History of the Patriot Act

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USA PATRIOT Act
Committee on Transportation and Infrastructure; Committee on Armed Services
  • Passed the House on October 24, 2001 (Yeas: 357; Nays: 66)
  • Passed the Senate on October 25, 2001 (Yeas: 98; Nays: 1)
  • Signed into law by President George W. Bush
    • on October 26, 2001

    The history of the USA PATRIOT Act involved many parties who opposed and supported the

    September 11 terrorist attacks in 2001. The legislation, though approved by large majorities in the U.S. Senate and House of Representative, was controversial, and parts of the law were invalidated or modified by successful legal challenges over constitutional infringements to civil liberties. The Act had several sunset provisions
    , most reauthorized by the USA PATRIOT Improvement and Reauthorization Act of 2005 and the USA PATRIOT Act Additional Reauthorizing Amendments Act. Both reauthorizations incorporated amendments to the original USA PATRIOT Act, and other federal laws.

    The catalyst for the USA PATRIOT Act occurred on

    lawsuit on April 9, 2004. In April 2005, a Senate Judicial Hearing on the Patriot Act was held. The Act was as controversial as ever, and more than a few groups were campaigning against it. Aside from the Electronic Frontier Foundation (EFF), the ACLU, the Center for Democracy & Technology (CDT), and the Electronic Privacy Information Center (EPIC), the Act had raised the ire of the American Library Association
    (ALA) and the American Booksellers Foundation for Freedom of Expression, who were all extremely concerned about the provisions of the Patriot Act.

    In June, the Select Committee on Intelligence proposed legislation to the House on July 21 as the USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005. It repealed the sunset date for surveillance provisions of the Patriot Act — in other words, it would have made those sections permanent. A number of amendments were also proposed and passed. The House responded on September 11 that they unanimously disagreed with the Senate amendment, and agreed to a conference. One provision struck down was the so-called "sneak and peek" provisions of the Patriot Act. These were struck down after the FBI wrongfully used the provision to arrest Portland attorney Brandon Mayfield on suspicions that he had been involved in the 2004 Madrid train bombings.

    Background

    The Patriot Act made a number of changes to U.S. law. Key acts changed were the Foreign Intelligence Surveillance Act of 1978 (FISA), the Electronic Communications Privacy Act of 1986 (ECPA), the Money Laundering Control Act of 1986 and Bank Secrecy Act (BSA), as well as the Immigration and Nationality Act.

    wiretaps and the interception of communications in order to gather foreign intelligence. FISA established the Foreign Intelligence Surveillance Court (FISC) and a FISC Court of Review which administer foreign intelligence related applications for access to business records, wiretaps, microphone "bugging," physical searches and the use of pen registers and trap and trace devices
    . The Act does not apply to U.S. citizens, but is limited to dealings with foreign powers and nationals.

    The ECPA was an amendment to Title III of the

    Weathermen), non-violent civil rights groups such as Martin Luther King Jr.'s Southern Christian Leadership Conference and violent groups like the Ku Klux Klan and the American Nazi Party.[2] The Church Committee found that most of the surveillance was illegal.[2] Consequently, Title III of the Omnibus Crime Control and Safe Streets Act, though noting that wiretaps and interception of communications are a vital part of the law enforcement, found that wiretapping had been undertaken without legal sanction and were being used to overhear the private conversations of U.S. citizens without their consent. These conversations were then often being used as evidence in court proceedings. Therefore, in order to protect the integrity of the courts while also ensuring the privacy of citizens was not violated, the Act provided a legal framework within which wiretaps and interceptions of communications could be used. The Act requires a court order authorizing the use of such measures against U.S. citizens, with penalties for those who do not get such authorization. The notable exception to these orders is in section 18 U.S.C. § 2511(3)
    , which makes an exception to the restrictions of wiretaps in cases where the President must take measures to protect the U.S. from actual or potential hostile actions from a foreign power.

    When Title III was established telecommunications was in its infancy and since that time many advances in communications technology have been made. This made it necessary to update the law to take into account these new developments. Thus, the ECPA was passed, and extended Title III to also protect wire, oral and electronic communications while in transit, as well as protecting stored electronic communications. The ECPA also extended the prohibition of the use of pen register and/or trap and trace devices to record dialling information used in the process of transmitting wire or electronic communications without a search warrant.

    Along with changes to surveillance measures, the Patriot Act also made substantial changes to laws relating to money laundering. The main law changed was the

    tax evasion
    or other criminal activities. The MLCA, passed in 1986, further enhanced the BSA by making it a crime to structure transactions in such a way as to avoid BSA reporting requirements.

