Chapter Four
The PATRIOT Act and the Fourth Amendment

The law enforcement officials charged with preventing another terrorist attack on America face a daunting challenge. Terrorists have the element of surprise: It is likely that there will be little or no prior warning of when, where, or how the next attack will occur. Guarding U.S. targets against terrorist attacks is, therefore, very difficult. Rather than trying to protect every possible target, one of America's primary strategies in preventing terrorism is to identify terrorists and learn of their plans before they are carried out.

To do this, law enforcement and intelligence agencies such as the FBI and CIA use a variety of surveillance and search techniques. In addition to having law enforcement agents follow and monitor suspected terrorists and perform physical searches of their homes or headquarters, these agencies may tap phones, monitor Internet use and e-mail, use electronic eavesdropping devices, and inspect suspects' financial, credit card, student, employment, and other records.

Law enforcement's authority to employ these search and surveillance techniques is restricted by the U.S. Constitution's Fourth Amendment, which states that

the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Modern courts interpret this to mean that law enforcement agencies must normally obtain warrants to conduct searches. To obtain warrants, law enforcement agents must usually demonstrate "probable cause" to a judge—that is, show that they have reasonable grounds for suspecting an individual of committing a crime. As the Center for Constitutional Rights (CCR) explains, "The Fourth Amendment ensures that law enforcement agencies and officers do not act maliciously or conduct investigations where no credible evidence of wrongdoing exists."⁷³

The Wall Between Intelligence Gathering and Law Enforcement

These Fourth Amendment protections apply to almost all criminal investigations conducted by law enforcement agencies, from local police departments to the FBI. However, intelligence investigations aimed at deterring espionage and other activities—including terrorism—are different. As the Wall Street Journal's Brendan Miniter explains,

Intelligence investigations … don't have these civil liberty protections. Investigators need only show evidence that a person may be involved in gathering information for a "foreign power," which includes al Qaeda. And search warrants are much broader for intelligence investigations, which allow agents to search homes or businesses or use wire taps, read e-mail and regular mail for months. And there is no natural check on this power, even the target of an investigation is often blissfully unaware of snooping federal agents.⁷⁴

The key difference is that spying has historically been justified as a tool of national security rather than law enforcement, to be used against "foreign powers" rather than ordinary citizens.

In the 1960s and 1970s, a series of journalistic and congressional investigations revealed that since the 1950s the government had abused its intelligence operations, using the CIA, FBI, and other agencies to spy on organizations and individuals—such as Martin Luther King Jr. and Vietnam War protesters—that, though controversial, were clearly not agents of foreign governments. In 1978, in an attempt to curb Fourth Amendment violations that had occurred in the name of counterespionage, Congress passed the Foreign Intelligence Surveillance Act (FISA).

FISA, along with several other reforms of the 1960s and 1970s, established a "wall" between intelligence gathering and law enforcement. The CIA was prohibited from engaging in domestic counterintelligence operations, and a legal framework was developed to govern how the FBI would conduct them instead. FISA banned warrantless searches of individuals suspected of being agents of foreign powers (according to the law, a "group engaged in international terrorism" is considered a "foreign power"). Instead, searches have to be approved by the Foreign Intelligence Surveillance Court (FISC), a secret court established by FISA. As long as the primary purpose of a search is to gather intelligence on foreign powers and their agents, then FISC allows the FBI to ignore many Fourth Amendment restrictions, such as having to show probable cause. But the FBI is largely prohibited from using evidence gathered in intelligence cases to prosecute criminal cases, and when intelligence and criminal investigations overlap, they come under severe scrutiny from FISC. Investigations of suspected terrorists often fit this category.

The Origins of the Foreign Intelligence Surveillance Act

In the following excerpt from its September 2003 report "Assessing the New Normal: Liberty and Security for the Post–September 11 United States," the Lawyers Committee for Human Rights explains the circumstances behind the enactment of the Foreign Intelligence Surveillance Act (FISA), which regulates the government's authority to conduct domestic intelligence operations.

