Tsekos, Mary Ellen

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Legislative Focus: Patriot Act

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Human Rights BriefVolume 9 | Issue 1 Article 132001Legislative Focus: Patriot ActMary Ellen TsekosAmerican University Washington College of LawFollow this and additional works at: http://digitalcommons.wcl.american.edu/hrbriefPart of the Legislation CommonsThis Column is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ AmericanUniversity Washington College of Law. It has been accepted for inclusion in Human Rights Brief by an authorized administrator of Digital Commons@ American University Washington College of Law. For more information, please contact fbrown@wcl.american.edu.Recommended CitationTsekos, Mary Ellen. "Legislative Focus: Patriot Act." Human Rights Brief 9, no. 1 (2001): 35.35Since the September 11, 2001, attacks on the World TradeCenter and the Pentagon, Congress has considered var-ious pieces of legislation that would significantly expandthe capacity of law enforcement to eliminate terrorist threatswithin the United States. The bill that President Bush signedinto law on October 26, 2001, is called the Provide Appropri-ate Tools Required to Intercept and Obstruct Terrorism Act,or the PATRIOT Act. John Conyers, Jr. (D-MI) and F. JamesSensenbrenner, Jr. (R-WI) introduced the bill in the House ofRepresentatives. Although the final version of the bill limits lawenforcement’s new powers more than the administration orig-inally requested, it continues to pose serious threats to the pro-tection of civil liberties. The PATRIOT Act expands law enforce-ment personnel’s authority in theareas of electronic intelligencegathering, foreign intelligencesurveillance, detention and removalof aliens engaging in terrorist activ-ity, substantive criminal law andcriminal procedure, financial infra-structure, and general emergencyauthorization. The issue of expanded elec-tronic intelligence gatheringreceived the most media coverage.Under the PATRIOT Act, lawenforcement personnel are ableto obtain warrants to wiretap thephones of a specific suspect rather than simply wiretappinga particular phone, which was the legal standard prior to theenactment of the PATRIOT Act. This element of the Act elim-inates the need to obtain new warrants every time a suspectchanges phones. Thus, if law enforcement officials can provea legitimate concern about an individual’s activities, theycan acquire a virtually open-ended warrant to monitor thatindividual. Additionally, the PATRIOT Act allows law enforce-ment officials to track e-mail communications in the same waythey monitor telephone conversations. Accordingly, lawenforcement officials will have the authority to access the e-mail addresses of any suspect and check that suspect’s e-mailwithout a search warrant.In the area of foreign intelligence surveillance, thePATRIOT Act loosens standards for obtaining orders toengage in electronic surveillance of suspects overseas. Beforepassage of the PATRIOT Act, law enforcement officials seek-ing to obtain an order to electronically monitor a suspectedterrorist overseas had to demonstrate that the collection offoreign intelligence information was the “sole or primarypurpose” of the investigation. Under the new law, the col-lection of foreign intelligence information only needs to be“a significant purpose” of the investigation. Originally, Attor-ney General John Ashcroft requested an even looser standard,which required that the collection of foreign intelligenceinformation need only be “a purpose” of the investigation.The new law also dramatically expands law enforcementofficials’ authority to detain individuals suspected of con-ducting terrorist activity. Previously, when law enforcementofficials suspected individuals of engaging in terrorism, theycould detain suspects for only 48 hours without bringingcharges against them. Under the PATRIOT Act officials candetain suspects for up to seven days without charging suspectswith a crime. Attorney General Ashcroft originally requestedthat law enforcement officials be able to detain individualsindefinitely without formal charges. The extended time frame for detention without beingcharged is significant in light of the increasing use of Secre-tary of State Colin Powell’s list of organizations and individ-uals considered to be terrorist or related to terrorist organi-zations. Secretary of State Powell created this list with virtuallyno oversight. Under the PATRIOT Act, the secretary of statehas sole authority to add individuals and organizations to thelist of suspected terrorists. The secretary of state is requiredto inform the speaker of the House of Representatives, theHouse minority leader, the president pro temp, the Senatemajority leader, members of the relevant congressional com-mittees, and the secretary of theTreasury Department seven daysbefore publishing any additions inthe Federal Register. On September 24, 2001, Presi-dent Bush announced ExecutiveOrder Blocking Property and Pro-hibiting Transactions With PersonsWho Commit, Threaten to Com-mit, or Support Terrorism. Pur-suant to this Executive Order, oncean organization or individual isplaced on the secretary of state’slist, anyone associated with thatindividual in any way is potentiallysubject to liability. Although it may not be immediately appar-ent how this provision could affect the general public, theWashington, D.C.-based law firm Arent Fox published amemorandum on October 1 explaining to their clients howthey might be affected. The firm emphasized that compliancewith the Executive Order “. . . would prove to be challenging”to their clients. They advised their clients to “. . . review theirexisting policies and procedures to ensure that they are tak-ing due care to avoid transacting business with an individualor entity that appears on the various blocked persons listsapplicable to a particular transaction.” The Arent Fox mem-orandum noted the financial, transportation, telecommuni-cations, and hospitality industries would be particularlyaffected because of the number of international transactionseach industry handles in a given day.The differences between the bill that RepresentativesConyers and Sensenbrenner introduced and the version thatPresident Bush signed into law indicate that Congress sig-nificantly altered the PATRIOT Act. Notably, Congress addeda clause requiring that the provisions regarding electronicsurveillance expire automatically in four years, unless renewed.The bill nonetheless contains provisions that do not expire.In the wake of the September 11th attacks, the country isgrappling with ensuing events and endeavoring to developeffective means to protect Americans. It is critical that thegovernment strike a delicate balance between maintainingcitizens’ physical safety and civil liberties. As Executive Direc-tor of Human Rights Watch Kenneth Roth observed, “[a]s theU.S. defends itself from terrorism it must also strengthenits defense of the freedoms that are the hallmark of thecountry.” * Mary Ellen Tsekos is a J.D. candidate at the Washington Collegeof Law and a staff writer for the Human Rights Brief.legislative focusPATRIOT Actby Mary Ellen Tsekos*Although the final version of the bill limitslaw enforcement’s new powers more thanthe administration originally requested,it continues to pose serious threats to the protection of civil liberties.1Tsekos: Legislative Focus: Patriot ActPublished by Digital Commons @ American University Washington College of Law, 2001

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