AALLLL AABBOOUUTT TTHHEE UUSSAA PPAATTRRIIOOTT AACCTT A Manual for Activists (and anyone else who wants to know more about the erosion of our liberties since September 11, 2001) American Civil Liberties Union of Virginia ALL ABOUT THE USA PATRIOT ACT A Manual for Activists (and anyone else who wants to know more about the erosion of our liberties since September 11, 2001) Funding for this report was provided by the Tony Dunn Foundation Washington, D.C. Published by American Civil Liberties Union Foundation of Virginia Six North Sixth Street, Suite 400 Richmond, Virginia 23219 Telephone: (804) 644-8022 Email: [email protected] Website: www.acluva.org April 2005 June 2005 July 2005 January 2006 Revised February 2006 Contents I. Why a Manual? .........................................................................................................2 II. Introduction: September 11, the PATRIOT Act & More.......................................3 III. Understanding the USA PATRIOT Act....................................................................5 A. Section-by-Section Explanation of Key Provisions .................................................5 1. Section 201: Intercepting Communications Relating to Terrorism.............5 2. Section 202: Intercepting Computer Fraud Communications .....................5 3. Section 203: Sharing of Criminal Investigative Information.......................6 4. Section 206: Roving Surveillance Authority...............................................6 5. Section 207: Surveillance of Non-US Persons ............................................7 6. Section 212: Emergency Disclosure of Electronic Messages......................7 7. Section 213: Delaying Notice of Searches (sneak and peek) ......................7 8. Section 214: Pen Register and Trap and Trace Authority ...........................8 9. Section 215: Access to Records and Other Items........................................8 10.Section 216: Authorities Relating to Trap and Trace Device......................9 11.Section 217: Interception of Computer Trespasser Communications .........9 12.Section 218: Foreign Intelligence Information..........................................10 13.Section 219: Single Jurisdiction Search Warrants for Terrorism ..............10 14.Section 220: Nationwide Search Warrants for Electronic Evidence .........11 15.Section 411: Definitions of Terrorism, Deportation of Immigrants ..........11 16.Section 412: Detention of Suspected Terrorists ........................................11 17.Section 505: Miscellaneous National Security Authorities .......................12 18.Section 507: Disclosure of Student Records (also Section 508) ...............12 19.Section 802: Definition of Domestic Terrorism ........................................12 20.Section 805: Material Support for Terrorism ............................................13 21.Section 901: Responsibilities of Director of Central Intelligence .............13 B. USA PATRIOT Act Reauthorization.....................................................................14 1. The Conference Report...............................................................................14 2. Congressional Voting .................................................................................16 C. The PATRIOT Act and the Bill of Rights: An Overview ......................................16 1. First Amendment (free speech, assembly and religion) ...........................16 2. Fourth Amendment (searches and seizures) .............................................17 3. Fifth and Sixth Amendments (fairness in criminal prosecutions) ............18 4. The Constitutional Right of Privacy ..........................................................19 IV. Not Just the PATRIOT Act: Other Threats to Liberty since 9/11.......................21 A. The Homeland Security Act of 2002.....................................................................21 B. Terror in the Courts: Federal Prosecutions since 9/11 ..........................................23 C. PATRIOT ACT II and Related Legislation...........................................................29 V. Background and Resources for Keeping Current ..................................................32 I. Why a Manual? Perhaps the most controversial and least understood law in recent memory, the USA PATRIOT Act is a rambling 342-page hodgepodge that amends more than a dozen separate federal statutes, many in ways that dramatically erode the privacy and due process rights of American citizens and our immigrant population. It goes without saying that it defies easy distillation. This manual explains key provisions of the PATRIOT Act for those who want to understand it better and especially for those who want to use that knowledge to change it. The ACLU is profoundly concerned about the loss of civil liberties since 9/11, having identified it as the highest organizational priority since the passage of the PATRIOT Act in late 2001. The information herein, having been scrupulously researched and documented, is accurate, to be sure. But the manual’s purpose is to persuade-- to persuade the reader to persuade others to contact their congressional representatives, pass anti-PATRIOT Act resolutions in their locality, or simply pass on their outrage to others so that they too might act to restore our lost liberties. Don’t be daunted by the manual’s size. Except for the most curious and compulsive among us, the manual is not meant to be read cover to cover. Find the parts that interest you, assemble them in the most meaningful way for your purposes, and rely on the rest as a resource. One last thing. The PATRIOT Act and its many administrative and executive relatives are moving targets. Hardly a day goes by without something happening -- another court ruling, policy change, or newly exposed violation of our rights. At the end of the manual is a list of websites and other resources that can be used to find the latest information on most of the subjects addressed here. And while we plan to keep this manual updated, it will always be a little behind. If you are reading this and are concerned about the loss of liberties in the United States, you have a friend in the ACLU. We can’t be everywhere at once, but we’ll try to help. Do not hesitate to call. Kent Willis Executive Director ACLU of Virginia 2 II. Introduction: September 11, the USA PATRIOT Act & More Three days after the terrorist attacks of September 11, 2001, before any investigation into what had caused the attacks or how they might have been prevented, the administration of President George W. Bush asked Congress to pass a package of far-reaching laws crafted by the Department of Justice under then-Attorney General John Ashcroft. These laws were described by Ashcroft as “carefully drawn to target a narrow class of individuals: terrorists” and crucial to federal law enforcement officials facing new challenges posed by a war on global terrorism. To underline this purpose, the legislation became known as the USA PATRIOT Act, an acronym for “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.” Responding to the Administration’s pleas for prompt action, the Senate Judiciary Committee held only one hearing on the provisions of PATRIOT Act and questioned only one witness: Ashcroft. The House Judiciary Committee drafted and circulated a less threatening alternative bill, but House members never got a chance to vote on it. They voted instead on an Administration-style bill that had been substituted at the last minute. Five weeks after it was introduced, on October 26, 2001, President George W. Bush signed the PATRIOT Act into law. But in fact, the government already had broad authority to prosecute anyone it reasonably believed was engaged in terrorism. It was also already empowered to spy on anyone it believed to be the agent of foreign power. But those powers were subject to various checks and balances put into place to prevent the government from running amuck. The effect of USA PATRIOT was to reduce those checks and balances while at the same time expanding the government’s powers. Americans would soon learn that the new powers bestowed by the PATRIOT Act are not, in fact, narrowly drawn. Nor do they apply only to the pursuit of suspected terrorists. Instead, they were deliberately written to be broadly construed, and they profoundly compromise the civil liberties promised by the U.S Constitution. Meanwhile, through an exhaustive series of executive orders and agency rule changes, the executive branch has enhanced and increased its authority in a manner unprecedented even in wartime. Among other things, the Bush Administration has empowered itself to overrule immigration judges, suspend attorney-client privilege, engage in racial profiling dragnets, suspend the due process rights of non-citizens and engage in acts that, despite the prevarications of White House and Department of Justice lawyers, can only be described as torture. All this while at the same time invoking the pretext of national security to limit the public’s right to information about government activities and the scrutiny of Congress. In the months following September 11, federal agents engaged in mass arrests of Arab South Asian, North African and Muslim men, many of them legal, working, law-abiding immigrants. Under a provision of the PATRIOT Act, the U.S. attorney general may arrest and detain, without charge, any non-citizen he has “reasonable grounds to believe” poses a threat