Controversial invocations of the Patriot Act

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A "warrant canary" on display at a public library in Vermont in 2005, highlighting the FBI's powers to demand sweeping information from libraries under the Patriot Act. The FBI has not been here.jpg
A "warrant canary" on display at a public library in Vermont in 2005, highlighting the FBI's powers to demand sweeping information from libraries under the Patriot Act.

The following are controversial invocations of the USA PATRIOT Act . The stated purpose of the Act is to "deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes." One criticism of the Act is that "other purposes" often includes the detection and prosecution of non-terrorist alleged future crimes.

Contents

Dismissal of United States Attorneys

Dismissal of U.S. attorneys controversy

Seven United States Attorneys were dismissed by the United States Department of Justice on December 7, 2006. Senior members of the White House and the Department of Justice participated in compiling the list of those to be dismissed. [1] The USA Patriot Act Improvement and Reauthorization Act of 2005, which was signed into law on March 9, 2006, extinguished the former 120-day term limit of interim United States Attorneys appointed to fill vacated offices. This in effect gave the U.S. Attorney General greater appointing authority than the president, since the interim U.S. attorneys did not need Senate confirmation, and the presidential nominees do. (An interim U.S. attorney's term expires upon the confirmation and swearing in of a presidentially appointed U.S. attorney, if one is put forward.) [2] Critics have claimed the dismissals were either motivated by desire to install attorneys more loyal to the Republican party or as retribution for actions or inactions damaging to the Republican party. At least six of the eight had positive internal Justice Department performance reports. [2] [3] [4] [5]

A bill, S-214, filed in January 2007, to rescind the no-term-limit interim U.S. attorney provision was approved by very large majorities in both the Senate and the House, and was signed into law by the President on June 14, 2007, designated Public Law No: 110-34 and called the Preserving United States Attorney Independence Act of 2007. [6] The new law also specifies that all Attorney General-appointed interim attorneys then in office shall have a term that ends 120 days from the signing of the bill. As of June 14, 2007, the Department of Justice has more than twenty United States attorney positions that are not presidential appointees, which are filled by either acting US attorneys (held by civil service first U.S. attorneys) or interim U.S. attorneys appointed by the Attorney general. (Terms of district court-appointed interim US attorneys were unaffected by the new law—there was at least one: Paula D. Silsby of Maine, appointed in 2001.) [7]

Adam McGaughey, the webmaster of a fan site for the television show Stargate SG-1, was charged with copyright infringement and computer fraud. During the investigation, the FBI invoked a provision of the Act to obtain financial records from the site's Internet Service Provider. [8] The USA PATRIOT Act amended the Computer Fraud and Abuse Act to include search and seizure of records from Internet Service Providers.

Investigation of potential drug traffickers

In September 2003, The New York Times reported on a case of the USA PATRIOT Act being used to investigate alleged potential drug traffickers without probable cause. The article also mentions a study by Congress that referenced hundreds of cases where the USA PATRIOT Act was used to investigate non-terrorist alleged future crimes. The New York Times reports that these non-terrorist investigations are relevant because President Bush and several members of Congress stated that the purpose the USA PATRIOT Act was that of investigating and preempting potential terrorist acts. [9]

This is also seen by some as a violation of constitutional rights as Defined in Article One of the United States Constitution which states, "No bill of attainder or ex post facto Law shall be passed." Prohibiting a bill of attainder means that the US Congress cannot pass a law which deems a specific person or group guilty and then punish them without trial. Prohibiting an ex post facto law (Latin - literally - after the fact) means that the US Congress cannot make any given act a crime (or a more serious crime) after the time when that act has been committed. It is arguable that this applies to some uses of the Patriot Act and those who watch the Supreme Court are waiting for a case to make its way up so that the judges can rule on it.[ citation needed ]

Blanket requests for financial, library, and other information on visitors to Las Vegas

In November 2005, Business Week reported that the FBI had issued tens of thousands of "national security letters" and had obtained one million financial records from the customers of targeted Las Vegas businesses. Selected businesses included casinos, storage warehouses and car rental agencies. An anonymous Justice official claimed that such requests were permitted under section 215 of the USA PATRIOT Act and despite the volume of requests insisted "We are not inclined to ask courts to endorse fishing expeditions". [10] This didn't just include financial records, but credit records, employment records, and in some cases, health records.

Furthermore, this information is databased and maintained indefinitely by the FBI. Previous legislation required that federal law enforcement destroy any records harvested during an investigation that pertained to anyone deemed innocent. The Patriot Act superseded that and now the records are maintained indefinitely. According to the legislation, they may be "shared with third parties where appropriate" yet nowhere in the legislation does it define who these third parties are or what conditions would be deemed appropriate for the sharing of such records.

