Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism USA PATRIOT Act of 2001 Maryam Pourrabi, Amy Stewart, Kristin Evans, Michael Nocchiero

Prior to the Patriot Act Agenda Formation Pre-9/11

Evolution of Anti-Terrorism Policy 1950s “Guilt by Association” law - associating with Communist or anarchist group can lead to exclusion and deportation - Repealed by Congress in s Reagan Administration - initially proposed provisions that later became apart of the USAPA Bush (I) Administration - made similar proposals >> use of secret evidence, guilt by association law, right of Sec. of State to label groups as terrorist without review, ban on supporting legal activities of terrorist-labeled groups Broad based legislative opposition to such legislation; Congress refused to enact provisions on constitutional grounds and lack of necessity Legislation was headed for defeat until….

Oklahoma City Bombing Bombing of the Federal Building by Tim McVeigh killing 175 people Led to passage of the Anti-Terrorism and Effective Death Penalty Act of 1996 Passed by a 91 to 8 margin in the U.S. Senate Included key provisions to combat terrorism, which is included in USAPA - Illegal to provide expert advice to terrorist groups - Allow the use of secret evidence in terrorism cases - Sec. of State, Sec. of Treasury and the Attorney General can designate groups as terrorist - Resurrected the guilt by association law - Limit habeas corpus - federal courts hear terrorism cases Many provisions were under review until…

September 11, 2001 Gerston - crisis as trigger mechanism Elevated problem of homeland security to public agenda Widespread support - President had 90% approval rating Framed as homeland security issue Legislators could not say no to Act History shows that a trigger is needed to pass homeland security reform 9/11 gave Congress the impetus to pass it USAPA is extension of 1996’s Anti-Terrorism Act and implementation of recommended reforms/provisions

Policy Inception 2001

A Charge from the Bush Administration 9/21/01: Administration sent set of fifty proposals to Congress – Viet Dinh (Assistant Attorney General) – DOJ Proposal went to Senate and House Committees – Deliberations, hearings

The Legislative Process House/Senate Anti-Terrorism Bills – S. 1510: Daschle + 25 – H.R. 2975: Sensenbrenner + 26 Merger of House and Senate Versions – Sensenbrenner introduced H.R in the House 10/23/01 Cosponsor: Oxley

Key Actors Congressman Sensenbrenner (Chairman of the House Judiciary Committee, sponsor of both HR Bills) Congressman Oxley (co-sponsor of HR 3162) Senator Daschle (Senate Majority Leader, sponsor of Senate bill) Senator Leahy (Chairman of the Senate Judiciary Committee)

The Bill in a Nutshell Bolters ability to conduct criminal and intelligence investigations Bar and expel terrorists from the U.S. Separate terrorists from their funding sources Punish acts of terrorism Address needs of 9/11 victims Increases information sharing between law enforcement and intelligence agencies

Complementary Legislation Foreign Intelligence Surveillance Act of 1978 Immigration and Nationality Act Electronic Communications Privacy Act Bank Secrecy Act of 1970

H.R became Public Law House Vote Outcome 357 Yeas (211-R, 145-D, 1-I) 66 Nays (62-D, 3-R, 1-I) 9 Non-votes (5-R, 4-D) Senate Vote Outcome 98 Yeas 1 Nay (Feingold, D-WI) 1 Non-vote (Landrieu, D-LA) And the Yeas Have It

President George W. Bush signs the Patriot Act, Anti-Terrorism Legislation, in the East Room Oct. 26, White House photo by Eric Draper.