"FISA was one of the reform measures adopted in response to a 1976 report by the U.S. Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (the Church Committee). The report revealed that on the premise of 'national security,' U.S. intelligence agencies had been carrying out illegal surveillance of domestic organizations, collecting 'vast amounts of information about the intimate details of citizens' lives and about their participation in legal and peaceful political activities.' Although the targets of this surveillance were primarily antiwar protesters and civil rights activists (including Dr. Martin Luther King, Jr.), they spanned a broad spectrum of groups, including the Women's Liberation Movement, the John Birch Society, and the American Christian Action Council.

The Church Committee determined that such abuses were an inevitable outgrowth of the executive branch's 'excessive' power over intelligence activities, which, until then, had been largely exempted from the normal system of checks and balances. This problem had its roots in the mid 1930s [and] … grew substantially during the Cold War and during the civil unrest of the 1960s and 1970s. In the latter period, secret surveillance techniques that had been used against suspected Communist agents began to be applied against a wide range of domestic groups advocating for peaceful societal change, groups with no suspected connection to a foreign power. The Church Committee warned that the 'system for controlling intelligence must be brought back within the constitutional scheme,' emphasizing that 'unless new and tighter controls are established by legislation, domestic intelligence activities threaten to undermine our democratic society and fundamentally alter its nature.'"

Tearing Down the Wall

Many civil libertarians say that the wall between intelligence gathering and law enforcement is necessary to prevent the government from spying on Americans, as it did in the 1960s and 1970s. But many government officials argue that the wall has hindered counterterrorism efforts and was a major factor in the FBI's failure to prevent the September 11 attacks. The most notable case is that of Zacaria Moussaoui, an al-Qaeda agent who aided the September 11 hijackers while they were in the United States. Prior to September 11, some government agents were suspicious of Moussaoui because he had attended a flight school where he inquired whether cockpit doors could be opened during flight and because he had spent time in Pakistan, where al-Qaeda recruits many operatives. But because the FBI could not demonstrate probable cause, it could not obtain a warrant to search Moussaoui's computer or tap his phone. "Consequently," writes Mark Reibling, author of a book on FBI-CIA relations, "the FBI lost its best chance to learn of Moussaoui's links to the other September 11 conspirators before they could strike."⁷⁵

Inquiries into the government's counterterrorism efforts before September 11 have revealed other instances in which the CIA, FBI, and other agencies failed to share critical information with one another, in part because of the many rules against doing so. Weeks after the attacks, Attorney General John Ashcroft asserted that "tearing down the wall between intelligence and criminal information is one of the most important steps we will make or we will be able to take."⁷⁶

Many parts of the USA PATRIOT Act are aimed at reducing the wall by expanding the FBI's FISA powers. For example, section 218 of the USA PATRIOT Act authorizes FBI agents to obtain search warrants without probable cause in investigations where intelligence gathering is a significant purpose of the investigation rather than the primary purpose, as originally stated in FISA. According to Robert Levy of the libertarian Cato Institute, "This is not a trivial change. It means easier government access to personal and business records, and relaxed authorization of surveillance and wiretaps."⁷⁷

Section 218 is just one of many parts of the USA PATRIOT Act that homeland security officials and civil libertarians are divided over. Ashcroft says that section 218 "makes the utilization of wiretaps against terrorists much more workable and will facilitate greater coordination between law enforcement and the intelligence side of our investigative resources."⁷⁸ But civil libertarians argue that section 218 undercuts one of the original purposes of FISA, which was to prevent FBI officials from too easily sidestepping the Fourth Amendment's probable cause requirement.