    Immigration law was also tightened under the Patriot Act. The

    Real ID Act of 2005
    .

    September 11, 2001 terrorist attack

    The catalyst for the USA PATRIOT Act occurred on

    War on Terror
    and soon thereafter senators from both sides of politics started working on legislation that would give law enforcement greater powers and to prevent and investigate terrorism in the United States. The Patriot Act was written by Jim Sensenbrenner.

    According to The Washington Post, Viet Dinh — who was then the Assistant Attorney General of the United States — started work on measures to increase the authority of Federal Agencies, reportedly based upon the understanding that "[t]he charge [from then Attorney General John Ashcroft] was very, very clear: 'all that is necessary for law enforcement, within the bounds of the Constitution, to discharge the obligation to fight this war against terror.' "[3] Simultaneously, Jim Dempsey of the Center for Democracy and Technology (CDT), expressed concerns that civil liberties might be trampled in the rush to push through legislation. According to Dempsey, it was hard enough to get their attention, but "[even if] you [did,] some members of the House and Senate were, 'Don't bother me with the details.' "[3] Various interested parties, including the CDT, the Electronic Frontier Foundation (EFF), the American Civil Liberties Union (ACLU) and the Electronic Privacy Information Center (EPIC), closely scrutinised and critiqued the various proposed bills leading to the final Act, as well as the Act itself once passed.

    First bills introduced

    Within a few weeks of the September 11 attacks, a number of bills attempting to make changes to anti-terrorism laws were introduced into Congress. The first bill proposed was the Combating Terrorism Act of 2001, which was introduced by Republican senators

    National Guard to pre-emptively disrupt domestic acts of terrorism that used weapons of mass destruction and called for long-term research and development into terrorist attacks. It also called for a review of the authority of Federal agencies to address terrorist acts, proposed a change that would have allowed the CIA to recruit terrorist informants and proposed to allow law enforcement agencies to disclose foreign intelligence that was discovered through wiretaps and other interception methods. The amendment proposed a Sense of Congress that not enough was being done to impede and investigate terrorist fundraising, and sought to increase measures to prevent the laundering of the proceeds of terrorism.[4]

    The Public Safety and Cyber Security Enhancement Act was introduced on September 20 to the House by Republican Rep.

    cable TV subscriber privacy, as well as various changes to pen register and trap and trace laws. The bill would have made an exception for foreign intelligence gathering in the laws that require a court order necessary for pen register and trap and trace surveillance. It would also have removed restrictions on the prohibition of gaining access to cable television subscriber records and only prohibited the disclosure of viewing patterns of cable television subscribers.[6]

    The Intelligence to Prevent Terrorism Act was introduced to the Senate on September 28 by Senators Bob Graham (D-FL) and Jay Rockefeller (D-WV).[7] The bill proposed a number of changes relating to the Director of Central Intelligence (DCI). The most significant change proposed was to require the Attorney General or head of any other Federal department or agency to disclose to the DCI any foreign intelligence acquired in the course of a criminal investigation. However, it would also have required that the DCI and Secretary of the Treasury jointly report to Congress as to whether it would be a good idea to reconfigure the Office of Foreign Assets Control and its Foreign Terrorist Asset Tracking Center to provide for the analysis and dissemination of foreign intelligence relating to the financial capabilities and resources of international terrorist organizations. It would also have required the DCI to establish and maintain a National Virtual Translation Center[8] for timely and accurate translations of foreign intelligence for elements of the intelligence community. Another area it covered was a proposal to make the Attorney General provide a program of training to Government officials regarding the identification and use of foreign intelligence.[9][10]

    Anti-Terrorism Act of 2001 and Financial Anti-Terrorism Act

    Meanwhile, Republican Senator Orrin Hatch, along with Democratic senators Patrick Leahy (D-VT) and Arlen Specter (R-PA), had been working with John Ashcroft on a draft bill, called the Anti-Terrorism Act of 2001. On September 19, 2001, this first draft is introduced to Congress. Many of the most controversial aspects of the USA PATRIOT Act were first part of this draft and it was later to be introduced as the PATRIOT Act/USA Act — which in turn became the basis for the final USA PATRIOT Act. Among other things, the administration proposal discussed extending roving wiretaps from the sole domain of domestic agencies into the domain of foreign intelligence surveillance and proposed the expansion of the use of wiretaps from phonelines to Internet technology. It would have made it possible for more law enforcement agencies to disseminate wiretap information and would have expanded the scope of surveillance subpoenas to allow broader access to personal records — including "books, records, papers, documents, and other items."[11][12] Both the bill introduced by Senator Graham and the proposed Anti-Terrorism Act draft were referred to the Select Committee on Intelligence. According to The Washington Post, EPIC's Jim Dempsey and a number of other representatives from other civil liberties groups were invited to discussions about the draft, but Dempsey's recollection was that "They [members of the Department of Justice] were livid, [and they] explicitly said, 'We don't think outsiders should be here, and we won't talk unless they leave the room.'" Although a deal was brokered, this began causing tensions between parties negotiating the bill and previously amicable discussions started breaking down between Leahy and Ashcroft.[3]

