USA PATRIOT Act sec. 213

Legislation

By: U.S. Congress

Date: October 26, 2001

Source: "USA PATRIOT Act sec. 213." U.S. Department of Justice, October 26, 2001.

About the Author: The U.S. Senate and House of Representatives, the two houses of the U.S. Congress that enacted this legislation, form the legislative branch of the U.S. government.

INTRODUCTION

On September 11, 2001, The United States was struck by a series of coordinated terrorist attacks that resulted in the deaths of over three thousand people. The suddenness and the ferocity of the actions created the most calamitous event to have ever taken place on American soil in peacetime. The resulting damage, including the destruction of the World Trade Center in New York, the hijacking and destruction of commercial aircraft, and the significant damage to the Pentagon, was a profoundly disturbing occurrence that called into question the security of American borders. Shortly after the attacks had been carried out, a Middle Eastern Muslim extremist organization, al-Qaeda, headed by Osama bin-Laden, claimed responsibility for the attacks.

In the immediate aftermath of the terrorist attacks, the primary attention of the federal government was directed both to the victims of 9/11 and the determination of whether a further attack might be staged in the aftermath. The Bush administration, supported by the leadership of both the Republican and the Democratic parties in the Senate and the House of Representatives, quickly cast the American response to 9/11 as the commencement of a war on terror. A key issue identified by the American law enforcement community, and one subsequently adopted by American legislators as a basis for the provisions of the Patriot Act, was the quality of domestic intelligence available concerning the actions of potential terrorists operating within the borders of the United States prior to 9/11.

This assertion on the part of law enforcement and national security specialists crystallized into the essential foundation for section 213 of the Patriot Act—that there had been an intelligence gathering failure prior to the 9/11 attacks. Upon this foundation were built the companion notions that the United States must have better intelligence capabilities to ward off any subsequent terrorist attacks and that existing methods by which search warrants are obtained require a streamlining to ensure that in what was now a de facto war, law enforcement agencies are not unduly hindered in their efforts to protect the country.

Section 213 provided a mechanism by which information could be obtained through searches of premises and seizures of property and electronic data without requiring notice of the search to be given to the investigative target until a later time. This power to "sneak a peek" is contrary to the general—but not absolute—principle of American law that the person who is named as the subject of a search warrant be informed of the search in advance of its execution.

The Patriot Act was drafted and tendered for debate by legislators with remarkable speed. The Act was signed into law by President George W. Bush on October 26, 2001, only forty-five days after the 9/11 attacks had been carried out. The Congressional hearings regarding the Act occurred against a backdrop of intense media commentary concerning the extent and the capabilities of groups such as al-Qaeda, one where fact and speculation were often indistinguishable. It is noteworthy that only one senator voted against the passage of the Patriot Act.

PRIMARY SOURCE

USA PATRIOT ACT

Sec. 213. Authority For Delaying Notice Of The Execution Of A Warrant. Section 3103a of title 18, United States Code, is amended—

1. by inserting '(a) IN GENERAL' before 'In addition'; and
2. by adding at the end the following:

(b) DELAY—With respect to the issuance of any warrant or court order under this section, or any other rule of law, to search for and seize any property or material that constitutes evidence of a criminal offense in violation of the laws of the United States, any notice required, or that may be required, to be given may be delayed if—

1. the court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result (as defined in section 2705);
2. the warrant prohibits the seizure of any tangible property, any wire or electronic communication (as defined in section 2510), or, except as expressly provided in chapter 121, any stored wire or electronic information, except where the court finds reasonable necessity for the seizure; and
3. the warrant provides for the giving of such notice within a reasonable period of its execution, which period may thereafter be extended by the court for good cause shown.'

SIGNIFICANCE

Section 213 of the Patriot Act has proven to be the most contentious and the most discussed of the provisions designed to combat the threat to American security manifested by 9/11. It is an aspect of the American legal system that is as important for its symbolism as it may be for the actual impact that the section may have had on the abilities of American law enforcement to better counter terrorism. Numerous opponents of the Patriot Act have advocated that no matter how horrific the results of 9/11, American values regarding the sanctity of the person and their property remain paramount.