The large scale wiretapping and tracing of calls to and from foreign countries also falls under this. Millions of phone records were harvested, fed into a database and were searched for patterns of calling to and from numbers of known terrorists. To date, there have been no announced arrests from this program.

Public libraries have been asked to turn over their records for specific terminals. A few have filed suit, because the National Security Letters that they were presented with were very sweeping, demanding information not just on the individual under investigation, but on everyone who had used specific terminals at the libraries during given time windows. Since many of the users in one case were minor children, one library felt that it had an obligation to notify the parents. The FBI has disagreed and the case is now working its way through the court system.

In June 2005, the United States House of Representatives voted to repeal the Patriot Act provision that had allowed federal agents to examine people's book-reading habits at public libraries and bookstores as part of terrorism investigations. [11]

A National Security Letter can be issued by any FBI agent with the rank of Field Supervisor or above, at their discretion. It does not require a judge or probable cause, as does a search warrant.

Wrongful accusations under the Act

In May 2004, Professor Steve Kurtz of the University at Buffalo reported his wife's death of heart failure. The associate art professor, who works in the biotechnology sector, was using benign bacterial cultures and biological equipment in his work. Police arriving at the scene found the equipment (which had been displayed in museums and galleries throughout Europe and North America) suspicious and notified the Federal Bureau of Investigation (FBI). The next day the FBI, Joint Terrorism Task Force, Department of Homeland Security and numerous other law enforcement agencies arrived in HAZMAT gear and cordoned off the block surrounding Kurtz's house, impounding computers, manuscripts, books, and equipment, and detaining Kurtz without charge for 22 hours; the Erie County Health Department condemned the house as a possible "health risk" while the cultures were analyzed. Although it was determined that nothing in the Kurtz's home posed any health or safety risk, the Justice Department sought charges under Section 175 of the US Biological Weapons Anti-Terrorism Act —a law which was expanded by the USA PATRIOT Act. A grand jury rejected those charges, but Kurtz was still charged with federal criminal mail and wire fraud, and faced 20 years in jail before the charges were dropped. Supporters worldwide argue that this is a politically motivated prosecution, akin to those seen during the era of McCarthyism, and legal observers note that it is a precedent-setting case with far-reaching implications involving the criminalization of free speech and expression for artists, scientists, researchers, and others. [12] [13]

FBI agents used a USA PATRIOT Act "sneak and peek" search to secretly examine the home of Brandon Mayfield, who was wrongfully jailed for two weeks on suspicion of involvement in the Madrid train bombings. Agents seized three hard drives and ten DNA samples preserved on cotton swabs, and took 335 photos of personal items. Mayfield has filed a lawsuit against the U.S. government, contending that his rights were violated by his arrest and by the investigation against him. He also contends the USA PATRIOT Act is unconstitutional. [14] [15] [16]

Controversial requests to the media

The FBI used the USA PATRIOT Act 13 times to request journalists that had interviewed computer intruder Adrian Lamo to preserve their notes and other information while they petitioned the Department of Justice for a subpoena to force the reporters to hand over the information. Journalists involved included newspaper writers, wire service reporters, and MSNBC writers. The Department of Justice did not authorize the subpoena requests because the language of the subpoena violated the Department's guidelines for a subpoena request, rather than recognition of any reporter/source privilege. The requests to preserve information were dropped. In some cases, the FBI apologized for the language of the request. [17] [18] [19]

Other cases

In April 2003, Sami Omar Al-Hussayen was arrested on charges of supporting terrorism by maintaining several web sites that supported violent activities. This crime was created by the 1996 Antiterrorism and Effective Death Penalty Act signed by President Clinton, but was further expanded under the USA PATRIOT Act. Supporters of the Act respond that prosecutors did not try Mr. Al-Hussayen because of his association with the website, but because he actively participated in raising money for terrorist organizations, recruiting terrorists, and disseminating inflammatory rhetoric via his website. Prosecutors said the sites included religious edicts justifying suicide bombings and an invitation to contribute financially to the militant Palestinian organization Hamas.

On the other hand, sometimes critics of the law mistake unrelated prosecution as being under the USA PATRIOT Act. Sherman Austin, anarchist and webmaster of Raise the Fist, plead guilty to violating 18 U.S.C.   § 842(p), a 1997 statute authored by California Democratic Senator Dianne Feinstein which prohibits the distribution of bombmaking information knowing or intending that the information will be used in a violent federal crime. Despite claims to the contrary, the USA PATRIOT Act was not invoked in this case.