    Also introduced into the House was the Financial Anti-Terrorism Act. This bill, which was later incorporated into the final USA PATRIOT Act, was introduced in the middle of October by Republican Representative Mike Oxley (R-OH), and was passed and then referred to the Committee on Banking, Housing, and Urban Affairs.[13] It proposed strengthening financial law enforcement through a number of measures. These included establishing FinCEN as a bureau of the Department of the Treasury, enhancing forfeiture laws and preventing the structuring of transactions to bypass anti-money laundering and reporting legislation.[14] It also proposed establishing measures to increase the cooperation between the public and private sectors when it came to reporting and preventing financial crimes such as money laundering,[15] along with further measures to combat international money laundering.[16]

    Birth of the USA PATRIOT Act

    The first version of the Patriot Act was introduced into the House on October 2, 2001, as the Provide Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) Act of 2001, and was later passed by the House as the Uniting and Strengthening America (USA) Act (H.R. 2975) on October 12.[17] This was based on the afore-mentioned Anti-Terrorism Act, but had been changed after negotiations and work between Attorney General Ashcroft, Senators Leahy, Paul Sarbanes (D-MD), Bob Graham, Trent Lott (R-MS) and Orrin Hatch. It was introduced into the Senate as the USA Act of 2001 (S. 1510) by Tom Daschle (D-SD)[18] where Senator Russ Feingold (D-WI) proposed a number of amendments, none of which were passed. Feingold amended the provision relating to interception of computer trespasser communications,[19] limited the roving wiretap authority under FISA[20] and modified the provisions relating to access to business records under FISA.[21] The USA Act was later vitiated and indefinitely postponed, because the Senate and House bills could not be reconciled in time.[22]

    President George W. Bush signing the USA PATRIOT Act, in the White House's East Room on October 26, 2001.

    The USA PATRIOT Act, H.R. 3162, was introduced into the House on October 23. It incorporated H.R. 2975 and S. 1510 and many of the provisions of H.R. 3004 (the Financial Anti-Terrorism Act).[23] Although there were some objections and concerns raised about the legislation,[24] a motion was made to suspend the rules, and the bill was passed.[25] Patrick Leahy in particular commented that "our ability to make rapid progress [on drafting the bill] was impeded because the negotiations with the Administration did not progress in a straight line. On several key issues that are of particular concern to me, we had reached an agreement with the Administration on Sunday, September 30. Unfortunately, over the next two days, the Administration announced that it was reneging on the deal. I appreciate the complex task of considering the concerns and missions of multiple Federal agencies, and that sometimes agreements must be modified as their implications are scrutinized by affected agencies. When agreements made by the Administration must be withdrawn and negotiations on resolved issues reopened, those in the Administration who blame the Congress for delay with what the New York Times described as "scurrilous remarks," do not help the process move forward."[26] The Act was opposed by only one vote, the sole dissenting Senator being Russ Feingold[27] who found a number of measures objectionable or troubling. Feingold's concerns included the way that the bill was passed,[28] aspects of the wiretapping provisions, the changes to search and seizure laws,[29] the expanded powers under FISA that allowed law enforcement to gain access to business records[30] and the changes to detention and deportation laws for immigrants.[30] The Act had a number of "sunsets" included in it after insistence by Republican Representative Richard Armey (R-TX)[3] However, the Act took into account any ongoing foreign intelligence investigations and allowed them to continue once the sections had expired.

