The Patriot Act

Highlights of The Patriot Act - Department of Justice  (Website)

Also read - The Patriot Act: Key Controversies - below this article

The USA PATRIOT Act

Congress enacted the Patriot Act arming law enforcement with new tools to detect and prevent terrorism: The USA Patriot Act was passed nearly unanimously by the Senate 98-1, and 357-66 in the House, with the support of members from across the political spectrum.

The Act Improves Our Counter-Terrorism Efforts in Several Significant Ways:

1. The Patriot Act allows investigators to use the tools that were already available to investigate organized crime and drug trafficking. Many of the tools the Act provides to law enforcement to fight terrorism have been used for decades to fight organized crime and drug dealers, and have been reviewed and approved by the courts. As Sen. Joe Biden (D-DE) explained during the floor debate about the Act, "the FBI could get a wiretap to investigate the mafia, but they could not get one to investigate terrorists. To put it bluntly, that was crazy! What's good for the mob should be good for terrorists." (Cong. Rec., 10/25/01)

* Allows law enforcement to use surveillance against more crimes of terror. Before the Patriot Act, courts could permit law enforcement to conduct electronic surveillance to investigate many ordinary, non-terrorism crimes, such as drug crimes, mail fraud, and passport fraud. Agents also could obtain wiretaps to investigate some, but not all, of the crimes that terrorists often commit. The Act enabled investigators to gather information when looking into the full range of terrorism-related crimes, including: chemical-weapons offenses, the use of weapons of mass destruction, killing Americans abroad, and terrorism financing.

* Allows federal agents to follow sophisticated terrorists trained to evade detection. For years, law enforcement has been able to use "roving wiretaps" to investigate ordinary crimes, including drug offenses and racketeering. A roving wiretap can be authorized by a federal judge to apply to a particular suspect, rather than a particular phone or communications device. Because international terrorists are sophisticated and trained to thwart surveillance by rapidly changing locations and communication devices such as cell phones, the Act authorized agents to seek court permission to use the same techniques in national security investigations to track terrorists.

* Allows law enforcement to conduct investigations without tipping off terrorists. In some cases if criminals are tipped off too early to an investigation, they might flee, destroy evidence, intimidate or kill witnesses, cut off contact with associates, or take other action to evade arrest. Therefore, federal courts in narrow circumstances long have allowed law enforcement to delay for a limited time when the subject is told that a judicially-approved search warrant has been executed. Notice is always provided, but the reasonable delay gives law enforcement time to identify the criminal's associates, eliminate immediate threats to our communities, and coordinate the arrests of multiple individuals without tipping them off beforehand. These delayed notification search warrants have been used for decades, have proven crucial in drug and organized crime cases, and have been upheld by courts as fully constitutional.

* Allows federal agents to ask a court for an order to obtain business records in national security terrorism cases. Examining business records often provides the key that investigators are looking for to solve a wide range of crimes. Investigators might seek select records from hardware stores or chemical plants, for example, to find out who bought materials to make a bomb, or bank records to see who's sending money to terrorists. Law enforcement authorities have always been able to obtain business records in criminal cases through grand jury subpoenas, and continue to do so in national security cases where appropriate. These records were sought in criminal cases such as the investigation of the Zodiac gunman, where police suspected the gunman was inspired by a Scottish occult poet, and wanted to learn who had checked the poet's books out of the library. In national security cases where use of the grand jury process was not appropriate, investigators previously had limited tools at their disposal to obtain certain business records. Under the Patriot Act, the government can now ask a federal court (the Foreign Intelligence Surveillance Court), if needed to aid an investigation, to order production of the same type of records available through grand jury subpoenas. This federal court, however, can issue these orders only after the government demonstrates the records concerned are sought for an authorized investigation to obtain foreign intelligence information not concerning a U.S. person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a U.S. person is not conducted solely on the basis of activities protected by the First Amendment.

