Chapter 13 CIVIL LIBERTIES: Ordered Liberty in America Current Events Focus: The Patriot Act—Security versus Liberty © 2011 Taylor & Francis

The Patriot Act In the aftermath of the terrorist attacks on September 11, 2001 USA Patriot Act (aka Patriot Act) on October 26, 2001 Amended Patriot Act II in 2005. © 2011 Taylor & Francis

The Patriot Act The Acts provide the Executive Branch extra-constitutional powers including: enhanced surveillance authority expands the power of the FBI to monitor personal communications provides intelligence agencies access to financial records in order to track money transfers © 2011 Taylor & Francis

The Patriot Act Furthermore, the Patriot Act seeks to improve coordination between federal, state and local law enforcement agencies. However, political conservatives and liberals alike have criticized the Patriot Act’s expansive powers It sacrifices individual freedoms for the sake of greater security. © 2011 Taylor & Francis

Two Views of the Patriot Act Security First! What About Freedom? © 2011 Taylor & Francis

Security First! Proponents of the Patriot Act point to its effectiveness to protect the United States from future attacks. Even opponents cannot dispute the fact that the United States has not been attacked since its inception. In that time, U.S. intelligence agencies and law enforcement have cooperated with international agencies from a number of other countries to disrupt, capture or kill terrorist cells. In short, there is every indication that the aforementioned provisions in the Patriot Act have worked to protect the United States. © 2011 Taylor & Francis

What About Freedom? Opponents of the Patriot Act identify the expanded authority given to the President But they are more concerned with its larger effect on expanded secrecy provided to unelected officials, specifically the Attorney General and Secretary of Homeland Security. In turn, opponents point to the Acts’ intrusion on the separation of powers given the shift from Legislative superiority to Executive prerogative. Moreover, the Patriot Act establishes military tribunals that may try “enemy combatants” without Constitutional protections including the right to be represented by legal counsel. © 2011 Taylor & Francis

The Legacy of the Patriot Act (2001) and Patriot Act II (2005) Changes in the Appointment of Federal Judgeships: Previously, under the federal code (Title 28, Section 546), if a district U.S. attorney vacancy occurred, it would be filled with a temporary appointee chosen by the Attorney general for a maximum of 120 days. © 2011 Taylor & Francis

The Legacy of the Patriot Act (2001) and Patriot Act II (2005) Changes in the Appointment of Federal Judgeships: After 120 days if no appointment was made, the law prior to the Patriot Act gave the power to appoint an interim U.S. attorney to the federal district court, whose appointee would serve until the President finally got his own nominee confirmed. This violates separation of powers Also, violates checks and balances © 2011 Taylor & Francis

The Legacy of the Patriot Act (2001) and Patriot Act II (2005) Changes in the Appointment of Federal Judgeships: The Patriot Act “remedied this anomaly” by eliminating both the role of the district courts and the 120-day limit on the Attorney General's interim appointments. The interim appointee can now serve until the Senate finally confirms the President's nominee. © 2011 Taylor & Francis

The Legacy of the Patriot Act (2001) and Patriot Act II (2005) However, the House and Senate (by a 94-2 majority) determined this provision in the Patriot Act would likely produce “permanent temporary appointees” and therefore invalidated this provision of the Patriot Act Violates the Fourth Amendment Critics point to expansive powers given to law enforcement through "sneak and peek" provisions that permits law enforcement agencies to “perform a search but delay notification for a period of up to three months” violates the Fourth Amendment protection against unreasonable search and seizures. © 2011 Taylor & Francis

The Legacy of the Patriot Act (2001) and Patriot Act II (2005) The Court has ruled section 213 of the Patriot Act does not provide a blank check for law enforcement or any other government entity to demand information and obtain personal financial records without a court order. © 2011 Taylor & Francis