Cutting Back on Checks and Balances
An ACLU Legislative Analysis of the USA Patriot
Resist newsletter, December 2001
When President Bush signed the USA Patriot Act into law last
week, he significantly boosted the government's law enforcement
powers while continuing a l trend to cut back on the checks and
balances that Americans have traditionally relied on to protect
Following are highlights of the civil liberties implications
of the USA Patriot Act, which was signed into law on October 26,
by President Bush, as compiled by the ACLU.
* The new law permits the detention of non-citizens facing
deportation based merely on the Attorney General's certification
that he has "reasonable grounds to believe" the non-citizen
endangers national security. While immigration or criminal charges
must be filed within seven days, these charges need not have anything
to do with terrorism. They can be minor visa violations of the
kind that normally would not result in detention at all. Non-citizens
ordered removed on visa violations could be indefinitely detained
if they are stateless, their country of origin refuses to accept
them, or they are granted relief from deportation because they
would be tortured if they were returned to their country of
* For the first time, domestic groups can be labeled terrorist
organizations, making membership or material support a deportable
offense. Non-citizens could also be detained or deported for providing
assistance to groups that are not designated as terrorist organizations
at all, as long as activity of the group satisfies an extraordinarily
broad definition of terrorism that covers virtually any violent
activity. It would then fall on the non-citizen to prove that
his or her assistance was not intended to further terrorism. Non-citizens
who provide assistance to such groups-including paying membership
dues-will run the risk of detention and deportation.
Wiretapping and Surveillance
* The USA Patriot Act allows the government to use its intelligence
gathering power to circumvent the standard that must be met for
criminal wiretaps. Intelligence surveillance merely needs to be
only for a "significant" purpose.
* The USA Patriot Act extends a very low threshold of proof
for access to Internet communications that are far more revealing
than numbers dialed on a phone. Under current law, a law enforcement
agent can get a pen register or trap and trace order requiring
the telephone company to reveal the numbers dialed to and from
a particular phone. To get such an order, law enforcement must
simply certify to a judge -who must grant the order-that the information
to be obtained is "relevant to an ongoing criminal investigation."
This is a very low level of proof, far less than probable cause.
* In allowing for "nationwide service" of pen register
and trap and trace orders, the law further marginalizes the role
of the judiciary. It authorizes what would be the equivalent of
a blank warrant in the physical world: the court issues the order,
and the law enforcement agent fills in the places to be searched.
* The Act also grants the FBI broad access in "intelligence"
investigations to records about a person maintained by a business.
The FBI need only certify to a court that it is conducting an
intelligence investigation and that the records it seeks may be
* The law dramatically expands the use of secret searches.
Normally, a person is notified when law enforcement conducts a
search. The USA Patriot Act extends the authority of the government
to request "secret searches" to every criminal case.
* The Act also allows for the broad sharing of sensitive information
in criminal cases with intelligence agencies, including the CIA,
the NSA, the INS and the Secret Service. It permits sharing of
sensitive grand jury and wiretap information without judicial
review or any safeguards regarding the future use or dissemination
of such information.
These information-sharing authorizations and mandates effectively
put the CIA back in the business of spying on Americans: Once
the CIA makes clear the kind of
information it seeks, law enforcement agencies can use tools
like wiretaps and intelligence searches to provide data to the
CIA. In fact, the law specifically gives the Director of Central
Intelligence-who heads the CIA-the power to identify domestic
~ The law also creates a new crime of "domestic terrorism."
The new offense threatens to transform protestors into terrorists
if they engage in conduct that "involves acts dangerous to
Those who provide lodging or other assistance to these "domestic
terrorists" could have their homes wiretapped and could be
* Under the new law, financial institutions are required to
monitor daily financial transactions even more closely and to
share information with other federal agencies, including foreign
intelligence services such as the CIA. The law also allows law
enforcement and intelligence agencies to get easy access to individual
credit reports in secret. The law provides for no judicial review
and does not mandate that law enforcement give the person whose
records are being reviewed any notice.
* The USA Patriot Act allows law enforcement officials to
receive the student data collected for the purpose of statistical
research under the National Education Statistics Act. The statistics
act requires the government to collect a vast amount of identifiable
student information and-until now-has required it to be held in
the strictest confidence without exception. The USA Patriot Act,
however, eliminates that protection and-while it requires a court
order-allows law enforcement agencies to get access to private
student information based on a mere certification that the records
are relevant to an investigation.
This article is adapted with permission from the American
Civil Liberties Union. For more information, visit their website