Civil Liberties in Jeopardy: From the Patriot Act to the Freedom Act

Anna Gyori New York University

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I. Introduction September 11th, 2001 was a defining moment in the history of the United States. The damage that the terrorist attacks inflicted on the population caused emotional, political, and legal responses. The fear that festered after the attack created a tense environment in which many Americans demanded government action against Al Qaeda. Therefore, it was predictable that the president during this time, George W. Bush, took action in the form of war and in the form of legislation. One piece of legislation passed in response to 9/11 was the U.S. Patriot Act which sought to protect Americans from the potential of another attack. The Patriot Act provided the government with extensive and expanded powers of surveillance and detention of terrorism suspects. The provisions included in the Patriot Act were added to make finding, apprehending, and punishing potential terrorists on U.S soil easier. The argument surrounding protection was accepted by most Americans because they lived in fear of another attack. But some other Americans, especially many legal scholars, thought that many of the provisions within the Patriot Act expanded governmental powers beyond what was constitutional. The Act was considered by some to be in breach of the civil liberties provided to American citizens through the Bill of Rights. And as time progressed, more evidence was presented in favor of this argument, specifically in the form of cases litigated under the Patriot Act. In addition to the language of the statute, the actions taken under its provisions became problematic. In 2014, thirteen years after the 9/11 attacks, Edward Snowden leaked thousands of NSA documents. The documents added to the aforementioned narrative of governmental overreach into individual civil liberties under the Patriot Act. Many people were angry at the government because they felt that the Patriot Act allowed government sponsored invasions of privacy. With this heightened tension, the Patriot Act became a political controversy. With a new president and the members of Al Qaeda caught and punished, the government's original arguments rooted in 9/11 seemed out of date. In response to this anger over the revelations of Snowden, President Barack Obama signed the Freedom Act of 2015 into law. The Freedom Act was a revised version of the Patriot Act and Obama claimed it was supposed to “strengthen civil liberty safeguards and provide greater public confidence in these programs, including by prohibiting bulk collection [of data] through the use of Section 215, FISA pen registers, and National 1 Security Letters and by providing the American people with additional transparency measures.” This apparent course correction by President Obama appeared to be an appropriate response to the concerns of many Americans. As time went on, however, it became evident that The Freedom Act only addressed a portion of the debated issues of the Patriot Act. It managed to strike down most of the programs that Snowden revealed. But, it did not address all of the constitutional concerns raised about the contents of the Patriot Act. Although the Freedom Act improved on the Patriot Act, it can still be argued that it includes violations of the First Amendment, the Fourth Amendment, and the Fifth Amendment.

II. The First Amendment In the United States, one of the most cherished constitutional values is the freedom of speech. This freedom is derived from the First Amendment of the Constitution which states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people

1 Obama, B.H. (2015). Statement by the President on the USA FREEDOM Act [Press Release]. Retrieved ​ ​ fromhttps://obamawhitehouse.archives.gov/the-press-office/2015/06/02/statement-president-usa-freedom-act

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2 peaceably to assemble, and to petition the government for a redress of grievances.” The right to freedom of speech grants citizens of the United States the ability to speak and write their opinions without being regulated by the government or having to fear punishment for speaking out. The Patriot Act of 2001 violates this right by allowing private discussions to be surveilled. Private conversations are allowed to be surveilled if the government fears that the discussions are concerning an impending terror attack. In other words, law enforcement agencies may look at emails, cell phone records, or search histories if they can point to any communication that could concern potential terrorist activity. This could mean that innocent conversation, such as those about the devastation of terror attacks on the news, can be accessed because of certain trigger words about terrorism they may include. For instance, research for a paper similar to this one could be flagged and seen as relevant enough to search the writer’s communications. The government could argue that research into this topic shows a potential interest in learning how to circumvent anti-terrorism laws. It is a slippery slope when these types of intrusions into the lives of private citizens are allowed because it is hard to determine if communications are genuinely related to an impending attack. However this potential mistake is not the main issue, it is the constitutionality of listening to private discussions in the first place that is troubling. Intrusions like these can cause citizens to question their right to free speech and can subsequently incite fear. Fear can inhibit individuals from engaging in their right to free speech in the future, thereby 3 infringing upon the First Amendment. The Patriot Act specifically affected the First Amendment by restricting the disclosure of searches, specifically by allowing the government to force telephone and internet companies to hide their data collection for law enforcement from their customers. The document that companies receive informing them of the secrecy required for the data collection is called a National Security Letter. In order to do this, the Patriot Act amended Title 18, § 2709 of the U.S Federal Code to state “no wire or electronic communication service provider that receives a request under subsection (b), or officer, employee, or agent thereof, shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records 4 under this section.” Sometimes referred to as “gag orders,” these limitations on free speech were not addressed in the Freedom Act in 2015. This is a direct breach of the First Amendment because it allows the federal government to restrict speech of individuals and companies, thereby “prohibiting the free exercise” of speech. There have been several cases in relation to this specific provision and its effect on free 5 speech. One case of note is Doe v. Gonzales. Occurring in 2005 as a response to a gag order ​ ​ placed by the federal government on a library employee, the ACLU argued that the the provision was unconstitutional. Despite their initial victory in the Southern District of New York, after 6 appeal to the Second Circuit Court of Appeals, the ACLU’s argument was rejected. This case never reached the Supreme Court and the gag order provision stayed intact. There are many other

