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Hijacking Civil Liberties: the USA PATRIOT Act of 2001, 33 Loy Loyola University Chicago Law Journal Volume 33 Article 13 Issue 4 Summer 2002 2002 Hijacking Civil Liberties: The SU A PATRIOT Act of 2001 Jennifer C. Evans Follow this and additional works at: http://lawecommons.luc.edu/luclj Part of the Law Commons Recommended Citation Jennifer C. Evans, Hijacking Civil Liberties: The USA PATRIOT Act of 2001, 33 Loy. U. Chi. L. J. 933 (2002). Available at: http://lawecommons.luc.edu/luclj/vol33/iss4/13 This Comment is brought to you for free and open access by LAW eCommons. It has been accepted for inclusion in Loyola University Chicago Law Journal by an authorized administrator of LAW eCommons. For more information, please contact [email protected]. Comment Hijacking Civil Liberties: The USA PATRIOT Act of 2001 Jennifer C. Evans* I. INTRODUCTION Almost a decade ago on February 26, 1993, six people were killed and over one thousand others were injured when terrorists bombed the World Trade Center in New York City.1 On April 19, 1995, one hundred sixty-eight people, including nineteen children, were killed when a car bomb exploded in front of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma. 2 On August 7, 1998, the bombing of United States embassies in Nairobi, Kenya and Dar es Salaam, Tanzania, killed 225 people. 3 Two years later, on October 12, * J.D. expected May 2003. I would like to thank the members of the Loyola University Chicago Law Journal for their comments and suggestions. To my parents and sister, your support and encouragement mean everything. 1. Diplomatic Security Service, U.S. Department of State, World Trade Center Bombing, at http://www.dssrewards.net/english/wldtrade.html (last modified Jan. 9. 2002). On April 3, 1998, Eyad Ismoil was sentenced to 240 years imprisonment with no hope of parole after being convicted in November 1998 on conspiracy charges for his role in the 1993 World Trade Center bombing. CNN Interactive, Last World Trade Center bombing conspirator sentenced, at http:// www.cnn.comiUS/9804/03/wtc.bombing/ (last modified Apr. 15, 2002). Five other conspirators were given the same 240-year sentence, including Ramzi Yousef, the alleged mastermind of the attack. Id. 2. CNN Interactive. Oklahoma City Tragedy: The Bombing, at http://www.cnn.com/US/OKC/ bombing.html (last modified Feb. 21, 2002). Timothy McVeigh was found guilty of the Oklahoma City federal building bombing. CNN Interactive, The McVeigh Trial: After 28 days of 'overwhelming evidence,' the jury speaks: Guilt', available at http://www.cnn.com/US/9706/ 171McVeigh.overview/ (last visited Mar. 25, 2002). McVeigh was sentenced to death by lethal injection. Id. Terry Nichols was also convicted of the Oklahoma City bombing, sentenced to life imprisonment, and ordered to pay the government $14 million for the damages to the federal building. CNN Interactive, Nichols gets life for Oklahoma Bombing, available at http://www. cnn.com/US/9703/okc.trial/nichols.sentence (last modified Apr. 15, 2002). 3. Jim Fisher-Thompson, U.S. Gives Kenya, Tanzania $46 Million in Bombing Aftermath, United States Information Agency, at http://usinfo.state.gov/topical/pol/terror/9811020l1.htm (last modified Nov. 8, 2000). More than 4,000 Kenyans were injured in the explosions. Id. Twelve Americans were killed in the Kenyan bombing. Id. Loyola University Chicago Law Journal [Vol. 33 2000, a suicide bomber rammed into the side of the Navy destroyer USS Cole, killing seventeen and injuring thirty-eight sailors.4 Finally, on September 11, 2001, terrorists hijacked American Airlines Flights 11 and 77 and United Airlines Flights 175 and 93, creating a new weapon of mass destruction by colliding a plane into each tower of the World Trade Center in New York City, another into the Pentagon in Washington, D.C., and finally crashing one into a field in western Pennsylvania. 5 Approximately 3,225 people were killed on the planes and on the ground.6 These tragedies are only a sample of terrorist attacks affecting United States' interests within the past ten years7 and represent those with the greatest effect on Americans. 8 As a result of such attacks, the United States Congress introduced and enacted responsive and reactionary legislation to enable federal law enforcement agencies to investigate terrorist organizations, large and small, domestic and foreign. 9 This legislation, the USA PATRIOT Act, provides for increased surveillance and the ability to collect intelligence regarding these organizations in order to combat terrorism and protect Americans.' While combating terrorism is a priority, much of this legislation chips away at the constitutionally protected rights of citizens and residents of the United States, including the Fourth Amendment's protection from unreasonable searches and seizures. 