Term Paper: Patriot Act vs. Constitutionally Guaranteed Rights

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Patriot Act vs. Constitutionally Guaranteed Rights

Patriot Act was passed in haste following the terrorist attacks on the U.S. In 2001. It was reauthorized and amended in 2006. But in its urgency - fueled by extremely fearful times and the mushrooming nationalism spawned by those fears - to provide the legal clout needed to avoid another attack it appears the United States Congress launched its own attack on the Constitution. Specifically, to use a graphic analogy, the U.S. Patriot Act (PA) has slammed into the 4th and 6th Amendments like an airliner into a tall building.

This paper will review the literature surrounding the Patriot Act's intrusion into the Constitution. A review of the issues, the amendments, and how the Patriot Act conflicts with those amendments.

BILL of RIGHTS, AMENDMENT IV: This Amendment states very simply that citizens are protected from unreasonable searches without warrants. To quote from the Bill of Rights, the Fourth Amendment: "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 probably cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

BACKGROUND on FOURTH AMENDMENT: A recent research piece in the Brigham Young University Law Review (Minert 2007) asserts that, to begin with, there are problems for 21st Century individuals involved in justice and law enforcement. Quite apart from Patriot Act considerations, the Fourth Amendment is tricky. That is because, Minert writes, the language in the Fourth Amendment "is inherently ambiguous." Indeed the Amendment forbids "unreasonable searches and seizures" and it certainly does not outline parameters for how a proper search warrant should be given to law enforcement by courts.

Part of the problem, Minert explains, is that the "warrant" clause is not directly tied to the "reasonable" clause. It never states directly that a warrant is a requirement for a "reasonable governmental search and seizure"; and because the Fourth Amendment prohibits "unreasonable searches and seizures and does not technically preclude 'reasonable' searches made without a warrant," there are scholars and judges who have suggested that the constitutionality of searches and seizures should be determined according to a general 'reasonableness' standard," writes Minert. That said, Minert points to the fact that the U.S. Supreme Court has in the past recognized "a number of exceptions to the Warrant Clause of the Fourth Amendment."

Examples of those exceptions include "searches made on United States borders; stop-and-frisk searches by police officers; searches made incident to arrest; searches based on probable cause." Other exceptions include when officers are in "hot pursuit" of suspects and at sobriety checkpoint stops."

And so the point of this preliminary information on the Fourth Amendment is that there have been a number of cases and instances in which the Fourth Amendment has been interpreted in ways that basically get around what the Founding Fathers apparently originally intended as far as the Bill of Rights and Constitutional guarantees.

GENERALIZATIONS: PATRIOT ACT vs. CONSTITUTIONAL GUARANTEES

According to research conducted by Concerned Citizens Against the Patriot Act (CCAPA), freedom of association has been compromised; the government may now "monitor religious and political institutions without suspecting criminal activity" or any evidence of probable cause to monitor. Freedom of information has changed under the Patriot Act: the federal government has closed immigration hearings (which in the past were open to the public), has "secretly detained hundreds of people without charges" and has encouraged government bureaucrats to "resist public records requests."

Freedom of speech has been compromised, CCAPA contends; librarians and others who keep public records may be prosecuted if they "tell anyone the government subpoenaed information related to a terror investigation." The right to legal representation has now been watered down as the Patriot Act allows government to monitor conversations between attorneys and clients in federal prisons "and deny lawyers to Americans accused of crimes." The constitutionally guaranteed freedom from unreasonable searches (Fourth Amendment) is no longer enforced, according to CCAPA's research, as under the Patriot Act the warrant-less search and seizure of any person records (including phone calls and bank records) may be conducted at the whim of the executive branch. Right to a speed trial: Americans may now be jailed "indefinitely without a trial," according to CCAPA. And further, the presumed right to liberty is also compromised as Americans can be (and have been) jailed "without being charged or being able to confront witnesses against them; indeed, "enemy combatants" have been held without specific charges against them, some have been tortured and moved from one remote CIA prison environment to another, according to numerous sources (and not denied by the executive branch).