The wall is further lowered by section 203 of the USA PATRIOT Act, which makes it easier for the FBI, CIA, and other agencies to share information obtained in both criminal and intelligence investigations. Again, FISA had specifically made it illegal for evidence gathered through intelligence operations—evidence gathered without adherence to Fourth Amendment restrictions—to be used in criminal cases. Nancy Chang of the Center for Constitutional Rights objects most to the fact that this sharing of information is not subject to judicial oversight: "While some additional sharing of information between agencies is undoubtedly appropriate given the nature of the terrorist threats we face," she writes, "the Act fails to protect us from the dangers posed to our political freedoms and our privacy when sensitive personal information is widely shared without court supervision."⁷⁹

Secret Searches, Lack of Oversight

Section 213 of the USA PATRIOT Act empowers federal agents to conduct "sneak-and-peek" searches—covert searches of a person's home or office that are conducted without notifying the person until well after the search has been completed. FISA had authorized sneak-and-peek warrants in certain types of intelligence investigations, but the USA PATRIOT Act allows such warrants to be issued in any criminal investigation, even those that have nothing to do with terrorism. Critics argue that this provision is far too broad. According to Slate.com editors Dahlia Lithwick and Julia Turner,

The parts of the PATRIOT Act that rankle most are those provisions that sweep normal criminal law enforcement under the looser procedural standards for fighting terror. It's important that the state be able to fight terror. No one disputes this. But it's equally important that the state not use the war on terror to gut the warrant requirement.⁸⁰

Bills have been introduced in Congress that would amend section 213 to implement more specific standards for when sneak-and-peek searches are justified.

Another type of secret search is authorized by section 215 of the USA PATRIOT Act, which grants federal agents the power to require third parties to turn over individuals' personal information without their knowledge or consent. For example, under section 215 the FBI could request a person's financial records from a bank, medical records from a doctor, or even a list of books that the person has checked out from a library. In addition, it would be illegal for the bank, doctor, or library to tell the individual in question about the search. (Some libraries have stopped keeping permanent records in order to protest this part of the act.) As with sneak-and-peek searches, FISA had already granted this power to FBI agents in special circumstances, but section 215 allows agents to access personal records as long as a senior-level Department of Justice official certifies that such an action will protect against international terrorism.

Under section 215, applications to gain access to personal records must be made to an FISC judge, but under the terms of the USA PATRIOT Act the judge has little authority to deny the FBI request. To civil libertarians, this is by far the most objectionable part of section 215. The purpose of search warrants is to include the courts in law enforcement, so that judges can ensure that police and FBI agents do not abuse their search powers.

Judicial Oversight of Law Enforcement Authorities

Civil libertarians argue that one of the most alarming aspects of the USA PATRIOT Act is that it shifts the system of checks and balances on which the U.S. government is built. As noted in the ACLU's report Insatiable Appetite: The Government's Demand for New and Unnecessary Powers After September 11, several parts of the USA PATRIOT Act empower the executive branch of government and weaken the judicial branch by removing judicial oversight from the law enforcement procedures.

"Both the USA PATRIOT Act and the subsequent executive actions undermine the role of the judiciary in overseeing the exercise of executive authority. The Act essentially codifies a series of short cuts for government agents. Under many of its provisions, a judge exercises no review function whatsoever; the court must issue an order granting access to sensitive information upon mere certification by a government official. The Act reflects a distrust of the judiciary as an independent safeguard against abuse of executive authority. This trend is particularly apparent in the electronic surveillance provisions of the Act. For example, the USA PATRIOT Act subjects surveillance of Internet communications to a minimal standard of review. This surveillance would reveal the persons with whom one corresponded by e-mail and the websites one visited. Law enforcement agents may access this information by merely certifying that the information is relevant to an ongoing investigation. The court must accept the law enforcement certification; the judge must issue the order even if he or she finds the certification factually unpersuasive.…

These initiatives misunderstand the role of the judiciary in our constitutional system. They treat the courts as an inconvenient obstacle to executive action rather than an essential instrument of accountability."