USA PATRIOT Act Consensus Unravels

USA PATRIOT Act in Practice Target of investigation does not have to be an agent of a foreign power; investigation cannot be based solely upon activities protected by First Amendment Intelligence collected has to be relevant to terrorism investigation; targets must only be linked to terrorism Increase in intelligence collection: – pen register, trap and trace, permits roving wiretaps – “sneak and peek” allowed – courts authorize warrants for investigations outside jurisdiction Federal National Security Letter (NSL) statutes No mention of Fourth Amendment rights

Civil Liberty Issues Emerge May 2002: Jose Padilla, US citizen, detained as “enemy combatant” August 2002: DoJ Inspector General Report cited 762 illegal aliens detained; 0 charged with terrorism related crimes November 2002: FBI requires Middle Eastern refugee center release information on all Iraqi- born clients

Are American Publics Concerned with Civil Liberties or Terrorism? Source: Adapted from poll conducted for the Associated Press by International Communications Research in September 2003

Impact on Government Drastically increases information collection and resources required for synthesis Significant strain on bureaucracy: – Financial Crimes Enforcement Network (FinCEN) – FBI: “hold until clear” policy Lack of internal consensus on boundaries of PATRIOT Act

Impact on Federal Intelligence Agencies “Lowered… the wall traditionally separating criminal investigation from foreign intelligence gathering.” Shift from criminal investigation to intelligence gathering Broader use of NSL statutes “The FBI is becoming the new CIA.” –FBI Intelligence Analyst

PATRIOT Act Implementation at FBI Source: March 2008 Department of Justice Office of the Inspector General Report, A Review of the Federal Bureau of Investigation’s Use of National Security Letters

Judicial Involvement “Unless made in bad faith” Bars suits against information providers National Security vs. Drugs

The Media “Investigates” New York Times reports warrantless monitoring of international communications in 2005 President Bush admits to authorizing Terrorist Surveillance Program “As long as nothing big happens, the media is uninvolved.” “The media isn’t probing enough.”

The Legislative Debate There hasn’t been another 9/11 vs. proof of effectiveness Hearings in favor of both views through 2003 Intelligence Reform and Terrorism Prevention Act of 2004 USA PATRIOT Improvement and Reauthorization Act of 2005 – 4 Republicans join Democrats in Senate filibuster April-June 2005: 16 different hearings on civil liberty violations to Committees on Judiciary Reauthorized in 2006 Congress has protected civil liberties by rejecting certain legislation

Civil Liberty Interest Group Victories “[NSL] effectiveness is disproportionately small compared with the extent of… the invasion of privacy they represent.” Deputy Director of the Center for National Security Studies Muslim Community Association of Ann Arbor v. Ashcroft John Doe, Inc et al. v. Mukasey et al.

Sunset of the Bush Administration Terrorist Surveillance Program (TSP) expired in 2007 Supreme Court and warrantless surveillance program Protect America Act and FISA Amendments Act of 2008 protect TSP Attorney General Mukasey certifies that defendants’ actions were lawful

“The real question is, ‘Does the PATRIOT Act work?’ There doesn’t seem to be a public case explaining the benefits of the tools the PATRIOT Act provides.” -Michelle Richardson, ACLU Lobbyist

Michael Cover Slide YYYY-YYYY

References Anonymous. FBI Interview. 8 Apr “A report to Congress in accordance with [sect] 357 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.” U.S. Department of Treasury, 26 Apr Web. 7 March “Chart comparing S.1692 and H.R ” Center for Democracy & Technology, 11 Nov Web. 7 March Doyle, Charles. “Terrorism Legislation: Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001.” CRS Report for Congress., 26 Oct Web. 7 March Henning, Anna, Elizabeth Bazan, Charles Doyle, Edward Liu. “Government Collection of Private Information: Background and Issues Related to the USA PATRIOT Act Reauthorization.” Congressional Research Service, 23 Dec Web. 7 March 2010.

Jost, Kenneth. “Civil Liberties Debates.” The CQ Researcher (2003): Web. 7 March “Legislative History of P.L : USA PATRIOT Improvement and Reauthorization Act of 2005.” LexisNexis Academic & Library Solutions. Web. 7 March Robinson, Michelle. ACLU Interview. 1 Apr Uniting and Strengthening American by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act). Public Law Oct Web. 1 March VandeHei, Jim. “Bush Assails Democrats Over Patriot Act.” Washington Post. 4 Jan Web. 7 March 2010.

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