    Opposition grows

    After the USA PATRIOT Act was passed it remained controversial, and began to be questioned by some members of Congress. On June 13, 2002, the

    U.S. District Judge Ellen Segal Huvelle ordered the Department of Justice to complete its processing of the FOI request by January 15, 2003.[35]

    Meanwhile, on July 31, the Protecting the Rights of Individuals Act was introduced into the Senate by Senators

    quote that "those who would give up Essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." Among other things, it proposed a 90-day review period after which 11 sections of the Patriot Act would cease to have effect. It would have reverted the sections on sneak and peek searches, expansion of pen register and trap and trace authorities as well the authority for the FBI to gain access to records and other tangible items under FISA. Also reverted would have been the sections that changed the primary purpose test for foreign intelligence surveillance under FISA to "significant purpose", the mandatory detention of aliens, the use of National Security Letters and the broadened definition of "domestic terrorism." The bill was referred to subcommittees for consideration, where no further action was taken before the end of the 108th Congress. The bill never went further and it was never reintroduced. The bill was publicly supported by the ACLU[40] and the EFF.[41]

    Further controversy soon came to a head when, in late January 2003, the founder of the Center for Public Integrity, Charles Lewis, published a leaked draft copy of an Administration proposal titled the Domestic Security Enhancement Act of 2003.[42] The document was quickly dubbed "PATRIOT II" or "Son of PATRIOT" by the media and organisations such as the EFF.[43] The draft, which was circulated to 10 divisions of the Department of Justice,[44] proposed to make further modifications to extend the USA PATRIOT Act[45] and would have made more changes to FISA, including extending the definition of a foreign power in relation to FISA and allowed the use of wiretaps 15 days after Congress authorized the use of military force (currently, the law allows this only after a declaration of war). Further, it would have allowed Federal agencies to acquire foreign government's spoken communications and would have expanded the use of pen registers under FISA to apply to U.S. citizens. It proposed that the FISA Court of Review be allowed to employ a lawyer with security clearance to defend the judgement of the FISC, and would have expanded the use of law enforcement investigative tools under FISA. Further gags were proposed in the draft and, had it been introduced into Congress, it would have prevented the disclosure of terrorism investigation detainee information, "Worst Case Scenario" information and information relating to Capitol buildings. The draft contained measures to further restrict what participants in Grand Jury terrorism hearings could disclose, while other proposed measures would have enhanced investigations into terrorism, including the establishment of a terrorism identification database. Changes were proposed to define terrorism as a crime and the legal framework with which to prosecute such crimes. Further modifications would have also changed immigration and border-security laws.[46] Although the Department of Justice released a statement that it was only a draft,[47] it caused an enormous amount of controversy, with many criticising it for impinging on privacy and civil liberties.[45] In particular, Patrick Leahy complained that "If there is going to be a sequel to the USA PATRIOT Act, the process of writing it should be open and accountable. It should not be shrouded in secrecy, steeped in unilateralism or tinged with partisanship. The early signals from the Administration about its intentions for this bill are ominous, and I hope Justice Department officials will change the way they are handling this."[48]

    By now public opinion of the Act appeared to be waning, with a

    Palestinian Islamic Jihad, which is classed as a terrorist organization by the United States government.[54][55] Ashcroft cited the arrests to show how the Patriot Act had broken down information sharing barriers between agencies. The speeches themselves were met with support, but in many states Ashcroft attracted protests and a number of critical editorials were written[51][52] — in one particularly stinging column, The Philadelphia Inquirer wrote that there was "an air of desperation about it."[56]
    Meanwhile, controversy over the Patriot Act was leading to resistance from many State and local governments.
    Nullification).[57][58]
    Eventually, eight states (
    supremacy clause
    , federal law overrides state and local laws.

    Security and Freedom Ensured Act

    The Security and Freedom Ensured Act (SAFE)[60] was introduced some time later by Republican Senator Larry Craig (R-ID). It was introduced on October 2, 2003, and was co-sponsored by Senators John E. Sununu (R-NH) and Richard Durbin (D-IL) and would have limited the scope of roving wiretaps,[61] changed the "sneak and peek" delayed notification period from "within a reasonable period" to not later than 7 days after execution of the warrant,[62] restored the requirements for seizure of business records that there are specific and articulate facts that business records are those of a foreign power or agents of a foreign power[63] and prevent the use of National Security Letters to gain access to library records.[64] It also would have extended the sunset provisions of the Patriot Act to include section 213 (Authority for delaying notice of the execution of a warrant), section 216 (Modification of authorities relating to use of pen registers and trap and trace devices), section 219 (Single-jurisdiction search warrants for terrorism) and section 505 (Miscellaneous national security authorities).[65] The EFF urged the swift passage of the bill,[66] while Senator Russell Feingold urged the bill be passed as "[t]hese are reasonable and moderate changes to the law. They do not gut the provision. They do not make it worthless. They do recognize the growing and legitimate concern from across the political spectrum that this provision was passed in haste and presents the potential for abuse. They also send a message that fourth amendment rights have meaning and potential violations of those rights should be minimized if at all possible."[67] In Congressional debate, Rick Durbin stated that "many in Congress did not want to deny law enforcement some of the reasonable reforms contained in the PATRIOT Act that they needed to combat terrorism. So, we reluctantly decided to support the administration's version of the bill, but not until we secured a commitment that they would be responsive to Congressional oversight and consult extensively with us before seeking any further changes in the law."[68]