2. The Patriot Act facilitated information sharing and cooperation among government agencies so that they can better "connect the dots." The Act removed the major legal barriers that prevented the law enforcement, intelligence, and national defense communities from talking and coordinating their work to protect the American people and our national security. The government's prevention efforts should not be restricted by boxes on an organizational chart. Now police officers, FBI agents, federal prosecutors and intelligence officials can protect our communities by "connecting the dots" to uncover terrorist plots before they are completed. As Sen. John Edwards (D-N.C.) said about the Patriot Act, "we simply cannot prevail in the battle against terrorism if the right hand of our government has no idea what the left hand is doing" (Press release, 10/26/01)

* Prosecutors and investigators used information shared pursuant to section 218 in investigating the defendants in the so-called “Virginia Jihad” case. This prosecution involved members of the Dar al-Arqam Islamic Center, who trained for jihad in Northern Virginia by participating in paintball and paramilitary training, including eight individuals who traveled to terrorist training camps in Pakistan or Afghanistan between 1999 and 2001. These individuals are associates of a violent Islamic extremist group known as Lashkar-e-Taiba (LET), which operates in Pakistan and Kashmir, and that has ties to the al Qaeda terrorist network. As the result of an investigation that included the use of information obtained through FISA, prosecutors were able to bring charges against these individuals. Six of the defendants have pleaded guilty, and three were convicted in March 2004 of charges including conspiracy to levy war against the United States and conspiracy to provide material support to the Taliban. These nine defendants received sentences ranging from a prison term of four years to life imprisonment.

3. The Patriot Act updated the law to reflect new technologies and new threats. The Act brought the law up to date with current technology, so we no longer have to fight a digital-age battle with antique weapons-legal authorities leftover from the era of rotary telephones. When investigating the murder of Wall Street Journal reporter Daniel Pearl, for example, law enforcement used one of the Act's new authorities to use high-tech means to identify and locate some of the killers.

* Allows law enforcement officials to obtain a search warrant anywhere a terrorist-related activity occurred. Before the Patriot Act, law enforcement personnel were required to obtain a search warrant in the district where they intended to conduct a search. However, modern terrorism investigations often span a number of districts, and officers therefore had to obtain multiple warrants in multiple jurisdictions, creating unnecessary delays. The Act provides that warrants can be obtained in any district in which terrorism-related activities occurred, regardless of where they will be executed. This provision does not change the standards governing the availability of a search warrant, but streamlines the search-warrant process.

* Allows victims of computer hacking to request law enforcement assistance in monitoring the "trespassers" on their computers. This change made the law technology-neutral; it placed electronic trespassers on the same footing as physical trespassers. Now, hacking victims can seek law enforcement assistance to combat hackers, just as burglary victims have been able to invite officers into their homes to catch burglars.

4. The Patriot Act increased the penalties for those who commit terrorist crimes. Americans are threatened as much by the terrorist who pays for a bomb as by the one who pushes the button. That's why the Patriot Act imposed tough new penalties on those who commit and support terrorist operations, both at home and abroad. In particular, the Act:

* Prohibits the harboring of terrorists. The Act created a new offense that prohibits knowingly harboring persons who have committed or are about to commit a variety of terrorist offenses, such as: destruction of aircraft; use of nuclear, chemical, or biological weapons; use of weapons of mass destruction; bombing of government property; sabotage of nuclear facilities; and aircraft piracy.

* Enhanced the inadequate maximum penalties for various crimes likely to be committed by terrorists: including arson, destruction of energy facilities, material support to terrorists and terrorist organizations, and destruction of national-defense materials.

* Enhanced a number of conspiracy penalties, including for arson, killings in federal facilities, attacking communications systems, material support to terrorists, sabotage of nuclear facilities, and interference with flight crew members. Under previous law, many terrorism statutes did not specifically prohibit engaging in conspiracies to commit the underlying offenses. In such cases, the government could only bring prosecutions under the general federal conspiracy provision, which carries a maximum penalty of only five years in prison.

* Punishes terrorist attacks on mass transit systems.

* Punishes bioterrorists.

* Eliminates the statutes of limitations for certain terrorism crimes and lengthens them for other terrorist crimes.


The Patriot Act: Key Controversies

by Larry Abramson and Maria Godoy

The USA Patriot Act seems headed for long-term renewal. Key senators have reached a deal with the White House that allays the civil liberties concerns of some critics of the law.

Passed in the weeks after the Sept. 11 attacks, the law expanded the government's powers in anti-terrorism investigations. Controversial surveillance provisions were set to expire at the end of last year; attempts to re-authorize them long-term were filibustered last December. The compromise reached last week, which has the support of both House Speaker Dennis Hastert and Senate Minority Leader Harry Reid, makes three major changes to the law:

1 - Recipients of court-approved subpoenas for information in terrorism investigations now have the right to challenge a requirement that they refrain from telling anyone. However, recipients must wait a year before challenging the gag order.

2 - The second change concerns recipients of a so-called National Security Letter, which is an administrative subpoena issued by the FBI demanding records. Recipients will no longer be required to tell the FBI the name of any attorney consulted about the letter.

