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Lesson 3: Homeland Security: The Concept, the Organization

The Patriot Act of 2001

One of the most controversial acts enacted by Congress in response to the 9/11 attacks was the Patriot Act, passed October 26, 2001. George W. Bush signed the wide-ranging bill into law 45 days after the attack.

The Patriot Act gave the federal government broad new powers to investigate and detain potential terrorists to: (Click on the tabs below.)

facilitate the tracking and gathering of information with new technologies.

The law allowed federal officals greater authority to use a kind of 'secret caller ID,' which can identify the source and destination of calls made to and from a particular telephone. Existing laws allowed such 'trap and trace' orders for phone calls. The new law permitted them for other electronic connections, including e-mail.

permit 'roving surveillance,' or allow observation not limited to a particular place or instrument.

In the past, court orders had allowed surveillance only on telephones or place identified in advance. Since terrorists may change locations often, discard their cell phones after a single use, frequently switch the SIM cards in their cell phones, and repeatedly create and change free e-mail accounts, court orders were often a step behind. The new law permitted investigators to obtain authority to track targets as they moved or switched phones and emails. It also allowed investigators to obtain a court order to examine any "tangible item" rather than just business records. For example, investigators could probe voicemail messages and library records showing who borrowed which books.

increase federal authority for investigation money laundering.

The new law required financial institutions to keep more complete records of the financial activities of suspicious individuals and to allow federal investigators broader access to them. In the aftermath of September 11, federal officials had discovered that hundreds of thousands of dollars had flowed through the financial system to terrorist cells undetected, and they wanted stronger authority to trace this flow of money.

strengthen the authority of border agents to prevent possible terrorists from entering the United States.

The new law gave authorities greater power to detain and deport suspicious individuals and those suspected of supporting them. To signal that these provisions were not aimed at punishing foreigners, the law also provided humanitarian assistance for foreign victims of the September 11 attacks.

define a broader array of activities - terrorist attacks on mass transportation facilities, biological attacks, harboring of terrorists, money laundering to support terrorism, and fraudulent solicitation of money to support terrorism - as federal crimes.

Federal officials were concerned that the ingenuity of terrorists had grown faster than criminal law, and they were intent on creating a broader net to snare terrorists.

allow so-called sneak-and-peek searches, in which investigators can enter homes and facilities and conduct searches without informing those searched until a later time.

Whereas previous law specified that individuals who were searched had to be informed before the search began, federal officials said that giving even a few minutes' notice might disrupt their investigations and tip off members of a terrorist cell. Sneak-and-peek searches, they said, would permit more effective investigations.

expand the government's authority to prosecute computer hackers.

Government officials increasingly worried that terrorists, or even ordinary hackers, would exploit vulnerabilities in the Internet to flood the system with e-mails or damage computer records. With the growing dependence of the world economy on electronic commerce and communication, officials wanted to increase the system's protection against cyberterror attacks and to provide stronger remedies to those hurt by hackers. Such attacks had not occurred on a broad scale at that point, but security analysts warned that the system was vulnerable and that they could occur in the future. Over the next few years, hackers proved them right.

 

(Kettl, 2014, p. 125-126)

At the outset, the Patriot Act caused a great deal of consternation, especially civil libertarian advocates. Many questioned the constitutionality of the Act, generating countless lawsuits and concern from community activists that the law was too broad and many of its provisions were being used against their original intent and in some instances violated or suspended many civil liberties.

Because many of the provisions of the original Act enacted in 2001 were under a “sunset clause,” meaning that once the clear and present danger dissipated, Congress was required to address the Patriot Act again in 2005. The Bush Administration was successful in its arguments that the Act not be altered in such a way to weaken its enforcement measures. In fact, the “revised” Act authorized the imprisonment, for an indefinite period of time, of foreigners suspected of terrorism, without trial or indictment. Despite the years of allegations, accusations, and heated controversy surrounding the passage of the Patriot Act in 2001, most of the more controversial provisions with “sunset” dates which were set to expire on December 31, 2005 were either made permanent under the reauthorization act of 2005 or were given a four-year extension. 