11 4. See Howard Schneider & Roberto Suro, Death Toll Put at 17 In USS Cole Blast; Some Doubt Yemenis Will Aid in Probe, WASH. POST, Oct. 14, 2000, at A01, available at 2000 WL 25422178. 5. Charles M. Madigan, 'Our nation saw evil'; Hijackedjets destroy World Trade Center, hit Pentagon, Thousands feared dead in nation's worst terroristattack, CHI. TRIB., Sept. 12, 2001, § 1, at 1, available at 2001 WL 4113876. Officials speculated that Flight 93 was heading for a fourth target in the nation's capital, but due to the heroics of the passengers and its crew, this mission was foiled. U.S. Strikes Afghanistan, WASH. POST, Oct. 8, 2001, at C14, available at 2001 WL 28363099. 6. See Margaret Talbot, The Lives They Lived, 3,225 (At Last Count) Died September 11, 2001, N.Y. TIMES, Dec. 30, 2001, §6, at 16. Initially, it was estimated that over 6,000 people died in the attacks. Id.; see Madigan, supra note 5. 7. See infra note 176 and accompanying text (discussing terrorist incidents on American soil from 1970-1999). 8. See, e.g., United and Strengthening America-Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001). 9. Id. at 276-78. 10. Id. at 278-96. 11. The Fourth Amendment 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 2002] Hijacking Civil Liberties 935 Part II of this Comment begins with an overview of the Fourth Amendment, including a discussion of warrantless searches for purposes of national security. 12 Part II summarizes the history of anti- terrorism legislation, focusing primarily on Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (OCCSSA), the Foreign Intelligence Surveillance Act of 1978 (FISA), and the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 13 Part II will also relate a history of the terrorist events of September 11, 2001.14 Part III discusses the development of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act) enacted in October 2001, focusing on increased governmental surveillance powers. 15 Part IV analyzes this legislation and argues that it potentially violates guaranteed Fourth Amendment protections. 16 Finally, Part V demonstrates that Congress and the courts must take an active role in ensuring that this new national security legislation is applied to true cases of terrorism and that the 17 protections of the Fourth Amendment remain intact. II. BACKGROUND By adopting the Fourth Amendment, the Framers of the Constitution guaranteed individuals within the United States the right to be free from unreasonable government intrusion. 18 Since the American Revolution, the power to engage in foreign intelligence gathering has been vested with the executive branch of the federal government. 19 Fourth Amendment protections, however, have only been applied to domestic 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. U.S. CONST. amend. IV. Likewise, the First Amendment's protections from guilt by association and other protections for immigrants and foreign visitors are at risk of erosion, as much of this new legislation allows for the extended detainment of foreign nationals. See ACLU, USA PATRIOT Act Boosts Government Powers While Cutting Back on Traditional Checks and Balances, an ACLU Legislative Analysis (Nov. 1, 2001), at http://www.aclu.org/congress/ L ll 0101a.html [hereinafter ACLU Legislative Analysis]. 12. See infra Part I.A-B (providing an overview of Fourth Amendment law). 13. See infra Part II.C-D (discussing the development of national security legislation). 14. See infra Part 1I.E (describing the events of September 11, 2001). 15. See infra Part III (narrating the development of the USA PATRIOT Act). 16. See infra Part IV (analyzing the USA PATRIOT Act). 17. See infra Part V (calling for strict Congressional and judicial oversight). 18. See infra Part .A (providing an overview of basic Fourth Amendment requirements). 19. See infra Part II.C (discussing early American intelligence activity, the roles of the President and Congress, and the Executive branch's broad use of these powers). Loyola University Chicago Law Journal [Vol. 33 and foreign electronic intelligence gathering since the mid-twentieth 20 century. In the 1960s, Congress became aware of abuses of power occurring throughout the intelligence community and its agencies and enacted legislation to provide oversight of these agencies. 21 The underlying purposes of this legislation were to protect the right of individuals to be free from oppressive government invasion, the right to notice of unreasonable searches and seizures by government actors, and the right to reasonable privacy.2 2 The most recent national security legislation, the USA PATRIOT Act of 2001, was enacted as a response to the terrorist acts of September 11, 2001, and may potentially violate the civil liberties and protections granted to individuals by the Fourth 23 Amendment.
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