Research Paper: Civil Rights Does the Patriot

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Civil Rights

Does the Patriot Act Violate our Civil Rights?

When viewed through the lens of Constitutional Civil Rights, The Patriot Act is a monster. Conceived and enacted in post-9/11 hysteria, the Act systematically decimates Civil Liberties. Furthermore, despite later legislation that supposedly tempered the Act's more egregious violations, the Patriot Act remains a monument to governmental oppression in a supposedly free society. The list of repugnant Act sections and Civil Rights violations is so extensive that they cannot be adequately addressed in this paper; however, even a confined discussion of Sections 213, 214 and 215 vs. The Fourth Amendment reveals legislation that is devastating to Civil Liberties.

Body

Background

The "Patriot Act" as we currently know it is actually an amalgam of Congressional measures passed from 2001 through 2011. On September 11, 2001, terrorists staged multiple attacks on the United States. Within 2 months of that attack, Congress quickly passed the H.R. 3162: "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001" (U.S. Department of Justice, Office of Justice Programs, 2001). Three years later, Congress passed "Pub. L. 108-458: The Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA)," establishing additional anti-terrorist organizations, refining some established organizations, and providing mechanisms for oversight to safeguard individual civil rights and liberties (U.S. Department of Justice, Office of Justice Programs, 2004). One year later, the Act was reauthorized and further fine-tuned by H.R. 3199: "USA PATRIOT Improvement and Reauthorization Act of 2005," (U.S. Department of Justice, Office of Justice Programs, 2005). In 2006, Congress further modified the Act through "S. 2271: USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006," modifying some of the Act's harsher provisions regarding "national security letters" (U.S. Department of Justice, Office of Justice Programs, 2006). Finally, in 2011, "S. 990: PATRIOT Sunsets Extension Act of 2011" was enacted to extend some Act provisions that were set to expire (U.S. Department of Justice, Office of Justice Programs, 2011). Consequently, our current Patriot Act is not merely the notoriously hastily enacted Act of 2001; rather, the present Act results from full decade of federal legislation.

b. Impact on Civil Rights

The original Patriot Act and subsequent related legislation consume hundreds of pages, commentaries on Civil Rights ramifications written before and after enactments of the legislation consume hundreds and perhaps thousands of additional pages, and Civil Rights wrangling between pro-Act and anti-Act camps has lasted for over a decade. Consequently, a full review of the legislation's impact on Civil Rights would take literal volumes. This considerably shorter work will focus on some of the legislation's notable violations of Civil Rights, particularly regarding the legislation's current provisions.

In terms of U.S. Civil Rights, the Patriot Act is a monster. Enacted in swift reaction to devastating attacks within our borders and perceived worldwide terrorist threats, the original Patriot Act significantly increased the U.S. government's spying power and severely reduced our system of checks and balances on that power (Stacy Smith & Hung, 2010, p. 21; (Ibbetson, 2007, p. 133). While a thorough reading of the original Patriot Act gives a stunning glimpse of the effects exerted by panic on a supposedly free society, perhaps the most alarming portions of the Act are Sections 213, 214 and 215. While sections of the Act, alone and in combinations, violate the First, Fourth, Fifth, Sixth and Eight Amendments (Stacy Smith & Hung, 2010, pp. 190-7), this brief paper will address only Sections' 213's, 214's and 215's violations of the Fourth Amendment, as the protections under the Fourth Amendment apparently suffered the worst attacks by those notorious sections.

According to a summary approved by the Department of Justice, Section 213 "Authorizes Federal district courts to allow a delay of required notices of the execution of a warrant if immediate notice may have an adverse result and under other specified circumstances" (U.S. Department of Justice, Office of Justice Programs, 2001). The effect of Section 213, which does not limit these searches to anti-terrorist efforts, is to increase the government's power to "sneak and peek," searching private property and even seizing objects without giving notice to the owner until sometime after the search (Ibbetson, 2007, p. 215). The delay of notice allowed by Section 213 directly violates the U.S. Constitution's Fourth Amendment, which states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized (U.S. National Archives and Records Administration, n. d.).