Yet another provision of the USA PATRIOT Act, section 505, empowers the attorney general to order an individual to turn over personal records, including telephone logs, e-mails, and financial records. Before the USA PATRIOT Act, the attorney general had to have reasonable suspicion that the target individual was engaged in espionage to subpoena records in this manner, but under the USA PATRIOT Act the attorney general can use this power on anyone, without judicial oversight. Lithwick and Turner write that this power "is actually a good deal scarier than [section] 2153 … because there is no check on the attorney general's discretion."⁸¹

Justification for the New Powers

Critics of the USA PATRIOT Act point out that it was passed less than seven weeks after the September 11 attacks. In congressional terms, this is relatively fast, and critics say that some of the more worrisome parts of the act are due to the haste with which it was debated. Partially easing their concerns is the fact that many parts of the USA PATRIOT Act are temporary measures: Sections 215, 218, and 505 are set to expire in October 2005. However, section 213, which authorizes sneak-and-peek searches, and part of section 203, which eases restrictions on the sharing of intelligence information among federal agencies, are permanent.

Attorney General Ashcroft and President Bush have indicated that they want to extend the powers set to expire, and add new ones, by passing the Domestic Security Enhancement Act, often referred to as "PATRIOT II." Speaking before the FBI Academy in September 2003, Bush said that "the PATRIOT Act imposed tough new penalties on terrorists and those who support them. But as the fight against terrorists progressed, we have found areas where more help is required."⁸²

In August 2003, Attorney General Ashcroft embarked on a nationwide speaking tour to explain how the USA PATRIOT Act has benefited law enforcement. "The Patriot Act gave agencies like the FBI and the CIA the ability to integrate their capabilities," he said in one speech. "It gave government the ability to 'connect the dots,' revealing the shadowy terrorist network in our midst."⁸³ The Bush administration also set up a website, www.lifeandliberty.gov, that seeks to dispel some of the concerns about the act.

There are many parts of the USA PATRIOT Act that empower law enforcement without raising serious civil liberties concerns. Section 219, for example, allows federal judges to issue nationwide search warrants in terrorism investigations, whereas previously federal agents had to expend precious time petitioning multiple judges in multiple districts for warrants. Other important provisions of the act clarify how 1970s-era regulations about wiretaps apply to the Internet.

Many Americans, in fact, support the USA PATRIOT Act. David Yepsen of the Des Moines Register maintains that "most Americans support the act because they understand that a nation must take special measures to survive in wartime. Had the act been in place prior to Sept. 11, the tragic events of that day might have been prevented."⁸⁴ And Richard Lowry of the New York Post charges that civil libertarians who attack the USA PATRIOT Act have "forgotten the importance of aggressive, preemptive law enforcement."⁸⁵

An Ongoing Debate

But taken together, the USA PATRIOT Act's easing of Fourth Amendment search warrant restrictions, the sharing of intelligence information between the FBI and the CIA, and the lack of judicial oversight alarm privacy advocates and government watchdog groups. "To an unprecedented degree," writes Chang, "the Act sacrifices our political freedoms in the name of national security and upsets the democratic values that define our nation by consolidating vast new powers in the executive branch of government."⁸⁶

Search and surveillance powers are the most powerful weapons the government has in the war on terrorism; they are also potentially grave threats to individual privacy and the rights enshrined in the Fourth Amendment. With some provisions of the USA PATRIOT Act set to expire in 2005 and with "PATRIOT II" on the horizon, clearly the debate over federal agents' expanded powers is far from over. Echoing the feeling of many Americans who feel ambivalent about the expanded search powers, former assistant attorney general Viet Dinh has commended the ongoing debate over the USA PATRIOT Act. Likening the war on terrorism to a footrace, Dinh says that the USA PATRIOT Act was passed in the "sprint phase" of the race, but now the United States must settle in for the "marathon phase" and determine what policies are best for the long haul. "Somewhere in this marketplace of ideas, of truths and half-truths, of fact and spin, we get a … picture of what the [Justice] Department should be doing," says Dinh. "The debate is healthy to establish the rules of this continuing path toward safety."⁸⁷