Academic journal article Texas Review of Law & Politics

Patriot 2005-2007: Truth, Controversy, and Consequences

Academic journal article Texas Review of Law & Politics

Patriot 2005-2007: Truth, Controversy, and Consequences

Article excerpt

I. INTRODUCTION For a number of years this nation was immersed in a Patriot

Act1 frenzy driven by conservative and liberal politicians, the media, and special interest groups. The frenzy was characterized by sound bites and headlines intended to have an impact on the public but which, unfortunately, often did not illuminate the facts or the actual law enacted by the Patriot Act. Politicians and pundits were quick to label the Act as either good for America and necessary for national security, or as an unconstitutional infringement on civil liberties,2 consistendy failing to reference or accurately describe the exact provisions diat supported their conclusions.3

All of this, of course, took place in a highly charged atmosphere in which the very names "Patriot," "Ashcroft," "Gonzales," and "Bush" brought forth images of right-wing ideologies bent on violating civil liberties to protect national security or increase their personal and partisan control over the government. This context, when added to the general ignorance of the Act, served to dramatically enhance the emotion and confusion that dominated the debate.

It is thus not surprising that one frequendy encounters both citizens and lawyers who sincerely question "the Patriot Act," but, when asked which sections bother them most, often refer to completely unrelated components of the administration's war on terror. It has been common, for example, to hear complaints that it is improper for the Patriot Act to allow government monitoring of communications between an attorney and client. This procedure, however, stems from a 2001 order from the Attorney General to the Bureau of Prisons entided "Monitoring of Attorney-Client Communications of Designated Federal Prisoners,"4 is based on a Supreme Court case,5 and is utilized only when the parties have been advised that their communications are subject to being monitored.6 Regardless of the advisability of the order, it is not connected with the Patriot Act. Citizens have also responded with references to the potential trial of terrorist suspects before military tribunals. These proceedings, however, are based on a 2001 presidential order entided "Detention, Treatment, and Trial of Certain NonCitizens in the War against Terrorism,"7 which in turn relies upon a number of Supreme Court cases,8 and, again, have no connection to the Patriot Act.

Perhaps of greater concern, as will be detailed at length in this article, is the fact that when those who raised serious questions managed to refer to legal concepts that actually are in the Patriot Act, such as "sneak and peak" warrants, the searching of business and computer records, or the Foreign Intelligence Surveillance Act (FISA),9 their characterizations of the statute's provisions, relying as they did on political, media, and special interest sources, was in many cases extremely wide of the mark.10

During the last two years we have finally witnessed the submission of well-formulated legal challenges to the Patriot Act's actual provisions in the courts and before Congress. These challenges have resulted in initial legal opinions by the lower courts as well as amendments to the Act itself in the USA PATRIOT Improvement and Reaudiorization Act of 2005 (PIRA)11 and USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006 (Patriot Amendments Act).12 Now, tiierefore, is a perfect time to step back and accurately examine the most controversial provisions of the Act and review what, if anything, has been done to modify those provisions.

II. PROVISIONS DESIGNED TO INCREASE COMMUNICATION WITHIN GOVERNMENT

During the aftermath of September 11th, commentators and politicians proclaimed that the reason for the success of the attacks was because the Federal Bureau of Investigation (FBI), whose focus is law enforcement, and Central Intelligence Agency (CIA), whose focus is intelligence, did not communicate with each other.13 If they had communicated, according to these critics, they certainly would have been able to "connect the dots" that stood out in isolated pieces of information known to some government agents but apparently not collected and understood by analysts in one central office. …

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