The Legality of the USA Patriot Act 2001

Subject: Law
Pages: 10
Words: 2764
Reading time:
11 min
Study level: PhD

Introduction

Background of Study

The USA Patriot Act 2001 was a legislative piece passed by the United States (US) Congress and signed by former president George Bush in 2001 (weeks after the 9/11 attacks). The Patriot Act aimed to improve the quality of government investigations concerning terrorism and money laundering activities. Although the intentions of the act are noble, the rushed manner in which Congress debated it (without regard for its infringement on civil liberties) caused a lot of controversy about its legality. To explain this issue, Warwick (2005) believes Congress passed the act (hurriedly) without paying attention to the effect of its specific provisions on the liberties enjoyed by the American people. This concern highlights several legal issues that surround the law. Examples of notable issues include the information sharing clause, roving wiretaps clause, access to records clause, “sneak and peek” warrants, and material support clause (among others). This paper proposes research to understand the legal arguments and validity questions that inform the existence of these issues in the act. However, this paper does not intend to discuss the entire law, or all the controversies surrounding it; instead, the proposed study only aims to evaluate the legality of the law, viz a viz the provisions outlined by the Severability clause.

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Problem Statement

One argument that surfaces when analyzing the legality of the Patriot Act is the Severability clause. This clause outlines that although a part of a legislative piece may be illegal, or unenforceable, other aspects of the law remain valid (Fontaine 2009). Occasionally, the Severability clause outlines that some legislative pieces contain very sensitive provisions, which, when deemed illegal would invalidate an entire law (Dorsey 2013). The Severability clause has significant ramifications to the Patriot Act because it limits the powers of the Supreme Court in using the constitution (specific clauses on personal liberties) to invalidate the law. Therefore, although the Patriot Act contravenes some civil liberties, it remains valid. Overall, the applicability of the Patriot Act and the contraventions on personal liberties raise important questions regarding the validity and legality of the act. The research aims, questions, and objectives of the proposed research appear below

Research Aim

  • To establish the justification for the enforcement of the Severability clause in the Patriot Act

Research Question

  • Should the Severability clause override all issues surrounding the USA Patriot Act?

Research Objectives

  • To establish the role that the Severability clause plays in supporting contentious clauses in the Patriot Act
  • To find out the extent that the Severability clause affects the role of the Supreme Court in offering legal redress to the issues contained in the Patriot Act
  • To evaluate the justification for enforcing the Severability clause in the Patriot Act

Significance of Study

Understanding the legality of the Patriot Act confers a lot of meaning to how America should perceive new laws that contradict existing laws and liberties. Particularly, this analysis outlines how the public should treat laws that infringe on existing liberties. Indeed, in today’s world of modern and sophisticated terrorism threats, it is increasingly difficult for the state to draw the line between private and public rights. The sophisticated nature of terrorism and its tendency to camouflage within ordinary social rights/activities draws attention to the need to find a balance between private and public rights, and more specifically how the citizenry and the government would accept and enforce such laws. Many lawmakers have used the Severability clause to protect themselves from legal recourse whenever the court finds their laws to be faulty or unconstitutional (Wong 2006). However, there is a need to strike a balance between achieving the purpose of such laws and maintaining their practicality/constitutionality. The proposed study aims to provide direction in this regard by evaluating the contentious issues that exist in the application of the Severability clause.

Literature Review

Many Americans have expressed a broad set of concerns regarding the legality of the Patriot Act (Muller 2008). Many of these concerns emerge from individual liberties. To understand the role played by the Severability clause in exacerbating these concerns, it is important to understand the issues surrounding the contentious act. This section of the paper explores these bases of controversy, as possible issues that undermine the legality of the entire law.

