdities. As previously defined, privacy is a form of freedom, a form of freedom that is being taken away from all American citizens by sections 203(b) and 203(d) of the Patriot Act.

Roving wiretaps are another component of the Patriot Act that, although radical, have in certain instances helped to improve safety in our nation. For instance, the arrest of a man by the name of Najibullah Zazi was only possible because of roving wiretaps. The Washington Examiner, an established periodical, noted that Najibullah Zazi was convicted of conspiracy and intent to use weapons of mass destruction after “Nine pages of handwritten formulas for homemade explosives, fuses and detonators were later found on his laptop, e-mailed from an Internet account originating in Pakistan, court documents charge” (Patriot Act Helped Foil New York Terror Plot). Before his arrest, the FBI intercepted a call from a comrade of Zazi’s who plainly apprised him that he was being tracked. In the past, separate court orders were needed for each device that was to be tapped; the FBI would have needed a separate warrant for Zazi’s laptop and cell phone. So, if Zazi was to purchase a new phone to avoid surveillance, the FBI would again need another court order to tap Zazi’s new phone. As The Washington Examiner concludes, “This is exactly the kind of foreign communications the Patriot Act was designed to intercept” (Patriot Act Helped Foil New York Terror Plot). Nowadays, Section 206 of the Patriot Act allows government agencies to get court orders on specific people rather than specific devices (Abramson, Larry, and Maria Godoy). If the Patriot Act was not enacted then Najibullah Zazi as well as other terrorists would be much more likely to successfully inflict damage across the country.

However, security and privacy are quite clearly inversely proportional. Roving wiretaps severely decrease American citizens’ privacy and security in an unlawful and invasive manner. Since the Patriot Act allows roving wiretaps to be enacted with respect to any person who is a suspected spy or terrorist, it is easily possible for any one who comes in contact with these suspects to be observed and recorded. Whether the contact is brief or extended, intentional or accidental, any information obtained from the wiretaps (regarding the suspect or anyone else involved) is legally obtained as evidence fit for a court of law. As National Public Radio points out, “the language of the Patriot Act could lead to privacy violations of anyone who comes into casual contact with the subject” (Abramson and Godoy). With the unlimited scope of roving wiretaps, all Americans inadvertently subject themselves to being observed by the government. What this entails is a multitude of people’s information being collected through roving wiretaps, even if they are not suspected terrorists or spies.

This is a drastic measure, especially considering information sharing as well as data mining are both already thoroughly collecting such information from American citizens. Since there are no criteria to be considered a terrorist, the government uses the information they obtain to declare more people as threatening so that they can issue more wiretaps and further this endless, cyclical process. What does the government need all of this private information for, and how can they even claim they have the right to obtain all of this data? As Daniel J. Solove, the John Marshall Harlan Research Professor of Law at the George Washington University, expresses in his book, “There’s nothing to stop law enforcement officials from acting upon mere hunches, or even wild guesses, or just gathering information because they don’t like a person and want to catch him in a bad act” (Solove 96). The Patriot Act is promoting the persecution of innocent Americans. Ultimately, roving wiretaps defy the U.S. constitution and help the government amass huge amounts of private information on innocent American citizens.

With the abilities bestowed by the Patriot Act (a combination of information sharing, roving wiretaps, and preliminary searches without a warrant), U.S. Immigrations and Customs Enforcement, known as ICE, has been able to launch an extensive investigation into the financial systems of organized criminals. This investigation has been effective and helpful, but is more detrimental to Americans’ freedom than it is conducive to our safety. ICE’s nationwide efforts to avert dangerous immigrants from entering our country with illegal funds and other contraband has been quite efficacious, resulting in “the arrest of more than 155 individuals and 142 criminal indictments, over $25 million in illicit profits seized, and several unlicensed money transmittal businesses shut down” (DHS:Fact Sheet). Before the Patriot Act, ICE was not able to search people and transactions exiting and entering the country this thoroughly. Even if they were allowed to search thoroughly, information may have not been comprehensive enough to reach a conclusion. The aforementioned information sharing permitted by the Patriot Act allows for correct inferences to be made leading to lawful arrests. None of these arrests would have been made without the Patriot Act.

While this feature of the Patriot Act helps keep our country safe it is, again, at the price of freedom. Section 412 of the Patriot Act allows immigrants and other non-citizens to be detained infinitely, which is not only inhumane, but also completely irrational (How the Anti-Terrorism Bill Permits Indefinite Detention of Immigrants). Although section 412 does require that immigrants be charged within seven days, immigrants who are found responsible for an immigration violation but no terroristic violation face unrestricted detention if their home country refuses to accept them. The American Civil Liberties Union, a union well known for lobbying for individual American freedom, points out that all that is needed for someone to be placed in indefinite detention is “the Attorney General’s finding of ‘reasonable grounds to believe’ involvement in terrorism or activity that poses a danger to national security” (How the Anti-Terrorism Bill Permits Indefinite Detention of Immigrants). This benchmark is just as vague and infinitesimal as the standards required for roving wiretaps to be established. It is unheard of to allow such a serious sanction to be imposed on an individual without any clear and convincing evidence.  Meanwhile, there is nothing at all requiring, or even permitting, infinite detainees to any sort of trial or hearing in which their threatening intentions are proven. It is utterly daunting to think that our nation is empowered to assign what is essentially a life sentence without giving the arrestee any trial or hearing.

As the American Civil Liberties Union puts it, “What amounts to a life sentence should at a minimum be based on clear proof at a hearing, not on a certification of merely the level of suspicion that normally allows only a brief stop and frisk on the street” (How the Anti-Terrorism Bill Permits Indefinite Detention of Immigrants). It is scary to realize that the U.S. government is using a certain level of suspicion, a level that that normally authorizes a small altercation or search in public, to incarcerate someone for potentially the rest of his or her life. While this does not directly affect American citizens, it very well might in the future. If this becomes a standard accepted practice around the world, then American tourists who let their visas expire may soon find themselves spending the rest of their lives in foreign jails simply because one person felt that they were a group of malcontents. In no way is it fair to inflict such a hefty punishment on an individual based on opinions. All people, American or otherwise, have and deserve to maintain their right to a fair trial, a right afforded to them by the Universal Declaration of Human rights, only to be taken away by the Patriot Act.

While it can be discerned that the Patriot Act has helped make our nation more secure, it is quite obvious that this legislation is stripping American citizens of their privacy and personal freedoms. The many abilities of the Patriot Act result in the government having extremely easy access to copious amounts of people’s personal information. This is information that citizens have the constitutional right to keep private, yet the government is effortlessly obtaining it. Our nation has actually instituted legal ordinances permitting the indefinite detention of non-citizens even in the event of immigration status violation, a violation that is completely unrelated to acts of terrorism. Since these practices do assist the security of our nation, they should not be completely renounced, but revised. Perhaps evidence retrieved from roving wiretaps should be limited to cases pertinent to the suspect who was wiretapped. This way, other citizens will not reveal personal or condemning information unwittingly. Also, indefinite detention rules should be revised to be in compliance with the Universal Declaration of Human Rights; all persons should be granted a fair trial and subsequently issued a punishment rather than being detained indefinitely. The Patriot Act is in need of reform, and our nation is in need of new legislation that protects the security of the nation and its citizens without compromising their privacy and freedom.

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