A sweeping statute
Probably no federal statute in recent memory has generated the reaction both positive and negative that has come from this statute. And that may be because probably no federal statute in the past 25 years has been so significant in setting a new direction for federal investigative, immigration, and law enforcement agencies, as well as federal courts.
In case anyone has forgotten, the USA PATRIOT act actually is an anagram: "Uniting and Strengthening American by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism." Containing more than 120 separate sections and comprising ten Titles, the statute represents a comprehensive revision in many areas of federal law: investigation, surveillance, search and seizure, information sharing, banking and finance, immigration, court jurisdiction, terrorism definitions, statute of limitations for terrorist crimes, and sentencing for terrorist crimes. Introduced just days after the September 11 events, it was approved by Congress in record time and with unprecedented margins for a statute of this complexity--the House vote was 357 to 66, the Senate vote was 98 to 1.
Mobilizing to respond
Reaction to the statute has included sharp criticism of most of its broadest provisions, such as Section 215 which allows federal law enforcement access to "any tangible thing" in investigation of terrorist crimes, and Section 412 which mandates the detention of a foreign national in this country suspected of terrorist crimes and allows that person to be held for seven days without charge or trial. Although the Department of Justice claims that these two sections among others have been utilized rarely or not at all, the Administration has resisted all attempts to modify or eliminate these Sections or any part of the PATRIOT Act.
Major civil liberties or advocacy organizations have mobilized to respond to the PATRIOT Act. These include the Friends Committee on National Legislation, the American Civil Liberties Union, the People for the American Way, the Center for Constitutional Rights, and the Lawyers Committee for Human Rights (now called Human Rights First). Notably, numerous conservative groups have also criticized the statute--for indeed if conservativism is premised on the concepts of limited government and the central importance of personal privacy, the PATRIOT Act is a very un-conservative statute.
Resolutions against the PATRIOT act
Perhaps this wider spectrum of criticism can account for the concern about the statute in mainstream America and the persistence of that concern. To date, there have been more than 300 resolutions against the PATRIOT adopted by State legislatures, county councils, and municipalities around the country. This "resolutions movement" which started as a very localized response to the statute among some small towns in Massachusetts in 2001 and 2002, has grown impressively and continues to gain attention. Nearly a dozen proposals are in Congress to modify the USA PATRIOT Act in one form or another, among them several bills that would among other things, take libraries and bookstores out of the reach of the statute.
The Administration has responded with consistent references to the statute in public pronouncements, support for the statute in Congressional testimony, a mention of the statute in the 2003 State of the Union address, a multi-city tour by Attorney General John Ashcroft to proclaim the importance of the statute, and a special website at the Department of Justice "lifeandliberty.gov" which features frequently asked questions about the PATRIOT Act and attempts to dispel the "myths" about the statute.
Now that the PATRIOT Act has passed its third anniversary, a few things should be mentioned about the statute that take on particular importance as Congress returns to post-election activity and as calendars turn to 2005:
--The PATRIOT Act does not have to be "renewed." The "renewal" of the PATRIOT Act was a theme of President Bush's election campaign, and was specifically mentioned in his comments on the statute in the 2003 State of the Union address. However, the entire statute is permanent, as with any federal law. Rather, certain sections of Title II, the Title containing the search and seizure and investigation provisions (many of them unprecedented), are scheduled to "sunset" or go inactive, on December 31, 2005. What the Administration refers to when it calls for "renewal" of the USA PATRIOT is that Congress should repeal the sunset deadlines for these Title II sections and make the entire statute permanent.
--There is a provision in Title III, which contains a major overhaul of federal banking law directed to investigation into terrorist financing and money laundering, that would allow the entire Title III to be invalidated if Congress passing a joint resolution to do so. That joint resolution can be adopted anytime after October 1, 2005. To date, the Administration has made no mention of that joint resolution and Congress has paid little attention to it. However, those who are concerned about Title II need to be equally concerned about Title III, for its provisions are at least as extensive. The debate in Congress needs to begin now about Title III just as it has gotten well underway about Title II.
--The PATRIOT Act is not the final word on the response by Congress and the White House on September 11. At least a half-dozen other major statutes, several Executive Orders, nine "National Strategy" Administration policy documents, numerous regulations, several new policy guidelines by the FBI, and the recommendations of the 9-11 Commission, all need to be taken into account in assessing the entire range of domestic response to the 9-11 event.
The extent to which the USA PATRIOT Act has made America safer or has improved investigation and prosecution of terrorism, or was necessary in order for federal law enforcement to be more effective in responding to terrorism, remains a matter of sharp debate. Two things should be noted in that respect, although there are many: since the USA PATRIOT Act was passed there has been no arrest of anyone connected with the September 11 event, and the Joint Senate-House intelligence committee report issued July, 2003 on the "failures" of federal law enforcement and investigation agencies related to 9-11 identified issues, problems and administrative difficulties which had nothing to do with and were not truly solved by, the PATRIOT Act.
Whether the Administration will be able to repeat the sunset provisions of the PATRIOT Act is not clear. There is no clear majority in the House or Senate to do that, despite the fact that the Republicans control both houses. The value of the statute in the response to terrorism may need to be left to the judgment of history. Nevertheless, the continued public reaction to it could continue to play a role in how it is utilized.
C. William Michaels is an attorney in Baltimore, Maryland and the author of "No Greater Threat: America After September 11 and the Rise of a National Security State" (Algora, 2002). "No Greater Threat" is the only book containing a review of the entire USA PATRIOT Act.
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