GENERALIZATIONS #1: PATRIOT ACT TOOLS MISUSED by BUSH ADMINISTRATION / CONFLICTS WITH the FOURTH AMENDMENT

When the Bush Administration promoted the original passage of the Patriot Act, it sited the need to use this as a "tool" for its "war on terrorism"; but according to an article in the New York Times (Lichtblau 2005) reprinted in the CCAPA Web pages (www.scn.org),the administration is using Patriot Act tools to pursue drug traffickers, white-collar criminals, blackmailers, child pornographers, money launderers, spies and corrupt foreign leaders..." As well. Critics say the administration's use of the law in areas outside the bounds of terrorism investigations is evidence that Bush and his administration has "sold the American public a false bill of goods."

Within six months of the original passage of the act, the Justice Department was conducting seminars "...on how to stretch the new wiretapping provisions to extend them beyond terror cases," according to Dan Dodson, speaking in behalf of the national Association of Criminal Defense Attorneys and quoted by the Associated Press within the Times article. What the Justice Department has really done, said Elliot Mincberg, an attorney with People for the American Way, is "to get things put into the law that have been on prosecutors' wish lists for years. They have used terrorism as a guise to expand law-enforcement powers in areas that are totally unrelated to terrorism," Mincberg concluded.

The Times' article also pointed out that the General Accounting Office (a non-partisan agency which investigates for Congress, since Congress has legal oversight or is at least mandated to provide legal oversight) concluded that while indeed the number of investigations into terrorism at Justice "soared after the Sept. 11 attacks, 75% of convictions [under the Patriot Act] that the department classified as 'international terrorism' were wrongly labeled. Many dealt with more common crimes," the article asserted. These intrusions listed constitute violations of the Fourth Amendment.

GENERALIZATIONS #2: PATRIOT ACT TOOLS MISUSED by BUSH ADMINISTRATION / CONFLICTS WITH the FOURTH AMENDMENT

An article in the Dallas Morning News (Mittelstadt 2003) pointed out that the Patriot Act has indeed been used in the past few years for issues entirely apart from terrorism. "The scope of the powers that flow from the language is kind of chilling," said Marge Baker of the People for the American Way organization. "It could touch on anyone they decided they wanted to go after." John Whitehead, president of the Rutherford Institute, said since the law "undermines bedrock principles such as Fourth Amendment protections against unreasonable search and seizures" the Founding Fathers would be "horror-struck at something like the Patriot Act."

The Justice Department - notwithstanding its original support of the act as being designed specifically to detect and deter terrorists - readily admits after the fact that the act "affects the war on crime as well" as the war on terror, according to a May 2002 bulletin to the nation's 94 U.S. attorneys in the Justice Department's Computer Crimes and Intellectual Property Section. "Indeed, investigations of all manner of criminal conduct with a nexus to the internet have benefited from these amendments," Justice Department bulletin stated. In fact, Justice admits that the Patriot Act has been used to "seize a con man's assets," Mittelstadt writes in the Dallas Morning News; the act has also been used to find computer hackers, "identify a hoaxer who made a school bomb threat, and monitor kidnappers' communications."

The Mittelstadt article mentioned that the continuing and unorthodox expanded use of a law designed to protect Americans from another terror attack means the law potentially could be used "against anti-abortion protesters, environmentalists, AIDs activists or other movements with a history of robust, sometimes unlawful activism." The expanded definition means that the law could grant FBI access to records maintained by businesses (financial, library-related, medical and purchasing businesses) if FBI agents "certify that the request is connected to a foreign intelligence investigation or is intended to protect against clandestine intelligence activities or international terrorism." These are all cases of intrusions into the rights of the individual under the Fourth Amendment.

Presently the FBI can conduct "sneak and peak" searches that it deems necessary, and only later provide information about that targeted source, the Dallas Morning News piece explains.

GENERALIZATIONS #3: PATRIOT ACT TOOLS MISUSED by BUSH ADMINISTRATION… [END OF PREVIEW]

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