Today in 2001: The USA PATRIOT Act is signed into law

October 26, 2012

Today in Legal HistoryAfter the terrorist attacks of September 11, 2001, the world changed in many ways; the law was particularly affected in this wave of change.

According to civil libertarians, however, these changes were not for the better.

Nearly all of these legal changes can be tied to a single source: the USA PATRIOT Act, which was signed into law by President George W. Bush on October 26, 2001.

The Patriot Act was controversial after its initial passage and continues to be controversial on its eleventh birthday.

The reason for this controversy is simple: the abovementioned changes that were (and continue to be) decried by civil libertarians.

What isn’t so simple, though, is the law itself.

It took years for many scholars to fully understand the implications of the Act, and even today, some sections have gone untested as to their full repercussions.

Summarized (very) briefly, the Act expanded domestic enforcement against terrorism, changed the definition of “terrorism,” authorized broad surveillance techniques by law enforcement, imposed new anti-money laundering provisions, and expanded immigration enforcement (among other, more minor provisions).

Even though that “brief” description of the Act’s reach doesn’t cover everything, you still may have well spotted a few of the changes that have disturbed civil libertarians (i.e. nearly all of them).

As such, the Act has been subject to many, many lawsuits challenging the majority of the changes executed by the law.

One of the challenged provisions that has received some significant public attention is Title II, which relates to government surveillance.

Title II is very extensive, so I’ll be brief (again) in describing it.

Among other things, Title II authorizes judges (upon request from the Department of Justice) to issue an order “authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation” (FBI) or other Federal investigatory agency.

The Justice Department need only show the issuing judge that “such interception may provide or has provided evidence of” a crime related to terrorism – under the Patriot Act’s new definition of the term, of course.

That new definition is far broader than its previous incarnations.

For example, an act of terrorism now means the giving of any “support” to groups designated by the U.S. Government as, or as having links to, terrorist organizations.

While that may sound reasonable in principle, the definition of terrorist organization is broad enough to effectively include any groups that oppose internationally-recognized governments and have used force in that opposition (which means that, during Apartheid in South Africa, the African National Congress (ANC) would have likely been classified as a terrorist organization, and support to the group would have been an act of terrorism).

In addition, the new definition added a subsection on “domestic terrorism,” which is defined as:

  1. any act “dangerous to human life” and is a violation of state or federal criminal law,
  2. occurs primarily within U.S. territorial jurisdiction, and
  3. appears to be intended to:
    1. intimidate or coerce a civilian population;
    2. influence the policy of a government by intimidation or coercion; or
    3. affect the conduct of a government by mass destruction, assassination, or kidnapping.

Given the subjectivity of terms like “dangerous to human life,” “intimidate,” and “coerce,” it’s easy to understand the concerns of civil libertarians that these surveillance authorizations may be abused.

And it looks like I’ve ran out of room without even getting into the Patriot Act’s many other topics, such as how the it authorizes the Attorney General to indefinitely detain an alien (even one here lawfully) who may be engaged in any “activity that endangers the national security of the United States.”

Not only that, but I’ve run out of room before discussing some of the many legal challenges to the Act’s provisions (fortunately, we have 11 years worth of law review articles analyzing the Act and the legal challenges to it).

Regardless, you may yet hear more about the law in the future.

In light of the ongoing controversy in even reauthorizing some of its provisions, although the Patriot Act is 11 years old, it’s still one of the most contentious federal laws on the books today.