Prior notice of a search is essential to the protection of Fourth Amendment rights. First, it forces the government to behave openly seeking a warrant before searching, to give reasons amounting to probably cause for the search and to logically limit the scope of the search (Stacy Smith & Hung, 2010, p. 191). The alternative, which is allowed by Section 213 of the Act, is to give the government total, unsupervised power over the search. Secondly, the notice element of the Fourth Amendment gives the person/organization to be searched a reasonable opportunity to know that a search is afoot, review the warrant and argue in court about the irregularities of the warrant (Ibbetson, 2007, p. 91). Without knowing about the intended search via a warrant, the individual/organization has no opportunity to ensure that there is probable cause for the search, that the search is being conducted regarding the correct individual/organization, that the search will be conducted at the correct address, that only pertinent places are searched and only appropriate evidence can be seized (Stacy Smith & Hung, 2010, pp. 36-42). Clearly, delay of the Fourth Amendment's notice requirement guts the rights endowed by that Amendment.

Section 214 of the Act also violates the Fourth Amendment. According to the summary approved by the U.S. Justice Department, Section 214

Prohibits use of a pen register or trap and trace devices in any investigation to protect against international terrorism or clandestine intelligence activities that is conducted solely on the basis of activities protected by the first amendment to the U.S. Constitution (U.S. Department of Justice, Office of Justice Programs, 2001).

Section 214 violates Fourth Amendment protections regarding wiretaps. Traditionally, there are two types of wiretap spying: one allows only monitoring of an address or transaction, also known as a "pen register" or "trap and trace"; the other allows surveillance to capture the actual content of a communication (Stacy Smith & Hung, 2010, p. 33). Due to the less intrusive nature of "pen register"/"trap and trace," a lower standard is traditionally imposed for obtaining the required warrant (Ibbetson, 2007, p. 23). However, Section 214 dictates that the judge approached for a "pen register" or "trap and trace" can issue only a blank warrant that the officer can fill in about the place to be wiretapped as he/she wishes and the warrant can be used nationwide (Stacy Smith & Hung, 2010, p. 33). Here, the supervision guarding the Fourth Amendment's protections against unusual searches and seizures is essentially thrown out the window because the judge cannot specify the place to be wiretapped or have jurisdiction to monitor wiretapping used outside his/her jurisdiction. Furthermore, when extended to the internet, the government applies "pen register"/"trap and trace" to subject headings in e-mails, URLs searched, and URLs used, all of which include content rather than just an address or transaction (Stacy Smith & Hung, 2010, pp. 36-7). In this way, the government uses Section 214 to reach beyond the confines of traditional "pen register"/"trap and trace" wiretaps to capture content, which also violates the Fourth Amendment's safeguards against unreasonable searches and seizures.

Section 215, in some respects the most notorious section of the Act, also violates the Fourth Amendment in several respects. This Section "Authorizes the Director of the FBI (or designee) to apply for a court order requiring production of certain business records for foreign intelligence and international terrorism investigations" (U.S. Department of Justice, Office of Justice Programs, 2001). The essentially free rein given to government regarding record is devastating to Fourth Amendment rights. Here, the government does not need to show that the individual/organization whose records are being sought is an "agent of a foreign power," or give probable cause or even a reasonable suspicion to obtain a warrant to obtain and examine any activity that creates a record. Furthermore, a "gag order" is imposed on any third party handing over the records to the government, so that third party cannot advise the individual/organization that his/her/its records have been demanded and handed over to the government (Stacy Smith & Hung, 2010, pp. 184-6). This violates the Fourth Amendment's prohibition of an unreasonable search and seizure conducted without a showing of probable cause and, like Section 213, denies timely notice to the individual/organization so he/she can effectively oppose the warrant. Due to the fact that Section 215 essentially… [END OF PREVIEW]

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Civil Rights Does the Patriot.  (2013, December 14).  Retrieved May 22, 2019, from https://www.essaytown.com/subjects/paper/civil-rights-patriot/2041364

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"Civil Rights Does the Patriot."  Essaytown.com.  December 14, 2013.  Accessed May 22, 2019.
https://www.essaytown.com/subjects/paper/civil-rights-patriot/2041364.