Cutting Back on Checks and Balances

An ACLU Legislative Analysis of the USA Patriot Act

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 individual liberty.

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 relevant.

Criminal Justice

* 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 intelligence requirements.

~ 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 human life.

Those who provide lodging or other assistance to these "domestic terrorists" could have their homes wiretapped and could be prosecuted.

Financial Privacy

* 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.

Student Privacy

* 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 at

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