On October 24, 2005, David Sobel of the Electronic Privacy Information Center (EPIC) obtained FBI Papers under the Freedom of Information Act that revealed that the FBI had been conducting surveillance on citizens for lengthy periods of time without correct paperwork. A total of 13 cases from 2002 to 2004 were referred to the President's Foreign Intelligence Advisory Board's Intelligence Oversight Board. [20]

Lawsuits

Klayman v. Obama

Ongoing news reports in the international media have revealed operational details about the United States' National Security Agency (NSA) and its international partners' global surveillance [21] of foreign nationals and American citizens. The reports emanate from a cache of top secret documents leaked by the former NSA contractor Edward Snowden. On June 6, 2013, the first of Snowden's documents were published simultaneously by The Washington Post and The Guardian , attracting considerable public attention. [22] Shortly after the disclosure, plaintiffs Larry Klayman, founder of Freedom Watch, Charles Strange and Mary Strange, parents of Michael Strange, a cryptologist technician for the NSA and support personnel for Navy Seal Team VI who was killed in Afghanistan, filed lawsuit challenging the constitutionality of the bulk metadata collection of phone records (Klayman I). [23] Plaintiffs joined by Michael Ferrari and Matt Garrison filed a second lawsuit on June 12, 2013 challenging the constitutionality of bulk metadata collection of both phone and Internet communications (Klayman II). [24]

In Klayman I, the plaintiffs, subscribers of Verizon Wireless, brought suit against the NSA, the Department of Justice, Verizon Communications, President Barack Obama, Eric Holder, the United States Attorney General, and General Keith B. Alexander, the Director of the National Security Agency. [25] The plaintiffs alleged that the government is conducting a "secret and illegal government scheme to intercept vast quantities of domestic telephonic communications with" and that the program violates First, Fourth and Fifth Amendment and exceeds statutory authority granted by Section 215. [25] In Klayman II, the plaintiffs sued the same government defendants and in addition, Facebook, Yahoo!, Google, Microsoft, YouTube, AOL, PalTalk, Skype, Sprint, AT&T, Apple again alleging the bulk metadata collection violates the First, Fourth and Fifth Amendment and constitutes divulgence of communication records in violation of Section 2702 of Stored Communications Act. [24]

Others

In 2015, the Second Circuit appeals court ruled in ACLU v. Clapper that Section 215 of the Patriot Act did not authorize the bulk collection of phone metadata, which judge Gerard E. Lynch called a "staggering" amount of information. [26]

On April 6, 2004, the American Civil Liberties Union sued the FBI and DHS over the USA PATRIOT Act's authority to demand that a business hand over records that may contain private financial or business information that is not pertinent to an ongoing investigation. The specific action in question was the request of the FBI and DHS for the account information for users of an Internet service provider.

Citing possible secrecy provisions of the USA PATRIOT Act, the Department of Justice prevented the ACLU from releasing the text of a countersuit for three weeks. After judicial and congressional oversight, sections of the counter-suit that did not violate secrecy rules of the USA PATRIOT Act were released.

The lawsuit filed by the ACLU was dropped on October 27, 2006. ACLU stated it is withdrawing the lawsuit because of improvements to the law. "While the reauthorized Patriot Act is far from perfect, we succeeded in stemming the damage from some of the Bush administration's most reckless policies," said Ann Beeson, associate legal director of the ACLU.

See also

Related Research Articles

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<span class="mw-page-title-main">Patriot Act</span> 2001 United States anti-terrorism law

The USA PATRIOT Act was a landmark Act of the United States Congress, signed into law by President George W. Bush. The formal name of the statute is the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, and the commonly used short name is a contrived acronym that is embedded in the name set forth in the statute.

American Civil Liberties Union v. Ashcroft is a lawsuit filed on behalf of a formerly unknown Internet Service Provider (ISP) company under the pseudonym John Doe, Inc. by the American Civil Liberties Union against the U.S. federal government, by the Department of Justice under former U.S. Attorney General John Ashcroft.

The USA PATRIOT Act was passed by the United States Congress in 2001 as a response to the September 11, 2001 attacks. It has ten titles, each containing numerous sections. Title II: Enhanced Surveillance Procedures granted increased powers of surveillance to various government agencies and bodies. This title has 25 sections, with one of the sections containing a sunset clause which sets an expiration date, December 31, 2005, for most of the title's provisions. This was extended twice: on December 22, 2005 the sunset clause expiration date was extended to February 3, 2006 and on February 2 of the same year it was again extended, this time to March 10.

