Patriot 2005-2007: Truth, Controversy, and Consequences

I. INTRODUCTION For a number of years this nation was immersed in a Patriot Act1 frenzy driven by conservative and liberal politicians, media, and special interest groups. The frenzy was characterized by sound bites and headlines intended to have an impact on public but which, unfortunately, often did not illuminate facts or actual law enacted by Patriot Act. Politicians and pundits were quick to label Act as either good for America and necessary for national security, or as an unconstitutional infringement on civil liberties,2 consistendy failing to reference or accurately describe exact provisions diat supported their conclusions.3 All of this, of course, took place in a highly charged atmosphere in which very names Patriot, Ashcroft, Gonzales, and Bush brought forth images of right-wing ideologies bent on violating civil liberties to protect national security or increase their personal and partisan control over government. This context, when added to general ignorance of served to dramatically enhance emotion and confusion that dominated debate. It is thus not surprising that one frequendy encounters both citizens and lawyers who sincerely question the Patriot Act, but, when asked which sections bother them most, often refer to completely unrelated components of administration's war on terror. It has been common, for example, to hear complaints that it is improper for Patriot Act to allow government monitoring of communications between an attorney and client. This procedure, however, stems from a 2001 order from Attorney General to Bureau of Prisons entided Monitoring of Attorney-Client Communications of Designated Federal Prisoners,4 is based on a Supreme Court case,5 and is utilized only when parties have been advised that their communications are subject to being monitored.6 Regardless of advisability of order, it is not connected with Patriot Act. Citizens have also responded with references to potential trial of terrorist suspects before military tribunals. These proceedings, however, are based on a 2001 presidential order entided Detention, Treatment, and Trial of Certain NonCitizens in War against Terrorism,7 which in turn relies upon a number of Supreme Court cases,8 and, again, have no connection to Patriot Act. Perhaps of greater concern, as will be detailed at length in this article, is fact that when those who raised serious questions managed to refer to legal concepts that actually are in Patriot such as sneak and peak warrants, searching of business and computer records, or Foreign Intelligence Surveillance Act (FISA),9 their characterizations of statute's provisions, relying as they did on political, media, and special interest sources, was in many cases extremely wide of mark.10 During last two years we have finally witnessed submission of well-formulated legal challenges to Patriot Act's actual provisions in courts and before Congress. These challenges have resulted in initial legal opinions by lower courts as well as amendments to Act itself in USA PATRIOT Improvement and Reaudiorization Act of 2005 (PIRA)11 and USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006 (Patriot Amendments Act).12 Now, tiierefore, is a perfect time to step back and accurately examine most controversial provisions of Act and review what, if anything, has been done to modify those provisions. II. PROVISIONS DESIGNED TO INCREASE COMMUNICATION WITHIN GOVERNMENT During aftermath of September 11th, commentators and politicians proclaimed that reason for success of attacks was because Federal Bureau of Investigation (FBI), whose focus is law enforcement, and Central Intelligence Agency (CIA), whose focus is intelligence, did not communicate with each other.13 If they had communicated, according to these critics, they certainly would have been able to connect dots that stood out in isolated pieces of information known to some government agents but apparently not collected and understood by analysts in one central office. …