On one side of the debate, the figures compiled by the United States Department of Justice in 2005 suggest that the impact upon the day-to-day enjoyment of civil liberties in America since the enactment of section 213 is miniscule. Between October 26, 2001 and January 31, 2005, the Department of Justice made 155 applications to execute a delayed notice (sneak a peek) search warrant. These applications represented less than 0.2 percent of all federal warrant requests.

As with other exigent circumstance cases that existed prior to 9/11, a court's power to withhold notification would turn upon whether evidence might be destroyed prior to the search, whether a witness's life might be at risk, or whether the investigation might be jeopardized. The Justice Department adopted a position that based upon its statistics, the provisions of section 213 have functioned as a codification of existing warrant practices as set out in the Federal Rules of Criminal Procedure, where federal courts have held the power to delay the provision of notice of a search warrant to the target.

The counter argument advanced against the Justice Department position by civil libertarians is multi-pronged. The first centers on the language employed in Section 213. The test for whether the target should be notified as to the existence of the warrant is stated to be that of reasonable cause. The traditional American test for the issuance of a search warrant is that of probable cause; a probability is a significantly higher legal standard than that of the reasonable possibility contemplated by section 213. The critics of section 213 argue that in reducing the legal standard the state has secured an undesirable foothold in the personal liberties of American citizens.

It is also apparent that section 213 was cast more broadly than the other terrorism-specific provisions of the Patriot Act. Section 213 on its face is not restricted to terrorism or national security investigations; it could apply to any federal search warrant application. Unlike most of the other Patriot Act provisions, section 213 was not subject to a sunset clause when signed into law in 2001; sunset clauses are an expiry date built into certain types of legislation that are intended to be short-term in effect.

Congress commenced hearings into the requested reauthorization of the Patriot Act in 2005. The hearings regarding domestic terrorism were significantly colored by the developments of the war in Iraq, which served to reinforce the possibility of terrorist threats from a wide assortment of extremist groups in addition to the impetus behind the Patriot legislation, the alQaeda network. The Bush administration advocated that the Patriot Act must be re-authorized to provide domestic security forces the tools to secure America.

The Congressional hearings were not concluded within the expected time frame in December 2005, when information surfaced regarding a covert wiretap program conducted against American citizens by the National Security Agency (NSA); the NSA had not obtained judicial authority for its wiretaps. This conduct raised collateral questions regarding the integrity of other intelligence-gathering programs, including those permitted pursuant to the Patriot Act. The Act was re-authorized on March 10, 2006.

As a result of the re-authorization process, section 213 was amended to expressly provide that notification concerning a search warrant must be provided within thirty days of the date of execution, unless the court specifically approves a longer period.

Throughout the entirety of the post 9/11 period, an intellectual standoff has developed between those favoring broadened government powers to combat terrorism and those who seek what they characterize as a balance between domestic security and the preservation of personal liberty. The battle is primarily an ideological one, because neither side can point to compelling concrete examples to buttress their position. There have been neither demonstrated affronts to personal liberty through the use of section 213, nor have there been prominent investigative successes that would tend to justify its existence. As of the March 10, 2006 re-authorization, section 213 is a permanent part of the American legal structure, pending some later effort to rescind or amend the Patriot Act.

FURTHER RESOURCES

Books

Bouvard, James. Terrorism and Tyranny: Trampling Freedom, Justice and Peace to Rid the World of Evil. New York: Palgrave Macmillan, 2003.

National Commission on Terrorist Attacks. The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States. New York: W.W. Norton, 2003.

Web sites

City Journal. "The Patriot Act is No Slippery Slope." April 8, 2005. <http://www.city_journal.org/html/ eon_04_08_05hm.html> (accessed May 21, 2006).