<span class="mw-page-title-main">NSA warrantless surveillance (2001–2007)</span> Part of Terrorist Surveillance Program

NSA warrantless surveillance — also commonly referred to as "warrantless-wiretapping" or "-wiretaps" — was the surveillance of persons within the United States, including U.S. citizens, during the collection of notionally foreign intelligence by the National Security Agency (NSA) as part of the Terrorist Surveillance Program. In late 2001, the NSA was authorized to monitor, without obtaining a FISA warrant, phone calls, Internet activities, text messages and other forms of communication involving any party believed by the NSA to be outside the U.S., even if the other end of the communication lays within the U.S.

Title V: Removing obstacles to investigating terrorism is the fifth of ten titles which comprise the USA PATRIOT Act, an anti-terrorism bill passed in the United States after the September 11, 2001 attacks. It contains 8 sections regarding the capture and prosecution of terrorists.

<span class="mw-page-title-main">Section summary of Title II of the Patriot Act</span>

The following is a section summary of the USA PATRIOT Act, Title II. The USA PATRIOT Act was passed by the United States Congress in 2001 as a response to the September 11, 2001 attacks. Title II: Enhanced Surveillance Procedures gave increased powers of surveillance to various government agencies and bodies. This title has 25 sections, with one of the sections containing a sunset clause which sets an expiration date, of 31 December 2005, for most of the title's provisions. On 22 December 2005, the sunset clause expiration date was extended to 3 February 2006.

<span class="mw-page-title-main">Terrorist Surveillance Program</span> NSA program

The Terrorist Surveillance Program was an electronic surveillance program implemented by the National Security Agency (NSA) of the United States in the wake of the September 11, 2001 attacks. It was part of the President's Surveillance Program, which was in turn conducted under the overall umbrella of the War on Terrorism. The NSA, a signals intelligence agency, implemented the program to intercept al Qaeda communications overseas where at least one party is not a U.S. person. In 2005, The New York Times disclosed that technical glitches resulted in some of the intercepts including communications which were "purely domestic" in nature, igniting the NSA warrantless surveillance controversy. Later works, such as James Bamford's The Shadow Factory, described how the nature of the domestic surveillance was much, much more widespread than initially disclosed. In a 2011 New Yorker article, former NSA employee Bill Binney said that his colleagues told him that the NSA had begun storing billing and phone records from "everyone in the country."

<span class="mw-page-title-main">National security letter</span> US government administrative subpoena

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<span class="mw-page-title-main">MAINWAY</span> NSA database of US telephone calls

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Warrantless searches are searches and seizures conducted without court-issued search warrants.

<span class="mw-page-title-main">History of the Patriot Act</span>

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<span class="mw-page-title-main">Mass surveillance in the United States</span>

The practice of mass surveillance in the United States dates back to wartime monitoring and censorship of international communications from, to, or which passed through the United States. After the First and Second World Wars, mass surveillance continued throughout the Cold War period, via programs such as the Black Chamber and Project SHAMROCK. The formation and growth of federal law-enforcement and intelligence agencies such as the FBI, CIA, and NSA institutionalized surveillance used to also silence political dissent, as evidenced by COINTELPRO projects which targeted various organizations and individuals. During the Civil Rights Movement era, many individuals put under surveillance orders were first labelled as integrationists, then deemed subversive, and sometimes suspected to be supportive of the communist model of the United States' rival at the time, the Soviet Union. Other targeted individuals and groups included Native American activists, African American and Chicano liberation movement activists, and anti-war protesters.

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<i>Klayman v. Obama</i> American federal court case

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<span class="mw-page-title-main">Barack Obama on mass surveillance</span> Overview of the statements of former U.S. president Barack Obama on mass surveillance

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<i>American Civil Liberties Union v. Clapper</i> American federal court case

American Civil Liberties Union v. Clapper, 785 F.3d 787, was a lawsuit by the American Civil Liberties Union (ACLU) and its affiliate, the New York Civil Liberties Union, against the United States federal government as represented by then-Director of National Intelligence James Clapper. The ACLU challenged the legality and constitutionality of the National Security Agency's (NSA) bulk phone metadata collection program.

<span class="mw-page-title-main">Litigation over global surveillance</span>

Litigation over global surveillance has occurred in multiple jurisdictions since the global surveillance disclosures of 2013.

In Re Electronic Privacy Information Center, 134 S.Ct. 638 (2013), was a direct petition to the Supreme Court of the United States regarding the National Security Agency's (NSA) telephony metadata collection program. On July 8, 2013, the Electronic Privacy Information Center (EPIC) filed a petition for a writ of mandamus and prohibition, or a writ of certiorari, to vacate an order of the Foreign Intelligence Surveillance Court (FISC) in which the court compelled Verizon to produce telephony metadata records from all of its subscribers' calls and deliver those records to the NSA. On November 18, 2013, the Supreme Court denied EPIC's petition.