3 - Most libraries -- those that act in traditional roles, such as lending books and providing Internet access -- will not be subject to National Security Letters demanding information about suspected terrorists. However, libraries that act as an Internet Service Provider will still be subject to National Security Letters.


Below, NPR examines the act's most controversial provisions:

Information Sharing

Sec. 203(b) and (d): Allows information from criminal probes to be shared with intelligence agencies and other parts of the government. Expires Dec. 31.

Pro:Supporters say the provisions have greatly enhanced information sharing within the FBI, and with the intelligence community at large.

Con:Critics warn that unrestricted sharing could lead to the development of massive databases about citizens who are not the targets of criminal investigations.

Roving Wiretaps

Sec. 206: Allows one wiretap authorization to cover multiple devices, eliminating the need for separate court authorizations for a suspect's cell phone, PC and Blackberry, for example. Expires Dec. 31.

Pro:The government says roving wiretaps are needed to deal with technologically sophisticated terrorists.

Con:Critics say the language of the act could lead to privacy violations of anyone who comes into casual contact with a suspect.

Access to Records

Sec. 215: Allows easier access to business records in foreign intelligence investigations. Expires Dec. 31.

Pro:The provision allows investigators to obtain books, records, papers, documents and other items sought "in connection with" a terror investigation.

Con:Critics attack the breadth of the provision, saying the law could be used to demand the reading records of library or bookstore patrons.

Foreign Intelligence Wiretaps and Searches
Sec. 218: Lowers the bar for launching foreign intelligence wiretaps and searches. Expires Dec. 31.

Pro:Allows investigators to get a foreign intelligence wiretap or search order, even if they end up bringing criminal charges instead.

Con:Because foreign intelligence probes are conducted in secret, with little oversight, critics say abuses could be difficult to uncover.

“Sneak & Peek” Warrants

Sec. 213: Allows "Sneak and peek" search warrants, which let authorities search a home or business without immediately notifying the target of a probe. Does not expire.

Pro:Supporters say this provision has already allowed investigators to search the houses of drug dealers and other criminals without providing notice that might have jeopardized an investigation.

Con:Critics say the provision allows the use of "sneak and peek" warrants for even minor crimes, not just terror and espionage cases.

Material Support

Sec. 805: Expands the existing ban on giving "material support" to terrorists to include "expert advice or assistance." Does not expire.

Pro:Supporters say it helps cut off the support networks that make terrorism possible.

Con:Critics say the provision could lead to guilt by association.

The 'Lone Wolf' Provision

Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004 allows intelligence investigations of lone terrorists not connected to a foreign nation or organization.
While not part of the Patriot Act, this provision also sunsets on Dec. 31 and is under review. Civil liberties groups say the provision could sweep in protesters and those suspected of involvement in domestic terrorism. Language passed by the Senate Intelligence Committee would make this section permanent.

Information Sharing

Sections 203(b) and 203(d) of the Patriot Act are at the heart of the effort to break down the "wall" that used to separate criminal and intelligence investigations. The Justice Department has frequently blamed the wall for the failure to find and detain Sept. 11 hijackers Nawaf al-Hazmi and Khalid al-Midhar prior to the attacks. CIA agents had information that both men were in the United States and were suspected terrorists, but the FBI says it did not receive that information until August 2001.

U.S. officials also blame the wall for the failure to fully investigate Zacarias Moussaoui, who has since pleaded guilty in connection with the Sept. 11 plot. The government says that existing procedures made investigators afraid of sharing information between the intelligence and criminal sides of the probe. Supporters say these provisions have greatly enhanced information sharing within the FBI, and with the intelligence community at large.

Civil libertarians say the failure to share information was largely a result of incompetence and misunderstanding of the law. They say investigators were always allowed to share grand jury information, which is specifically authorized by this section. They warn that the scope of the Patriot Act language is far too broad and encourages unlimited sharing of information, regardless of the need.

Critics say that investigators should have to explain why information is being shared, and that only information related to terrorism or espionage should be released. They warn that unrestricted sharing could lead to the development of massive databases about innocent citizens.

Roving Wiretaps

The Justice Department has long complained about restrictions that required separate court authorizations for each device used by the target of an investigation, whether it's a computer terminal, a cell phone or a Blackberry. This provision of the Patriot Act specifically allows "roving wiretaps" against suspected spies and terrorists. The government says it has long had this type of flexibility in criminal cases, and that such authority is needed in dealing with technologically sophisticated terrorists.