    In response to the bill, Attorney General Ashcroft wrote a four-page letter to Congress urging them not to make wholesale changes to the Patriot Act, and warned that President Bush would

    Conference report prepared. However, the co-sponsors of the Act were extremely unhappy with the report, stating that "[t]he conference report, in its current form, is unacceptable. There is still time for the conference committee to step back and agree to the Senate's bipartisan approach. If the conference committee doesn't do that, we will fight to stop this bill from becoming law". Thus, this bill never proceeded any further.[72]

    Judicial and legislative challenges

    A number of sections were struck by the courts. Section 805 of the Patriot Act allowed the U.S. government to prohibit citizens from

    chilling effects on First Amendment rights.[73][74] Soon after the decision, the Department of Justice released a statement that "The provision at issue in today's decision was a modest amendment to a pre-existing antiterrorism law that was designed to deal with real threats caused by support of terrorist groups. By targeting those who provide material support by providing 'expert advice or assistance' the law made clear that Americans are threatened as much by the person who teaches a terrorist to build a bomb as by the one who pushes the button."[75]

    American Civil Liberties Union v. Ashcroft

    United States Constitution because section 2709 failed to spell out any legal process whereby a telephone or internet company could try to oppose an NSL subpoena in court. They also argued that section 2709 prohibited the recipient of an NSL subpoena from disclosing that they had received such a request from the FBI, and therefore outweighed the FBI's need for secrecy in counter-terrorism investigations. The Court subsequently found the NSL provisions of the ECPA unconstitutional. It reasoned that it could not find in the provision an implied right for the person receiving the subpoena to challenge it in court as is constitutionally required. The court found in favour of the ACLU, and declared the provision unconstitutional.[76]
    The finding of unconstitutionality essentially dismisses any claimed presumptive legal need for absolute secrecy in regard to terrorism cases. However, the USA Patriot Act is affected only if the limits on NSLs in terrorism cases also apply to non-terrorism cases such as those authorized by the Act and even though the NSL was dropped, the John Doe remained under a gag order.

    Legislative action was also undertaken by

    Jerrold Nadler (D-NY), John Conyers Jr., Clement Leroy Otter (R-ID) and Ron Paul. They proposed an amendment to the Commerce, Justice, State Appropriations Bill of 2005 which would cut off funding to the Department of Justice for searches conducted under section 215.[80] The amendment initially failed to pass the House with a tie vote, 210–210.[81] Although the original vote came down in favor of the amendment, the vote was held open and several House members were persuaded to change their votes.[82] However, on June 15, 2005, they made a second attempt to limit section 215 searches in an amendment to another House appropriations bill[83] and this time it passed with a vote of 238–187 in favor of the Sanders amendment.[84]

    Not all proposed legislation was against the Patriot Act, however. In July 2004, Senator Jon Kyl introduced the Tools to Fight Terrorism Act into the Senate. In a statement given on September 13 to the Senate Committee on the Judiciary, Senator Kyl stated his concern that "Congress has enacted no major antiterror legislation since the passage of the USA Patriot Act almost three years ago."

    lone wolf terrorists," allowed greater sharing of intelligence between federal authorities and state and local authorities, punish those making terrorism hoaxes, and impose 30-year mandatory-minimum penalties for possession of shoulder-fired anti-aircraft missiles, atomic and radiological bombs, and variola virus.[86]
    However, perhaps due to the increasingly controversial nature of the Act, the Senate did not further consider the proposed legislation.

    Lead up to reauthorization

    By now the sunsets in the Patriot Act were getting closer to expiring. The Bush administration had been campaigning for the reauthorization of the Act for some time, with the President speaking about the Act in his 2004 State of the Union Address, where he said that,

    Inside the United States, where the [War on Terror] began, we must continue to give our homeland security and law enforcement personnel every tool they need to defend us. And one of those essential tools is the Patriot Act, which allows federal law enforcement to better share information, to track terrorists, to disrupt their cells, and to seize their assets. For years, we have used similar provisions to catch embezzlers and drug traffickers. If these methods are good for hunting criminals, they are even more important for hunting terrorists. Key provisions of the Patriot Act are set to expire next year. The terrorist threat will not expire on that schedule. Our law enforcement needs this vital legislation to protect our citizens. You need to renew the Patriot Act.