References

  1. ↑ Plan for Replacing Certain United States Attorneys Archived July 8, 2008, at the Wayback Machine . Attached to email from Kyle Sampson to William W. Mercer, December 5, 2006.
  2. 1 2 Marisa Taylor and Greg Gordon (2007-01-26). "New U.S. attorneys come from Bush's inner circle". McClatchy Newspapers. Archived from the original on 2007-09-27.
  3. ↑ Johnston, David (2007-02-25). "Reviews of 6 fired attorneys positive". The Washington Post. Archived from the original on 2007-10-15. Retrieved 2006-03-07.
  4. ↑ David C. Iglesias (2007-03-21). "Why I was Fired". The New York Times.
  5. ↑ David Johnson and Carl Hulse (2007-03-27). "Aide to Gonzalez Won't Testify About Dismissals". The New York Times.
  6. ↑ A bill to amend chapter 35 of title 28, United States Code, to preserve the independence of United States attorneys. Archived 2016-01-13 at the Wayback Machine (S.214 & H.R.580) THOMAS (Library of Congress). Retrieved June 20, 2007.)
  7. ↑ Eggen, Dan (June 17, 2007). "In U.S. Attorney's Offices, Help Wanted: Justice Dept. Seeking Replacements for Departing Temporary Prosecutors". Washington Post. pp. A04. Retrieved 2007-06-17.
  8. ↑ SG1Archive.com
  9. ↑ Lichtblau, Eric (September 28, 2003). "U.S. Uses Terror Law to Pursue Crimes From Drugs to Swindling". The New York Times.
  10. ↑ Business Week November 2005 Archived 2008-07-25 at the Wayback Machine
  11. ↑ Regan, Tom (June 16, 2005). "House votes to repeal part of USA Patriot Act". The Christian Science Monitor . Archived from the original on 2005-06-17.
  12. ↑ "CAE Defense Fund". Archived from the original on 2005-02-12. Retrieved 2005-11-02.
  13. ↑ Common Dreams.org Archived 2006-03-22 at the Wayback Machine
  14. ↑ Register Guard [ dead link ]
  15. ↑ US court opinion and order Archived 2011-08-12 at the Wayback Machine
  16. ↑ Denson, Bryan (December 10, 2009). "Federal court rules Oregon attorney Brandon Mayfield can't challenge Patriot Act". The Oregonian .
  17. ↑ Rasch, Mark (29 September 2003). "FBI bypasses First Amendment to nail a hacker". The Register .
  18. ↑ Shachtman, Noah (September 22, 2003). "FBI Seeking Reporters' Notes". Wired .
  19. ↑ Yost, Pete (8 October 2003). "FBI says it regrets letter to reporter, asks for voluntary cooperation". USA Today . Associated Press.
  20. ↑ Dan Eggen, "FBI Papers Indicate Intelligence Violations Secret Surveillance Lacked Oversight", The Washington Post, 23 October 2005
  21. ↑ Barton Gellman (24 December 2013). "Edward Snowden, after months of NSA revelations, says his mission's accomplished". The Washington Post. Retrieved 25 December 2013. Taken together, the revelations have brought to light a global surveillance system...
  22. ↑ Greenwald, Glenn (6 June 2013). "NSA collecting phone records of millions of Verizon customers daily". The Guardian. Retrieved August 16, 2013. Exclusive: Top secret court order requiring Verizon to hand over all call data shows scale of domestic surveillance under Obama
  23. ↑ Klaymann, Larry (10 June 2013). "Verizon Complaint aka Klaymann et al v. Obama et al in Civil Action No.: 1:13-cv-00851 in the United States District Court for the District of Columbia" (PDF). Freedom Watch. Retrieved 25 February 2014.
  24. 1 2 Klayman, Larry (11 June 2013). "Prism Complaint aka Klayman et al v. Obama et all" (PDF). Freedom Watch. Retrieved 25 February 2014.
  25. 1 2 Leon, Richard (December 16, 2013). "Federal judge rules NSA program is likely unconstitutional a.k.a. Klayman et al. v. Obama et al. Memorandum and Opinion from December 16, 2013 in Civil Action 13-0851 in United Case District Court for the District of Columbia". The Washington Post. Archived from the original on August 30, 2017. Retrieved December 17, 2013.
  26. ↑ "U.S. NSA domestic phone spying program illegal: appeals court". Reuters. 7 May 2015.
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