In 2011, the Act was again the subject of congressional scrutiny as many of its provisions were slated to expire.

Shortly after its passage, the Congressional Research Service summarized the law:

The Act gives federal officials greater authority to track and intercept communications, both for law enforcement and foreign intelligence gathering purposes. It vests the Secretary of Treasury with regulatory powers to combat corruption of U.S. financial institutions for foreign money laundering purposes. It seeks to further close out borders to foreign terrorists and to detain and remove those within our borders. It creates new crimes, new penalties, and new procedural efficiencies for use against domestic and international terrorists (Doyle, 2001).

In May of 2011, Congress voted to extend several provisions of the law that would have otherwise expired. These provisions allow investigators to get “roving wiretap” court orders; allow them to follow terrorism suspects who switch phone numbers to different providers; to get orders to seize “any tangible things” relevant to a security investigations, like a business’ customer records; and to get national security wiretap orders to monitor noncitizen suspects who are believed to not be connected to any foreign power.

The Senate voted overwhelmingly in favor of the extension and the House followed hours later on the afternoon the entire Patriot Act was due to expire. In a historic move, President Obama was on an overseas trip and for the first time ever, the president directed the use of an autopen to sign the bill into law.

Outlook

According to critics, homeland security initiatives and legislation have neither made the country safer not protected liberty and freedom. However, legislators have made significant attempts at reconciling those two values (liberty vs. security).

As one example, sneak-and-peak rules had already been revised in the USA Patriot Act Improvement and Reauthorization Act of 2005. A delayed notice requirement was introduced, where suspects must normally be informed about a previously conducted sneak-and-peek search within a “reasonable period not to exceed 30 days.” The most pertinent example however is the USA Freedom Act:

Following a lack of Congressional approval, parts of the Patriot Act expired on June 1, 2015. The Uniting And Strengthening America By Fulfilling Rights And Ensuring Effective Discipline Over Monitoring Act of 2015 (USA Freedom Act) renewed some expired provisions from the Patriot Act through 2019, as well as set limits on mass data collection by the government. Much about the legislative as well as public debate about the USA Freedom Act centered on its expected impact on domestic surveillance, specifically by NSA. The Act largely restricts domestic surveillance and the use of technology for such surveillance to the presence of specific requests. Under the Patriot Act, production of domestic surveillance data would often have been allowable for mere threat assessment. In particular, the Act responded to concerns about NSA surveillance of U.S. persons by putting a halt to the agency’s mass phone data collection program. NSA now requires a federal court permission to receive information about targeted individuals.

The Act also establishes limitations on use of Section 215 of the USA Patriot Act, the particular section emblazing the Snowden debate. According to Section 215, the government may apply for a court order compelling any person or entity to turn over records of data relevant to a foreign intelligence investigation. In 2013, Edward Snowden leaked information about the use of Section 215 to bulk collect telephone metadata that NSA held and that could be queried by foreign intelligence investigators. Under the USA Freedom Act, use of Section 215 of the USA Patriot Act is limited to government data collection based on a “specific selection term” (SST), defined as “a term that specifically identifies a person, account, address, or personal device, or any other specific identifier.”This puts strong constraints on bulk data collection. (Siedschlag, 2017 p. 37)

We will revisit the discussion of security vs. liberty in more detail during lesson 8.

 

References

Doyle, C. (2002). The Patriot Act: A sketch, CRS to Congress. Washington, DC: Library of Congress. Retrieved April 23, 2012 from www.fas.org/irp/crs/RS21203.pdf.

Kettl, D. (2014). System under stress: The challenge to 21st century governance (3rd ed.). Los Angeles, CA: CQPress.

Siedschlag, A. (2017). “Ethical, legal, and social issues in homeland security: what they are and how to address them,” in Martin J. Alperen (ed.), Foundations of homeland security: law and policy. 2nd ed. Hoboken, NJ: Wiley, 2017, pp. 29-54.


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