The USA Patriot Act - Essay Example

The “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act” (commonly known as the USA Patriot Act) was comparatively mild.’ Critically discuss this statement Name of student Course Tutor Date Introduction The USA patriot Act came into existence after the September 11th attacks, which happened on New York City and Pentagon. The congress started working on several proposed bills after the attack. The Justice Department settled on drafting a bill by the name Anti-Terrorism Act of 2001.1 The bill was first introduced to the house for the provision of proper tools needed to intercept and obstruct terrorism, and it was referred to as PATRIOT ACT of 2001. The bill was passed afterwards by the house to unite and strengthen Americas Act (H.R. 2975). In October 12, 2001, the Act was introduced into the US senate as the Act S, 1510.2 Numerous amendments were introduced to the bill by Senator Russ Feingold and fortunately they were all passed. The introduction of the Act has made a number of changes to US Law.3 The core changed Acts by the Patriot Act of 2001 include; the Money Laundering Control Act of 1986, the Electronic Communications Privacy Act of 1986, the Foreign Intelligence Surveillance Act of 1978, the Immigration and Nationality Act and the Bank Secrecy Act among others.4 Finally the bill was introduced into the house in October 23rd the same year (2001). The Act incorporated H.R. 2975, S. 1510 which incorporated the Financial Anti-Terrorism Act.5 The act was strongly opposed by Senator Russ Feingold and Patrick Leahy who expressed a few concerns about the bill. The rest voted in support of the bill. The final act which was passed comprised a number of sunsets which expired in 2005.6 The USA Patriot Act has, however, been accused of being too mild to unite and strengthen America by providing appropriate tools required to intercept and obstruct terrorism. Most polls carried out in US suggest that most Americans are against the idea of the Patriot Act giving federal agents freedom to spy on American citizens in the process of terrorist hunting.7 Confusion has come about on the indications of the law and complicated debates have been going on whether the congress and white house panicked over the 2001 attacks, which made them to hurriedly pass a law that threatens civil liberties. The law has significantly expanded the power of the federal law enforcement by letting CIA and FBI to share evidence and by allowing investigators of terrorism to access evidence gathering tools used by agents to probe criminals, which have been in use for a long time.8 According to surveys carried out in America, most Americans view the Patriot Act as a catch all phrase with numerous controversial and unconnected administration anti-terrorism policies.9 Most Americans have mistakenly believed that the Patriot Act authorise military tribunals for foreign terrorism suspects. Some of the examples given for this argument are the enemy combatant enemy which was captured in the US and Afghanistan. The policies are confined to the war powers of the president according to the American constitution.10 Americans are not contended about FBI obtaining records from businesses like bookstores, hospitals and libraries among other businesses for the sake of asking whether terrorist have accounts with them. This is one part of the Patriot Act which Americans feel need to be viewed. The Patriot Act which was hurriedly created within the 45 congress days after the 9/11 attacks portrayed controversies from the beginning.11 Most Americans did not detect these controversies till 2002 when librarians in America came out to warn that the privacy of the institution’s records was at jeopardy. Since 2002, numerous communities have come out to argue against the resolution of the law. Civil liberties in America have been eroded over time but this is considered as a norm. Americans are complaining that the act has divided them into two groups who are those who think that it ok and those who do not think so.12 The Act’s chief spokesman Attorney John Ashcroft has often ignored facts and fictions by giving credit to the law for preventing terrorist attacks in the US. Americans who have attempted to question to question the law have been belittled by the spokesperson implying that it is a dictatorial law.13 This way, the power of federal law enforcement agencies has been expanded to collect evidence regarding terrorism and intelligence probes in the US. The serious threatening of the US interests and safety requires strict restrictions to be put in place on basic democratic freedoms and civil liberties.14 In addition, a delicate balance has to be struck in times of crisis to protect the lives of Americans but essential constitutional freedoms and guarantees have to be maintained. The current war on terrorism has instead generated legislation and concerns about this fragile unsubstantiated balance of protecting and safety vs. restraint and restriction.15 Americans are worried whether this balance can be established and maintained in today’s fight against terrorism, the compromises required to be made, and whether there is a common ground between the two opposing objectives. Legal considerations need to be examined in the implementation of the Patriot Act, but America’s twentieth century historical lessons must be used