    — 2004 United States State of the Union Address, United States President George W. Bush.
    President George W. Bush urged the reauthorization of the USA PATRIOT Act during a speech given during the swearing in of Attorney General Alberto Gonzales
    .

    President Bush also strongly urged for the Patriot Act to be reauthorized immediately when he swore in the successor to Attorney General John Ashcroft, Alberto Gonzales. In his swearing-in speech for Gonzales, Bush stated that "[m]any key elements of the Patriot Act are now set to expire at the end of this year. We must not allow the passage of time or the illusion of safety to weaken our resolve in this new war. To protect the American people, Congress must promptly renew all provisions of the Patriot Act this year."[87]

    In April 2005, a Senate Judicial Hearing on the Patriot Act was held. The newly appointed Attorney General admitted that he was "open to discussion" about the Act, but argued that not only was the Patriot Act working well and needed few changes, but that all 16 of the expiring sections of the Act should be reauthorized. He in particular commented on section 215, the section allowing national security authorities to produce court orders under FISA to gain access to personal records, and section 206, the roving wiretap authority provision. He emphasised "the department has not sought a Section 215 order to obtain library or bookstore records, medical records or gun sale records. Rather, the provision to date has been used only to obtain driver's license records, public accommodation records, apartment leasing records, credit card records and subscriber information, such as names and addresses for telephone numbers captured through court-authorized pen register devices." Section 217, the "sneak and peek" search provisions, were also raised as a concern and were defended by the Department of Justice.[88][89][90]

    President Bush continued to campaign for the reauthorization of the Act. In a speech given in June 2005 to the Ohio State Highway Patrol Academy he reiterated his belief that key provisions should be reauthorized, and that "The Patriot Act has accomplished exactly what it was designed to do: it has protected American liberty and saved American lives. For the sake of our national security, Congress must not rebuild a wall between law enforcement and intelligence."[91][92] However, by this time the Act was as controversial as ever, and more than a few groups were campaigning against it. Aside from the EFF, the ACLU, the CDT and the EPIC, the Act had raised the ire of the American Library Association (ALA) and the American Booksellers Foundation for Freedom of Expression, who were all extremely concerned about the provisions of the Patriot Act, with a particular focus on section 215.[93] An even more disparate group called the "Patriots to Restore Checks and Balances" (or PRCB) had also been formed to campaign against the Act, and were urging Congress to let the sections expire. Many unlikely bedfellows formed this group, and those numbered in its membership including the ACLU, the American Conservative Union, Gun Owners of America, and the United States Libertarian Party. The group had also supported the SAFE Act.[94]

    A tense period followed as proponents and critics of the Act continued arguing their respective positions. Tensions came to a head on June 10, when a hearing into the Patriot Act by the

    Jerrold Nadler, a Democratic Congressman representing New York's 8th congressional district, and other witnesses continued speaking despite Sensenbrenner's departure, and C-SPAN cameras continued to roll after microphones in the hearing room had been turned off. According to The Washington Post, James J. Zogby, president of the Arab American Institute, complained that the action taken by the Chairman was "totally inappropriate — no mike on, and no record being kept" and that "I think as we are lecturing foreign governments about the conduct of their behavior with regard to opposition, I'm really troubled about what kind of message this is going to teach to other countries in the world about how they ought to conduct an open society that allows for an opposition with rights."[95]

    Reauthorization legislative history

    George W. Bush shakes hands with U.S. Senator Arlen Specter after signing H.R. 3199, the USA PATRIOT Improvement and Reauthorization Act of 2005

    In June 2005, the Select Committee on Intelligence met behind closed doors to consider a draft proposal by Pat Roberts (R-KS) which, among other things, would have removed the primary purpose of FISA warrants issued ex parte and in camera to be for foreign intelligence. Instead, the warrants could also have been used for purposes unrelated to foreign intelligence. This was condemned by the ACLU,[96] with ACLU Attorney Lisa Graves complained that the secret hearings into the draft was "an attempt to force the debate onto their terms, versus where the momentum has been headed, which is to roll back the Patriot Act to bring it in line with the Constitution and make sure its tools are focused on terrorists, as opposed to Americans."[97]

    The committee's proposed legislation was introduced into the House on July 21 as the USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005. It repealed the sunset date for surveillance provisions of the Patriot Act — in other words, it would have made those sections permanent. A number of amendments were also proposed and passed. Several of the amendments were to surveillance provisions and included an amendment that added to the list of terrorist crimes that could be used for obtaining electronic surveillance,

    conference
    with the House.