Information Sharing

Section 203 (a) and 203 (b) of the Patriot Act allows the Federal government to obtain information about the criminal activities of suspected terrorists, and share it with other government agencies (Smith & Hung 2009). This provision redefines the boundary that previously existed between criminal and intelligence information because previous legislation did not allow information from both agencies to mix (Muller 2008). However, proponents of this provision fault the existence of criminal and intelligence barriers for failing to arrest terrorist suspects, such as Nawaf al-Hazmi and Khalid al-Midhar (who participated in the 9/11 attacks) (Abramson & Godoy 2014). Moreover, proponents of the same legislation fault the existence of the barrier for the failure of intelligence and criminal agencies to share the information which could have led to the arrest of the 9/11 planners, such as Zacarias Moussaoui (Abramson & Godoy 2014). Supporters of this provision, therefore, highlight increased information sharing between the Federal Bureau of Investigations (FBI) and other intelligence/criminal agencies as an achievement of this provision (Zeljak 2004).

Civil libertarians differ with the above view because they say the enactment of this provision infringes on the privacy rights of innocent Americans (Racklow 2002; Muller 2008). They also express concern regarding the limits of this provision because they say the act is too broad and supports the unlimited sharing of information (Racklow 2002). When asked to express their views regarding the benefits of information sharing between criminal and intelligence agencies, civil libertarians say these agencies have never been restricted from sharing information (Abramson & Godoy 2014). For example, they say both groups of agencies have always had the privilege of sharing grand jury information. Therefore, they believe, incompetence among the agencies led to investigative failures during the 9/11 attacks (Abramson & Godoy 2014).

Roving Wiretaps

Investigative agencies have always complained about the legal restrictions of using information obtained from technology devices, such as cell phones and computers, during prosecutions (for terrorism suspects) (Abramson & Godoy 2014). However, the Patriot Act gave legal support for intelligence agencies to mount wiretaps on suspected terrorists and their accomplices. Abramson & Godoy (2014) say the government has often argued that this provision is necessary for investigating technologically well-informed criminals. However, the existence of this provision contravenes privacy rights for anybody that may innocently interact with any of these suspected terrorists. Based on this concern, proponents of privacy rights say the law should clearly outline the types of technological concerns that are open to tapping (Etzioni 2004). Furthermore, the law should create a clear guideline regarding the profile of suspected Americans that are subject to such provisions. This clarity would protect innocent Americans from “government snoops.”

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Records Access (Libraries Provision)

The records access clause is perhaps the most contentious clause of the Patriot Act. The law allows intelligence agencies to search people’s private records, if they prove a connection between the suspects and terrorism – the kind of records that law enforcers may search is unlimited. This provision has unsettled civil libertarians who believe the government could misuse this provision and demand people’s private records by concealing such searches as “terrorist investigations” (Abramson & Godoy 2014). However, proponents of these searches argue that the contentious law does not infringe on first amendment rights (Racklow 2002). For example, the Justice Department has argued that it has never used the law to retrieve private information for purposes of investigation (Racklow 2002). There is however little assurance that the government would not use the law to infringe on privacy rights, in the future. Surrounding this issue is the concern on freedoms of speech, which the provision entails. For example, after issuing a “215 order” on a person, the government restricts people from discussing any issue concerning the matter under investigation (Abramson & Godoy 2014). Proposed amendments to the laws seek to review this provision and allow suspects to speak to their attorneys.

Foreign Intelligence Wiretaps

Unlike intelligence agencies, criminal agencies do not have the luxury of searching a suspect’s residence for evidence or intelligence information. Interestingly, the Patriot Act has made it easy for intelligence officers to do so if they prove that a suspect works for a foreign power (Racklow 2002). The difference between this provision and the previously existing provision of intelligence and a wiretap exists in semantics. Practically, the Patriot Act lowered the bar for law enforcement officials to search private premises. Before, the law required officers to prove the primary purpose of conducting such searches; however, now, the act only requires officers to prove a “significant purpose” of doing so (Jones 2009). Again, like the information sharing clause, this provision eliminates the barrier that exists between criminal and intelligence investigations. Stated differently, this provision allows government agents to undertake intelligence searches, even when they bring criminal charges.

The provision on intelligence searches and wiretaps raises serious concerns regarding the excesses of section 218 of the Patriot Act (which contains this provision) and its ability to legalize foreign searches and intelligence wiretaps of innocent individuals who may not necessarily be involved in terrorism, or criminal activities (Racklow 2002). This concern exists from the premise that the Patriot Act has increased intelligence searches and taps (intelligence searches have now surpassed criminal searches and wiretaps) (Abramson & Godoy 2014). Moreover, since intelligence officials conduct these wiretaps secretly, there is little evidence to convince the public that the officials would not contravene private liberties enjoyed by Americans. The lack of a known oversight mechanism reinforces this fact.