to guide Americans to balance what is required to be the opposite actions evolving a coherent and consistent policy that will bring about fair and equitable treatment of terrorist actions while the safety and freedom of Americans is maintained.16 Legislation The Patriot Act signed in 2001 has given the US government new powers to get personal information about the U.S. citizens and aliens have been detained by government of the US threatening the national security and holding them without public knowledge.17 The federal law enforcement agencies have also been given excessive powers by the act, which authorises them to access students’ and library records and internet wiretap powers as well as broad powers which seize sales records and bookstores to access what has been read by people over time. It has proved hard to challenge such court orders because they are like traditional subpoena.18 This happens despite the fact that American bookstores and libraries are barred from disclosing to people of any kind if they receive orders. The Patriot Act has also expanded the class of immigrants supposed to remove the terrorist grounds and broaden the authority of Attorney General to place immigrants suspected by him or her to be engaged in terrorist activities as well as detention while their removal proceedings are waiting.19 The Patriot Act’s term engaging in terrorist activities has been broadened to incorporate soliciting funds or membership for terrorist organisations even at the point when a specific organisation is legitimately determined in humanitarian and political ends.20 The Act criterion of two or more individuals whether organised or not and who engages in what terrorist activity has delegated more power to the executive branch at the expense of the Bill of Rights, which have been undermined.21 Since the Act does not need judicial or congressional oversight, it is hard to determine its previous provisions and implementations and areas that need extensions or improvements.22 The Patriot Act II is likely to radically expand its law enforcement and intelligence gathering powers without reviews from the judiciary; eliminate judicial oversight over surveillance; allow arrests secretly; create unchecked executive order DNA databases and establish new death penalties which will take away American citizenship from people supporting or are among the disfavored political groups.23 The provision of the Act presumes that everyone accused on terrorism should never be released on bail. Incidents where Americans have been oppressed by the Patriot Act Muslims leaders based in US have claimed that the USA Patriot Act, which was passed to respond to the 2011 attacks is the biggest current threat to the democratic principles of US.24 This criticism came as a result of the hundred Middle Eastern immigrants who were detained after registering voluntarily under new federal guidelines with the Immigration and Naturalization Service. These complaints were aired at a Muslim convention after the incidence. Several American families have come out to sue the US with hopes of getting freedom for family members who have been held and questioned for more than a year at Guentamano Naval Base in Cuba.25 In addition, Muslims in the US feel oppressed by the Act after members of the religion were detained recently because of donating funds to the US based Muslim charities which were later labeled as possible terrorist group supporters. Restrictions bear startling resemblances to various events in the American History, which require domestic security have to be balanced with constitutional protection needed to guarantee civil liberties.26 The US has experienced several excessive government restrictions on constitutional freedoms during crises. The 1798 Alien Sedition Acts illegalised the criticism of presidents. According to the act, the president is not supposed to deport any alien he considers dangerous to the safety of Americans.27 His supporters believed the impending France war would be justified by laying strong measures for promotion of national harmony and removal of internal threats to domestic security. The opponents of the act countered that these laws were to be used to stifle and punish criticisers of the government and its officers. As soon as the civil war begun, Abraham Lincoln suspended the writ of habeas corpus which allowed protestors and rioters to be arrested and held without formal charges.28 The same recurred during the World War I where around 75 socialist and German-American and some pacifist and anti-Ally publications lost the privileges of mailing. Foreign language publication translations were not ordered.29 There was authorization of censorship of all communication, which was moving in and out of the United States. This incidence paralleled the Patriot Act provisions, which allowed liberal access to wiretaps, students and library records and purchases from bookstores.30 The executive order 9066 of the president mandating the World War was held by the Supreme Court, which led to the interment of more than 100,000 Japanese-Americans and Japanese immigrants based on their ancestry.31 The immigrants refused to recognise their preventive detention as a violation of the Equal Protection Clause. Although the public reacted mildly, few Americans were able to detect the full implications of such a scheme. Some