    The House responded on September 11 that they unanimously disagreed with the Senate amendment, and agreed to a conference. They then attempted to make a number of changes to the bill however it was not enough for Republican senators Larry Craig, John Sununu and Lisa Murkowski, and Democratic senators Dick Durbin, Russ Feingold and

    signing statement that "The executive branch shall construe the provisions of H.R. 3199 that call for furnishing information to entities outside the executive branch, such as sections 106A and 119, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties"[122] — in other words, he would not feel bound to comply with some of the provisions of the law if they conflicted with other Constitutional laws.[123] This immediately drew a sharp rebuke from Senator Leahy, who condemned the statement as "nothing short of a radical effort to re-shape the constitutional separation of powers and evade accountability and responsibility for following the law ... The President's signing statements are not the law, and we should not allow them to be the last word. The President's constitutional duty is to faithfully execute the laws as written by the Congress. It is our duty to ensure, by means of congressional oversight, that he does so."[124][125]

    In November 2019, the House approved a three-month extension of the Patriot Act which would have expired on December 15, 2019. Democratic leadership included it as part of a bigger "must pass" spending bill which was approved by a vote of 231–192, mostly along party lines with Democrats voting in favor and Republicans voting against. Only ten Democrats voted against it. Representative Justin Amash (Independent) submitted an amendment to remove the Patriot Act provisions, but it was defeated by the Democratically controlled Rules committee.[126]

    Judges strike key provisions

    Although in the 2004 Doe v. Gonzalez case it was ruled that the NSL provisions of 18 U.S.C. § 2709 violated the First and Fourth Amendments of the U.S. Constitution, the Department of Justice had appealed against this decision. The reauthorization Act, however, modified the law and made judicial review a requirement of NSLs but never removed the permanent gag provision. Therefore, on September 6, 2007, U.S. District Judge Victor Marrero ruled that the use of NSLs to gain access to e-mail and telephone data from private companies for counter-terrorism investigations was "the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values." The court struck down NSLs because the gag power was unconstitutional and courts could still not engage in meaningful judicial review of these gags.[127][128][129]

    Another provision struck down was the so-called "sneak and peek" provisions of the Patriot Act. These were struck down after the FBI wrongfully used the provision to arrest Portland attorney Brandon Mayfield on suspicions that he had been involved in the 2004 Madrid train bombings. They had concluded this wrongly because they believed that they found his fingerprint on a bag of detonators found at the scene.[130] Agents seized three hard drives and ten DNA samples preserved on cotton swabs, and took 335 photos of personal items. Mayfield then filed a lawsuit against the U.S. Government, contending that his rights were violated by his arrest and by the investigation against him, and that the sneak and peek provisions were unconstitutional. The Government was forced to apologise to Mayfield and his family, stating that "[t]he United States acknowledges that the investigation and arrest were deeply upsetting to Mr. Mayfield, to Mrs. Mayfield, and to their three young children, and the United States regrets that it mistakenly linked Mr. Mayfield to this terrorist attack."[131] However, Mayfield took it further and on September 26, 2007, judge Ann Aiken found that the searches violated the provision of the United States Fourth Amendment that prohibits unreasonable searches. Thus the law was declared unconstitutional.[132][133]