2 U.S. Const. amend. I. ​ 3 Hughes, S. S. (2012). US Domestic Surveillance after 9/11: An Analysis of the Chilling Effect on First Amendment Rights in Cases Filed against the Terrorist Surveillance Program. Canadian Journal of Law and ​ Society, 27(03), 399-425. doi:10.1017/s0829320100010577 ​ ​ ​ 4 USA Freedom Act of 2015, Pub. L. No. 114-23, 129 Stat. 268 (2015) 5 U.S. Const. amend. I. 6 United States District Court Southern District of New York. Doe v. Gonzales. 6 Sept. 2007, ​ ​ www.aclu.org/sites/default/files/pdfs/safefree/nsldecision.pdf.

3 cases like this one that ruled the provision as constitutional. Therefore, to this day, some Americans are being ordered to stay silent by the federal government despite there First Amendment right. The reasoning behind these decisions lies in the desire to protect national security. But, it is important to inquire as to how far this concern impedes upon the constitution and the rights guaranteed to U.S. citizens therein before it is considered a sufficient argument.

III. Fourth Amendment Many of the concerns surrounding the constitutionality of the Patriot Act were related to the Fourth Amendment which states “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 7 describing the place to be searched, and the persons or things to be seized.” It was fairly pointed out that the Patriot Act allowed the government to essentially circumvent many of the rights enumerated in the Fourth Amendment. President Obama’s Freedom Act did make some improvements; it restricted the government from being able to conduct bulk searches of multiple individual’s internet browsing histories or telephone call logs from their service providers. This improvement makes searches conducted under the act more individual. These searches are more amenable to the Fourth Amendment because they can be based off individual charges or investigations, instead of gathering information from citizens unrelated to the crimes being investigated. The Freedom Act also amended the Patriot Act to limit the powers of surveillance by restricting the ability of the government to continuously surveil an individual who disposes of or change devices from the device that is listed on their original warrant. These are both steps in the right direction. However, not all of Title II of the Patriot Act was amended in the revisions that resulted in the Freedom Act. This section of the act has perpetuated some of the most egregious violations of the Fourth Amendment. For example, Section 216 allows for a type of surveillance called pen/trap for internet (email and web browsing) which operates by recording all email addresses of incoming and outgoing emails and the browsing history on a specific computer. It is allowed based upon a showing that the information "likely to be obtained" is "relevant to an 8 ongoing criminal investigation. This is direct rewriting of the Fourth Amendment's requirement of probable cause. It significantly reduces the burden required of law enforcement agencies to justify their need for a search or the subject of their search. Additionally, Section 213 states that citizens may not be notified of searches or seizures ordered to be conducted on their property if “the court finds reasonable cause to believe that providing immediate notification of the 9 execution of the warrant may have an adverse result.” Once again this directly violates the Fourth Amendment because it intrinsically allows police to forgo notifying citizens of warrants for searches of their property. And further, it means that the citizens will not be informed of the purpose of the search. Under the Fourth Amendment a search such as this one can be argued as unreasonable due to the citizens lack of knowledge. This type of “secret” search also can be argued to be in violation of the due process clause stipulated in the Fifth and Fourteenth

7 U.S. Const. amend. IV. 8United States of America: Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA Patriot Act), Pub. L. No. 107-56, 115 Stat. 272 (2001) 9 United States of America: Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA Patriot Act), Pub. L. No. 107-56, 115 Stat. 272 (2001)

4 amendments. Notifying citizens is one of the primary elements of due process and if it is not given, the whole process fails, thereby rendering the findings of the search invalid.

