I said I would be writing about the PATRIOT Act in a future post, so here it is…
The attacks on September 11, 2001 exposed significant weaknesses in the United States’ intelligence apparatus and security controls. On October 26, 2001, the President signed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act, which was intended to deter and punish terrorist attacks and enhance law enforcement investigation capabilities. The “PATRIOT Act” has been heralded by law enforcement agencies, but civil liberties organizations have described it as an assault on our Constitutional rights.
The PATRIOT Act was enacted to provide more investigative tools to law enforcement agencies and to close some of the gaps that allowed 19 Islamic extremists to hijack four commercial airliners and murder thousands of innocent human beings. Some of the capabilities that the PATRIOT Act provided are similar to tools being used to investigate organized crime and drug trafficking, including wiretaps. The Act also allows more flexibility for notification of search warrants, investigation of business records, facilitation of information sharing between agencies, and more severe penalties for terrorism crimes.
The PATRIOT Act has many features that have kept America safe since the 9/11 attacks. Dr. James Carafano highlights in his article “U.S. Thwarts 19 Terrorist Attacks Against America Since 9/11“, that, as the title implies, 19 terrorist plots that have been disrupted since September 11, 2001. This includes, most notably, Richard Reid, Jose Padilla, the Lackawanna Six, the Fort Dix Six, and the JFK airport plot. Arguably, some of these plots were interrupted by luck and a more vigilant public, but investigations went much smoother and information was shared much more effectively because of the PATRIOT Act provisions.
One of the most significant issues that limited our ability to prevent the attacks of 9/11 was “the wall” between intelligence agencies and even within agencies. Amy Zegart states in her book, Spying Blind: The CIA, the FBI, and the Origins of 9/11, that there were 23 opportunities to disrupt the 9/11 plot, but the organizational weaknesses in the Federal Bureau of Investigation and Central Intelligence Agency prevented any response to the threats. Specifically, the culture within the FBI allowed stovepipes to be formed where information never made it past the organization that discovered it. Some of these organizational boundaries were for good reason since the bureau was, in essence, a reactive organization that gathered information after an event and protected it so it could be used in trial. The FBI’s mission prior to 9/11 wasn’t to disrupt terrorist plots. Zegart also points out that protecting information vs. sharing and responding to a disaster vs. preventing one were two of the culture shifts that needed to occur in the FBI, CIA, and other agencies. The PATRIOT Act helped break down the intra and interagency walls by allowing information to be shared legally and it has improved greatly since the attacks at all levels. Further, the National Response Plan/Framework was developed to facilitate cooperation and has enabled the public and private sectors to effectively work together to prepare for and provide a unified national response to any hazard. Information Sharing and Analysis Centers (ISAC’s) have been set up to help share threat information to all the potential stakeholders and the Homeland Security Information Network (HSIN) provides and online collaborative environment to post unclassified intelligence to authorized users within the public and private sectors. Finally, the Act paved the way for the Joint Terrorism Task Force (JTTF), which has enabled agencies to share people, equipment, and most important, intelligence.
As previously mentioned, the PATRIOT Act allows for similar tools and tactics that have been successfully employed for investigating organized crime and drug trafficking. The Act allows Federal agents more freedom to use electronic surveillance to investigate many of the crimes associated with terrorism, including procurement of weapons of mass destruction, chemical weapons, and financial transactions associated with terrorists and/or terrorist organizations. The Act also allows roving wiretaps to be conducted in order to better track terrorists who are capable of detecting and avoiding detection.
The Act addressed shortfalls in criminal law for terrorist offenses as well. Harboring of terrorists is a new offense that is more severe than a “conspiracy before the fact” charge, which is not applicable unless there was actually a crime. Other conspiracy offenses were upgraded as well to address the severity of the offenses, especially attacking critical infrastructure and interference with flight crews. The Act further addressed aging laws that did not account for 21st Century technology. While not solely for terrorist acts, the Act allows law enforcement to monitor and investigate hackers, which will be especially useful as terrorists yearn to use the Internet as a force multiplier and attack America virtually.
It’s evident that the PATRIOT Act has provided many benefits for law enforcement and prosecutors, but it does have some shortfalls. There are many opponents of the Act who feel it infringes on civil liberties. As we get further away from the events of 9/11, resistance to the Act is increasing. In fact, in 2001 the Act only had one dissent, Senator Russ Feingold (D-WI), and no amendments; however, in the reauthorization act of 2006, the PATRIOT Act was watered down with amendments and 9 Senators joined Senator Feingold in dissent. Some of these amendments include narrowing the scope of delayed notification search warrants, which in effect can unravel an investigation.
The American Civil Liberties Union (ACLU) is one of the lead opponents of the PATRIOT Act. They suggest that the Act violates the First Amendment by authorizing investigations of American citizens for exercising their freedom of speech; Fourth Amendment by allowing foreign intelligence searches without probable cause; and Fifth Amendment by allowing indefinite incarceration and denying due process.
Supreme Court Justice Robert Jackson once said “the Constitution is not a suicide pact” and his quote was the rallying cry for the changes needed to better protect the homeland, even if we had to yield some of our civil liberties. The changes came in the PATRIOT Act and law enforcement agencies are now better equipped to prevent, detect, and deter attacks on the homeland and have succeeded since September 11, 2001.
Terrorists are trying to get to us every day. They only have to be lucky once – we have to stop them every time. We must not be caught sleeping again and if we don’t enable our law enforcement and intelligence agencies with capabilities granted in the PATRIOT Act, we will give the terrorists another advantage.