    References

    1. SSRN 586616
      .
    2. ^
      Oregon Law Review
      . 81 (4): 1051–1132. Retrieved 2007-10-17.
    3. ^ a b c d O'Harrow Jr., Robert (2002-10-27). "Six Weeks in Autumn". The Washington Post. pp. W06. Retrieved 2007-10-17.[dead link]
    4. ^ a b "Senate Amendment 1562". Center for Democracy and Technology. 2001-11-13. Archived from the original on 2007-09-27. Retrieved 2007-10-17.
    5. ^ H.R. 2915 Archived 2016-01-22 at the Wayback Machine, THOMAS
    6. ^ Public Safety and Cyber Security Enhancement Act. Source: Center for Democracy and Technology. Accessed 26th June, 2007.
    7. ^ S. 1448 Archived 2008-10-07 at the Wayback Machine, THOMAS
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    40. ^ "ACLU Welcomes Bi-partisan "True PATRIOT Act," Measure Seeks to Restore Freedoms Lost Post 9/11" (Press release). American Civil Liberties Union. 2003-09-24. Retrieved 2007-09-05. The American Civil Liberties Union today joined with members of Congress and civil rights groups in welcoming bi-partisan legislation aimed to correct some of the most contentious provisions of the USA PATRIOT Act and other controversial measures adopted post 9/11. At a news conference today, Reps. Dennis Kucinich (D-OH) and Ron Paul (R-TX) unveiled their "Benjamin Franklin True Patriot Act."
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    51. ^ a b Lichtblau, Eric (2003-09-08). "Ashcroft's Tour Rallies Supporters and Detractors". The New York Times. Retrieved 2008-03-23.
    52. ^ a b Morrison, Jane Ann; Puit, Glenn (2003-08-27). "Ashcroft touts Patriot Act's virtues". Las Vegas Review-Journal. Retrieved 2007-10-17.
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    54. ^ "FBI charges Florida professor with terrorist activities". CNN. 2003-02-20. Retrieved 2007-10-17.
    55. Findlaw
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    57. ^ "Town criminalizes compliance with Patriot Act". CNN. 2003-05-18. Archived from the original on 2005-04-04.
    58. ^ Nieves, Evelyn (2003-04-21). "Local Officials Rise Up to Defy The Patriot Act". Washington Post. p. A01. Archived from the original on February 18, 2011.
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    66. ^ EFF: Analysis of the SAFE Act Archived 2008-07-24 at the Wayback Machine, Electronic Frontier Foundation website. Retrieved September 1st, 2007
    67. ^ 2003 Congressional Record, Vol. 149, Page S12377 (October 2nd, 2003)
    68. ^ 2003 Congressional Record, Vol. 149, Page S12386 (October 2nd, 2004)
    69. ^ a b "Ashcroft: Bush would veto bill scaling back Patriot Act". Washington/Politics. USA Today. 2004-01-29. Retrieved 2007-10-17.
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    71. ^ "Ashcroft warns of Bush veto on scaled-back Patriot bill". CNN. 2004-01-29. Archived from the original on 2007-07-17. Retrieved 2007-07-24.
    72. ^ "SAFE Act Co-Sponsors Say Patriot Act Conference Report Unacceptable" (Press release). John E. Sununu. 2005-11-16. Archived from the original on 2007-12-23.
    73. ^ Humanitarian Law Project et al. v. John Ashcroft, Findlaw
    74. ^ "Key Patriot Act provision ruled unconstitutional under the First Amendment" (Press release). Humanitarian Law Project. 2004-01-26. Retrieved 2007-07-24. January 26, 2004: The Center for Constitutional Rights announced today that a federal court in Los Angeles has declared unconstitutional a provision of the USA PATRIOT Act, enacted six weeks after the terrorist attacks of September 11, 2001. This is the first judicial ruling in the country declaring part of the Patriot Act unconstitutional. In a decision issued late Friday, U.S. District Judge Audrey Collins ruled that a ban on providing "expert advice and assistance" to terrorist groups violates the First and Fifth Amendments to the Constitution because it is so vague that it "could be construed to include unequivocally pure speech and advocacy protected by the First Amendment."
    75. ^ Citing Mark Corallo, spokesman for the United States Department of Justice. Cited in: Frieden, Terry (2004-01-27). "Federal judge rules part of Patriot Act unconstitutional". Law Center. CNN. Archived from the original on 2007-07-02. Retrieved 2007-07-24.
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    98. ^ H. AMDT 498 Archived 2016-01-22 at the Wayback Machine (21st June, 2005). Proposed by Daniel E. Lungren
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    100. Darrell E. Issa
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    102. ^ H. AMDT 492 Archived 2016-01-22 at the Wayback Machine (21st June, 2005). Proposed by Jeff Flake
    103. ^ H. AMDT 493 Archived 2016-01-22 at the Wayback Machine (21st June, 2005). Proposed by Maxine Waters
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    107. ^ H. AMDT 497 Archived 2016-01-22 at the Wayback Machine (21st June, 2005). Proposed by Howard L. Berman
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    127. ^ "Federal Court Strikes Down National Security Letter Provision of Patriot Act" (Press release). American Civil Liberties Union. 2007-09-06. NEW YORK - A federal court today struck down the amended Patriot Act's National Security Letter (NSL) provision. The law has permitted the FBI to issue NSLs demanding private information about people within the United States without court approval, and to gag those who receive NSLs from discussing them. The court found that the gag power was unconstitutional and that because the statute prevented courts from engaging in meaningful judicial review of gags, it violated the First Amendment and the principle of separation of powers.
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    133. ^ Keller, Susan Jo (September 27, 2007). "Judge Rules Provisions in Patriot Act to Be Illegal". The New York Times.

    Further reading

    Law review articles
    Books

    External links

    Government sources
    Supportive views
    Critical views
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