Surveillance experts point out, however, that criminal wiretaps must "ascertain" whether the person under investigation is going to be using the device before the tap takes place. Civil liberties groups say the language of the Patriot Act could lead to privacy violations of anyone who comes into casual contact with the suspect. They want Congress to require investigators to specify just which device is going to be tapped, or that the suspect be clearly identified, in order to protect the innocent from unwarranted snooping.

Access to Records

Probably the most hotly debated provision of the law, Section 215 has come to be known as the "libraries provision," even though it never mentions libraries or bookstores. Civil liberties groups attack the breadth of this section -- which allows investigators to obtain "any tangible thing (including books, records, papers, documents and other items)," as long as the records are sought "in connection with" a terror investigation.
Library groups said the law could be used to demand the reading records of patrons. But the government points out that the First Amendment activities of Americans are specifically protected by the law. The Justice Department has released previously classified statistics to show the law has never been used against libraries or bookstores. But the act's critics argue that there's no protection against future abuse.

Civil liberties groups have proposed numerous amendments: special protections for libraries and bookstores; a requirement that investigators explain the reason the records are sought; and an end to the "gag rule" that prohibits people who receive a 215 order from talking about it with anyone. The Justice Department has agreed that recipients can consult with an attorney and is open to an amendment that specifies this right. But the government says the controversy over this provision is an overreaction, and that this section merely expands longstanding access to certain business records.

Foreign Intelligence Wiretaps and Searches

Criminal investigators have a high bar to reach when asking for permission to wiretap or search a suspect's home. The bar is lower in counterterror or counterintelligence probes, where investigators must only prove the suspect is an "agent of a foreign power." Previously, investigators had to show that the "primary purpose" of the order was to gather foreign intelligence; the Patriot Act lowered that requirement to a "significant purpose." The government said this change takes away another brick in "the wall" separating criminal and intelligence probes: It allows investigators to get a foreign intelligence wiretap or search order, even though they might end up bringing criminal charges.

Civil liberties groups insist that "the wall" rose up through misunderstandings, and that there was no hard barrier against launching a criminal probe against someone being investigated as a spy or terrorist. They point to a 2002 ruling by the Foreign Intelligence Court of Review that buttresses this point.

But critics say the Patriot Act creates a new risk in Section 218 -- that investigators will too easily use spying and terrorism as an excuse for launching foreign intelligence wiretaps and searches. They point to the fact that the number of intelligence wiretaps now exceeds the number of criminal taps. Since these probes are conducted in secret, with little oversight, abuses could be difficult to uncover. Civil liberties groups say one antidote would be to require that the Justice Department release more information about foreign intelligence investigations.

“Sneak & Peek” Warrants

This section allows for "delayed notice" of search warrants, which means the FBI can search a home or business without immediately notifying the target of the investigation. The Justice Department says this provision has already allowed investigators to search the houses of drug dealers and other criminals without providing notice that might have jeopardized an investigation. Investigators still have to explain why they want to delay notice, and must eventually tell the target about the search.

Critics say that investigators already had the power to conduct secret searches in counterterror and counterespionage probes. The Patriot Act, they say, authorized the use of this technique for any crime, no matter how minor. They say that "sneak and peek" searches should be narrowly limited to cases in which an investigation would be seriously jeopardized by immediate notice. Legislation to cut off funding for such searches passed the House in 2003. However, this provision does not face a sunset as other controversial provisions do, so it may be harder for opponents to amend it.

Material Support

The antiterrorism law passed in 1996, in the aftermath of the Oklahoma City bombing, outlawed providing "material support" to foreign terrorist organizations, and expanded the definition of support to include "personnel" and "training." Section 805 of the Patriot Act extended that ban to "expert advice or assistance."

The Justice Department has said this expansion is critical to cutting off the networks of support that make terrorism possible. But many legal scholars -- and even some judges -- contend the provision is vague. They say it will lead to guilt by association and might criminalize unwitting contact with a terrorist group.

Opponents also argue that it stifles free speech, by raising fears that any charitable contribution could somehow be linked to a terrorist group by the Justice Department, and then construed as "material support." Courts have differed on the constitutionality of these efforts to cut off the "lifeblood" of terrorism. Some have ruled they are unconstitutionally vague, others have upheld these laws. In response, Congress tried to tighten the definitions in the 2004 Intelligence Reform and Terror Prevention Act. But the language in that law is also being challenged in court.