Americans were scared that Japanese living along the west coast would assist the Japanese military with invasion plans.32 The fear gripped the country because it came immediately after the bombing of the Pearl Harbor but it was used to justify the treatment of Japanese Americans. Civil liberties were also restricted in the 1950s when the activities of House Un-American accused the citizens of Americans of Communist Party affiliation.33 McCarthy bullied his way to national prominence through exploitation of fear of communism at the cold war’s depth. The war ruined many reputations unfairly with insincerities, guilt and outright lies. Americans joined together to applaud efforts to do away with the US communist influences which was likely to endanger their national security and upset their democratic values which defies their nation. Comparisons between USA Patriot Act and UK Anti Terrorism Laws The major difference of the laws from the two countries is that the UK approval of extraordinary authority and warrant issuance has remained an executive function while in the US; the task has been delegated to the courts.34 Furthermore, the US authority approximate roughly at the best power of the UK officials to arrest and detain terrorist suspects and their subjection to control orders. Officials of the US are enjoying a greater flexibility of using intercepted communication of evidentiary purposes. Most differences between USA Patriot Act and the UK Anti Terrorism Laws can be understood by reaching out to the Fourth United States Constitution.35 The Fourth Amendment condemns opposes government searches and seizures that are unreasonable. This applies in the presence of justifiable privacy expectation. It is not applicable to consensual searches or the overseas search of property from foreign nationals without substantial connection to the US.36 The Amendment begun with presuming that a search or seizure was unreasonable unless it is conducted to pursue a warrant issued by a neutral magistrate upon showing probable causes of believing in committed crimes. The UK police powers under the Terrorism Act 2000 are broad and concerned over opportunities for abuse.37 This act permits investigations of resources of proscribed organisations as well as the commission, preparation and instigation of acts considered to be offenses under the Act. Police are mandated to arrest people without warrants based on reasonable suspicion that they have been engaged in preparing, instigating and commissioning acts of terrorism regardless of the evidence the police concerning the terrorism record of the suspect.38 The government justifies this pre-emptive power of arrest by ordering delay in sufficient information collection. The arrest warrant can sometimes take too long to prevent a terrorist attack. In the US, the case is different because there are no federal statutory provisions as compared to the British authority of arresting terrorist suspects. Under the 4th amendment, the hallmarks of a reasonable arrest are a probable cause to issue a neutral warrant by a magistrate.39 The amendment allows warrant less arrests based on probable cause under specific circumstances. It also permits brief investigative stops and border inspections without warrant and improbable causes, but nothing is equated to pre-emptive power of arrest. In acquisition of communication data, the RIPA of the UK provides lawful acquisition and disclosure of communications data under specific circumstances40. The data is authorized to be communicated if it is necessary. That is, if it is the interest of national security or the economic well being of the UK.41 This is done to prevent and detect crimes or prevent disorder in interest of public safety. Controversially, RIPA requires providers of public communication services to maintain the ability to intercept communication and retain the communicated information. The comparable provisions under the US permit law enforcement and intelligence access to communication data is not held to specific circumstances.42 The data is stored under several schemes and the procedures for enforcing the laws is accessed inn stored wire or electronic communications and transactional records dealing with two types of information. The two types are the custody of the telephone company or any service provider instead of communication parties and communication records and electronic or wire communication content. Law enforcement officers are allowed to access to access the information after acquiring permission from the parties.43 Most identification of customers use and billing information is secured with a subpoena with no customer notification. Intelligence investigators have access to customer communications information under the FISA business record and tangible item authority.44 The USA Patriot Act has limited terrorism investigations, which are conducted to secure foreign intelligence information and protect its citizens against international terrorism. The Act prohibits its recipients from disclosing order existence, but expressly authorises them to consult an attorney with respect to their rights and obligations.45 This Act is very different from UK Anti Terrorism Laws, which has designed various types of laws and passed them with an objective of fighting terrorism. The laws always follow specific bombings and assassinations. Anti-terrorism legislation in the UK includes specific amendments to allow the state bypass its own legislation when fighting terrorisms related crimes under necessity grounds.46 In addition, the citizens will join the government in fighting terrorism unlike now where citizens feel the government is not doing enough to fight terror, but their rights and freedom. 