Material Support

The material support clause of the Patriot Act builds on the provisions of the 1996 antiterrorism law, which prohibited Americans from providing material support to terrorists and their organizations (Van-Bergen 2003). However, the material support clause extended these provisions to include the provision of expert advice and assistance (Van-Bergen 2003). Besides the provision of training and personnel assistance, intelligence officials claim the material support clause is crucial in destabilizing the links that support terrorist networks (Van-Bergen 2003). Unlike other provisions of the Patriot Act, the materials support clause has received criticism from not only civil libertarians, but also practitioners in the justice system (Abramson & Godoy 2014). For example, judges have said the clause is vague and difficult to enforce. They also say the clause may impose criminal charges on innocent Americans who may have unknowingly associated with terrorists and their organizations (Abramson & Godoy 2014). On a civil liberty front, legal practitioners say this clause infringes on the right to free speech (Abramson & Godoy 2014). For example, some pundits say this provision creates fear to charitable organizations, which may unknowingly support terrorist organizations (through an attempt by intelligence officials to construct their support as “material support” to terrorist organizations) (Van-Bergen 2003). Based on this controversy, the courts have also failed to provide clear guidance on the legality of this clause. For example, Abramson & Godoy (2014) say, “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” (p. 4). Comprehensively, the legality of the provisions of the Patriot Act has elicited widespread condemnation regarding its continued impingements on individual liberties. The Severability clause has played an important role in fuelling this debate.

Methodology

Research Design

The proposed study intends to use the exploratory research design. The appropriateness of this design stems from the fact that the research objective aims to extract background information regarding the Patriot Act and analyze the issues behind the application of the Severability clause of the law. The research design would also help to clarify the problems and issues surrounding the Severability clause and establish a detailed analysis of the same. A key advantage of this research design is the improvement of knowledge regarding the subject area (Churchill & Lacobucci 2009). However, its lack of statistical strength would undermine the ability of the proposed research to identify possible conclusions regarding the research topic.

Research Strategy

The proposed research strategy entails the adoption of a non-experimental approach to answering the research question. This means that there would be no manipulation during the collection, analysis, or presentation of findings (Mangal & Mangal 2013). Overall, this strategy would incorporate the analysis of case studies, review of analytical views, and the review of archived information regarding the research topic.

Data Collection

The data collection strategy would be twofold (primary and secondary data collection techniques). The primary data collection method would include surveys (questionnaires) with top executives in civil rights groups and reputable law firms. The surveys would be in-depth and designed to gather first-hand information regarding the controversies surrounding the Severability clause of the Patriot Act. Through the development of a list of basic guideline questions, this strategy would enable the researcher to undertake the surveys desirably and prevent the possibility of deviation from the intended purpose of the study.

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The secondary data collection technique would involve the analysis of second-hand information from other researchers. The main motivation for using the secondary data collection method is its complementary nature to primary data collection techniques. Moreover, it is relatively easier, cheaper, and faster to collect secondary information (compared to primary data). Books and journals would be the main sources of secondary data. However, the proposed research would also include information from law magazines, government publications, university databases, and the likes.

Research Sample

As explained in this paper, the proposed study intends to survey top executives in civil rights organizations and legal firms. In sum, the proposed research intends to survey 15 respondents from both groups of professionals. The research aims to recruit these respondents from four firms (two legal firms and two civil rights organizations). Because of personal connections and the accessibility of some of these respondents, the proposed study also aims to limit the number of respondents from civil rights organizations to six people. Therefore, nine respondents would provide the legal background to the research question. There will be no exclusionary criterion when selecting the respondents. However, the researcher would contact the respondents because of their extensive knowledge of the research area.

Sampling Techniques

The proposed study would use the purposive sampling technique to recruit research participants. This technique recruits respondents, based on the discretion of the researcher (Gerrish & Lacey 2013). Moreover, since this sampling technique is a non-probability sampling technique, it provides the researcher with the ability to interview a specific population sample that is of specific interest to the researcher.