IV. Fifth Amendment The Patriot Act was created during a time of fear in which the legislation was considered an emergency solution to potential security threats. Because of this focus on the potential of another attack, those suspected of planning or knowing details of an attack often had their civil liberties violated. The government argued that the imminent threat created circumstances and conditions in which it was appropriate to suspend normal practices that protected these rights. One of the rights affected was the Fifth Amendment right which states that “no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment 10 of a grand jury.” Cases ligated under the Patriot Act have been shown to clearly violate these requirements enumerated in the Fifth Amendment. Jose Padilla, an American citizen, was apprehended at the Chicago O’Hare airport under suspicion of a plan to detonate a bomb on U.S 11 soil. Although he was apprehended in 2002, he was not indicted for any crime until 2005. That means that Padilla was held for three years without a formal indictment. While legally according to the emergency status of the Patriot Act, the constitutionality, or lack thereof, of the action should not be disregarded. Laws may be passed that contradict with the constitution, but they must be struck down instead of supported, like in the case of Padilla. Padilla should not have been imprisoned or “held to answer for a crime” for which he had not been charged. Additionally, the Fifth Amendment 12 states citizens cannot “be deprived of life, liberty, or property, without due process of law.” In Padilla’s case, this principle was also violated. The nature of emergency that a potential terrorist plot indicates, allows the government, under the Patriot Act, to keep suspects from release even if it breaks procedure. For Padilla, this meant that he would not be afforded due process. After his arrest in Chicago, Padilla was taken to New York. An attorney filed a petition in the Southern District of New York to meet with him. Shortly thereafter, Padilla was transferred to a military prison in South Carolina. But the litigation over his detention and rights remained in New York 13 and ultimately in the Second Circuit. Because crimes of terrorism fall under federal jurisdiction, Padilla and others suspected of similar crimes are either held on military bases or in supermax prisons. However, there are a limited number of these facilities in the country and not all suspects live near the proper facilities, which means the accused often have to be moved far away from where they were originally charged. This disruption of legal process makes it unduly difficult for a defendant to obtain the guidance of an attorney because it requires an attorney to be able to travel and practice in both jurisdictions. So if Padilla obtains an attorney in South Carolina, this person must be able to file legal documents in New York. It is unlikely that many attorneys in the area would be able do this since it would require also passing the New York bar. This means that the only other option for Padilla is to continue working with a New York attorney who is able to travel to see him or at least communicate with him by telephone. However, telephone communication is not a proper substitute for in person meetings with clients. Padilla’s difficulties in obtaining and

10 U.S. Const. amend. V. ​ 11 Chemerinsky, E. (2005). Civil Liberties and the War on Terrorism. Washburn Law Journal, 45(1), 1-19 ​ ​ ​ ​ ​ 12 U.S. Const. amend. V. ​ 13 Chemerinsky, E. (2005). Civil Liberties and the War on Terrorism. Washburn Law Journal, 45(1), 1-19 ​ ​ ​ ​

5 maintaining an attorney is a violation of the due process clause of the Fifth Amendment, which makes the charges against him under the Patriot Act unconstitutional. Due process violations have not been resolved through the revision of the Patriot Act under Obama into the Freedom Act.

V. Conclusion The United States was built on the idea of liberty for its people, and the Bill of Rights was written to secure this liberty. The amendments, as enumerated in the Bill of Rights, were meant to ensure that American citizens would be safe from government overreach and that the criminal justice system would be just and equal. While in spirit and written form this may be the case, in practice the government seems to use a selective application of these principles. During times like the aftermath of the 9/11 attack, during which there was rampant fear and a clear and present threat of an imminent attack, it is understandable for the government to desire safety and security. The government seeks to provide the public with security. However, they should do so in a way that does not impinge on the democracy and the constitutional values that democracy rests on. Given this pursuit, the government often uses legislation to provide increased security. After 9/11, President Bush and Congress passed the Patriot Act, which they claimed was the protection the country needed. However, this protection was achieved at the cost of the American people’s civil liberties. To be able to find potential terrorists, this legislation violates the First, Fourth, and Fifth Amendments. Nearly fifteen years after its passage, many citizens began to realize the true extent of these civil rights violations. In an attempt to correct the violation of constitutional values, President Obama passed a revision of the Patriot Act called the Freedom Act. Despite the intention of addressing the public’s concerns regarding their civil liberties, the Freedom Act did not successfully address the concerns of constitutionality that arose from the Patriot Act.