47 Conclusion The Patriot Act has forced Americans to publicly discuss their rights and liberties under the constitution and what can be done to preserve them.48 Several US cities like Alaska, Hawaii and Vermont among others have passed resolutions against the Patriot Act. Other government entities are likely to join them soon if the act will not be amended. Librarians and civil liberties groups in America have proposed to the congress to scale back a federal anti-terror provision, which will allow the FBI to confiscate library records, failure to which they will oppose the Act.49 The act should be amended to explain under what circumstances civil liberties are guaranteed to suspension or change of law; the severity of apparent outside threats before citizen safety is outweighed as well as before citizens’ liberties are tampered with; and how long the restrictions should remain in place.50 Although Americans acknowledge that some temporal limits to freedom may be necessary to pursue and eradicate terrorist networks as well as prevent future attacks, most provisions in Patriot II authorise new government powers without adequate safeguards. Some cases lack limits to terrorism investigations. According to history, sweeping powers of search and surveillance are difficult to take back; just like employed combats as an immediate threat may subsequently be used in unanticipated ways to suppress legitimate dissent.51 There is need for intelligence agencies and law enforcement departments to carefully use their new powers and avoid usage of bona fide investigations into terrorist acts. Most provisions of the act are aimed at curbing non-violent, domestic computer crimes; and have no apparent direct connection as it should be the case. Although the balance between civil liberties and sufficient intelligence gathering is difficult, the government must ensure it provides an effective mean of dealing with criminality while minding the constitution at the same time. Being mindful of the constitution will require considering the privacy of citizens, but at the same time meeting technological needs of gathering intelligence. Courts should punish people involved in misusing their powers if laws are misused by spying on innocent people. The congress should also scrutinise its decision of granting broad and unchecked powers. Although the 2003 freedom forum study in the US reported that more than half of US citizens studied thought they have too much freedom of speech as citizens, they must be on the look out to protect their essential civil liberties.52 It is easy to trample civil liberties thinking that it will ensure domestic security, but it can be a serious loss to hard to fight Americans freedoms. Americans must win the battle against terrorism without constitutional dismantles. This will ensure democratic freedom at home and abroad. The UK on the other hand promotes state defense against terrorism through basic military policies acceptable to its citizens. The UK has ostensible defensive roles instead of overt offensive roles in fighting terrorism used By the US. The UK military has identified a focused expedition warfare which is supported by all party House of Commons defense committee. The US should perhaps borrow a few ideas from the UK Anti Terrorism Laws to enable it reform its own. This will transform the Patriot Act of the US to a terrorism fighting law instead of a rights and freedom suppresser of the US citizens. Bibliography Brasch W, Americas Unpatriotic Acts: The Federal Governments Violation of Constitutional and Civil Rights. (Peter Lang Publishing, 2005). Cole D and Dempsey J, Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security, (W. W. Norton & Co., 2002.) Feikert C and Doyle C, Anti-terrorism authority under the laws of the United Kingdom and the United States. (CRS Report of Congress, 2006.) Herman, SN, Taking Liberties: The War on Terror and the Erosion of American Democracy, (Oxford University Press, 2011.) Logan C, Liberty or Safety: Implications of the USA PATRIOT Act and the U.K.s Anti-Terror Laws on Freedom of Expression and Free Exercise of Religion. 2011 Seton Hall Law Review, Volume 37 | Issue 3 Article 11. Mailman S, Merritt J, Theresa MB, Vliet V, and Yale-Loehr S, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) Act of 2001: An Analysis. (Matthew Bender & Co., Inc., 2012). Mojuyé B, What Banks Need to Know About the PATRIOT Act", (124 Banking L.J. 258, 258, 2007). Roach K, The 9/11 Effect: Comparative Counter-Terrorism. ( Cambridge University Press, 2011). Phelan J, Patriot Act. (Hachette, 2007). Wong KC (a), The Impact of USA Patriot Act on American Society: An Evidence Based Assessment (N.Y.: Nova Press, 2007) Wong, KC, (b) The Making of USA Patriot Act: Legislation, Implementation, Impact (Beijing: China Law Press, 2007) Van Bergen J, "In the Absence of Democracy: The Designation and Material Support Provisions of the Anti-Terrorism Laws". Cardozo Pub. Law Policy & Ethics Journal 2 (2003), 107. Read More