Data Analysis

The proposed research aims to use the coding technique as the main data analysis method. This method works through the transformation of qualitative values into numerical values that the researcher could easily analyze. This strategy would also allow for the quantitative analysis of attitudinal variables. For example, researchers have used this method to code data from questionnaires that use the five-point Likert scale by assigning numeric values as shown below – Strongly agree “5”, agree “4”, Neutral “3”, disagree “2”, and strongly disagree “1”. The codification of the research results would later provide an opportunity for the researcher to apply basic and advanced statistical models to the research.

Ethical Considerations

Using human subjects as the primary source of information confers significant ethical considerations for the research. The main ethical issues for the proposed research include

  • Informed Consent: This provision would allow for the voluntary participation of the research participants. The respondents would therefore participate in the research study based on their own volition. The researcher would therefore not use coercion or trickery to encourage the respondents to participate in the study.
  • Privacy and Confidentiality: The researcher would protect the identity of the respondents by recording their views anonymously. Furthermore, the researcher would let the respondents know that the study would use their views only for academic purposes.
  • Disclosure: Before participating in the study, the researcher would observe the principle of full disclosure by telling the respondents about the risks and benefits of participating in the research. As explained above, the researcher would also explain the nature and purpose of the research to the respondents. This principle would also outline the framework that the respondents would use when they have a concern about the research.

Research Duration

Design and testing of the questionnaire One week
Conducting interviews Two weeks
Compiling questionnaires and data analysis Three weeks
Production of draft analysis One week
Reporting findings Two weeks
Presentation of final research product(s) One week

References

Abramson, L & Godoy, M 2014, The Patriot Act: Key Controversies. Web.

Churchill, G & Lacobucci, D 2009, Marketing Research: Methodological Foundations, Cengage Learning, London.

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Dorsey, T 2013, Statutory Construction and Interpretation: General Principles and Recent Trends; Statutory Structure and Legislative Drafting Conventions; Drafting Federal Grants Statutes; And Tracking Current Federal Legislation and Regulations, The Capitol Net, New York.

Etzioni, A 2004, How Patriotic is the Patriot Act?: Freedom Versus Security in the Age of Terrorism, Routledge, New York.

Fontaine, M 2009, Drafting International Contracts, BRILL, New York.

Gerrish, K & Lacey, A 2013, The Research Process in Nursing, John Wiley & Sons, London.

Jones, B 2009, ‘Librarians Shushed No More: The USA Patriot Act, the Connecticut Four, and Professional Ethics’, Newsletter on Intellectual Freedom, vol. 58. no. 6, pp. 221–223.

Mangal, S & Mangal, S 2013, Research Methodology in Behavioural Sciences, PHI Learning Pvt. Ltd., New Delhi.

Muller, B 2008, ‘Securing the political imagination: Popular culture, the security dispositif and the biometric state’, Security Dialogue, vol. 39. no. 1, pp. 199-220.

Racklow, S 2002, ‘How the USA Patriot Act will permit government infringement upon the privacy of Americans in intelligent investigations’, University of Pennsylvania Law Review, vol. 150. no. 1, pp. 1651-1669.

Smith, C & Hung, L 2009, The Patriot Act: Issues and Controversies, Thomas Publishers, New York.

Van-Bergen, J 2003, ‘In the Absence of Democracy: The Designation and Material Support Provisions of the Anti-Terrorism Laws’, Law Policy & Ethics Journal, vol. 2. no. 1, pp. 107-110.

Warwick, S 2005, ‘Will the academy survive 9/11? Scholarship, security, and United States government policy’, Government Information Quarterly, vol. 22, no. 1, pp. 573-593.

Wong, K 2006, ‘The making of the USA PATRIOT Act I: Legislative Process and Dynamics’, International Journal of the Sociology of Law, vol. 34. no. 3, pp. 179–219.

Zeljak, C 2004, ‘Information resources: The USA Patriot Act’, Problems of post-Communism, vol. 51. no. 1, pp. 63-65.