Enacted October 26, 2001, the USA PATRIOT Act gave the federal government expanded powers to seek out, arrest, and prosecute suspected terrorists operating within the United States. Its official title is an acronym that stands for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.
Following the terrorist attacks in the United States on September 11, 2001, Congress worked with President George W. Bush to tighten security against future attacks. Attorney General John Ashcroft asked Congress to approve quickly new law-enforcement capabilities to effectively fight terrorism in a new electronic age. Ashcroft requested expanded powers of surveillance, the ability to share information between government agencies, the right to detain suspects considered dangerous to national security, and strengthened moneylaundering laws to stop the flow of funding from within the United States to terrorist organizations elsewhere. Congress balanced the need to pass legislation quickly with the concern for protecting civil liberties by including a “sunset” clause in certain provisions of the law, which placed an automatic expiration on those provisions at the end of four years unless Congress reauthorizes them. The House of Representatives approved the USA PATRIOT Act on October 24, 2001, by a vote of 357 to 66; the Senate passed it on October 25 by a vote of 98 to 1.
The most controversial provisions of the USA PATRIOT Act were those that expanded powers of search
And surveillance. Among the measures were changes to existing wiretap laws, previously authorized by the 1978 Federal Intelligence Surveillance Act (FISA). FISA established procedures that government agents must follow before conducting foreign intelligence investigations, including judicial approval from a special FISA court to tap telephone lines (wiretap), and set limitations on the use of information obtained. Although several legislative measures had expanded electronic surveillance capabilities since 1978, such as the 1986 Electronic Communications Privacy Act and the 1994 Communications Assistance for Law Enforcement Act, the Clinton administration had also sought the ability to use “roving” wiretaps in the late 1990s. The USA PATRIOT Act authorized the use of roving wiretaps, which enabled agents acting under FISA authority to track communications on any phone associated with a suspect rather than obtaining a separate court order for each line. The new act extended the list of crimes for which wiretaps could be used to include terrorism and computer fraud, gave investigators the ability to “tap” Internet communications in the same way as telephone lines, and enabled investigators to electronically track all communications relevant to an investigation aimed at preventing terrorism, rather than restricting them to those of foreign agents. The new law also permitted information sharing between law-enforcement and intelligence-gathering agencies.
The USA PATRIOT Act expanded the ability of law-enforcement agencies to search suspects’ property and business records in international terrorism investigations. The new law authorized the use of nationwide search warrants that could be used in any jurisdiction, eliminating the need to obtain a separate warrant for each jurisdiction. In addition, the law allowed investigators to search suspects’ property without notifying them immediately if it could be shown that to do so posed a risk to the investigation. The measure to expand the list of business records that investigators could request to include books, records, documents, or items pertinent to an ongoing investigation proved to be one of the most contentious provisions when it came time to renew the USA PATRIOT Act. Those who felt that the law did not provide adequate protections for civil liberties argued that it provided unlimited access to personal records, including library and bookstore records. Most of the search and surveillance provisions carried sunset clauses.
Provisions to tighten money-laundering laws restricted the ability of certain foreign banks and foreign jurisdictions—those suspected of money laundering by the secretary of the treasury, the secretary of state, and the attorney general—to conduct transactions and maintain accounts within the United States. The new law required due diligence on the part of foreign and domestic banking institutions to monitor transactions, required identification of customers conducting business with foreign banks suspected of money laundering, increased the penalties for those attempting to transfer money anonymously, and required any person conducting a transaction greater than $10,000 to file a report to a bureau within the Treasury Department.
Some of the border control measures included the ability to bar from entry into the United States anyone associated with terrorist organizations, anyone who publicly endorses or encourages terrorist activity against the United States, and anyone who provides support to terrorist organizations. The new law allowed the Immigration and Naturalization Service to detain suspected terrorists for seven days before bringing charges, and required the attorney general to create a program to track foreign students within the United States. The USA PATRIOT Act removed the statute of limitations and raised the maximum prison term for some crimes involving terrorism.
The USA PATRIOT Act survived legal challenges concerning its surveillance provisions, most notably the 2002 FISA Court of Appeals decision to overturn a lower FISA court decision. The lower court had denied a Justice Department request for expanded surveillance and intelligence-sharing powers. Convening for the first time since its creation in 1978 to consider an appeal from the Justice Department, the Court of Appeals ruled that the 2001 USA PATRIOT Act had eliminated the barrier between law-enforcement and intelligence-gathering agencies and further ruled that the traditional wall between agencies had never been mandated by FISA nor intended by Congress. The ACLU along with three other groups sought to appeal the ruling, but the Supreme Court denied their request in March 2003.
When the sunset provisions came due for renewal in late 2005, the administration sought to make them permanent. Four Republicans joined with Democrats in the Senate to block reauthorization by the deadline, and Bush was forced to accept a five-week extension to allow more time for debate; the deadline was extended a second time in early 2006. Lawmakers were reluctant to renew or remove two of the sunset provisions without some modifications to further safeguard civil liberties: those allowing federal agents to use roving wiretaps and to seize business records with FISA court approval. Although the House wanted a 10-year extension of the sunset clause on these two provisions, the Senate agreed to only a four-year extension. Before approving such an extension, lawmakers made it more difficult for the government to gain access to information considered sensitive, such as library, tax, or medical records, and allowed recipients of such requests for records greater freedom to seek legal counsel. Federal agents became more accountable to the FISA court when conducting surveillances involving roving wiretaps under the new USA PATRIOT Act. The reauthorization legislation, signed by President Bush on March 9, 2006, as the USA PATRIOT Improvement and Reauthorization Act of 2005, extended these two provisions until 2009 and made the other 14 permanent.
—Cynthia Stachecki
Further reading: Stewart Baker, Patriot Debates: Experts Debate the USA Patriot Act (New York: American Bar
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