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U.S. President Barrack Obama signed an extension to H.R. 2975, an Act to Provide Appropriate Tools Required to Intercept and Obstruct Terrorism Act (2001), known as the Patriot Act.
The Patriot Act was put in place following the September 2001 attacks on America. The provisions expanded the abilities of law-enforcement officials to conduct surveillance of suspected terrorists both in the U.S. and abroad. A New York Times article from 2 October 2001 described its passage as: “the climax of a remarkable 18-hour period in which both the House and the Senate adopted complex, far-reaching antiterrorism legislation with little debate in an atmosphere of edgy alarm, as federal law enforcement officials warned that another attack could be imminent.”
President George W. Bush signed the Act into law on 24 October 2001. It was estimated by the Congressional Budget Office that implementing the 2001 Patriot Act would cost about US$1 billion over the 2002-2006 period. The 2001 Act built upon a previous 1978 American statute, the Foreign Intelligence Surveillance Act. The 2001 Act substantially augmented the powers of American authorities (FBI, CIA, NSA, and American armed forces) in their acquisition of confidential information. Unlike other domestic criminal surveillance laws, such as the 1968 Omnibus Crime Control and Safe Streets Act (known as the ‘Wiretap Act’) federal authorities needed only to demonstrate probable cause to conduct surveillance on a foreign agent or even a foreign state, even if there was no reason to believe a crime was imminent.
Signing of the Patriot Sunsets Extension Act (2011) renews three central federal powers: the ‘roving wiretap’ powers that allows ongoing electronic surveillance of foreign suspects regardless of communication device or location; the ‘library provisions’ power that allows a very broad range of personal material to be investigated; and the ‘lone wolf’ provisions that give the government authority to investigate foreigners, even if they have no known affiliation with terrorist groups. The only requirement for these provisions is that orders from secret federal courts are required.
Some Republicans and Democrats justified their support for the Act by claiming the 2001 Patriot Act led to the killing of Osama bin Laden. Hence, its renewal was essential to protect American from possible retaliations for bin Laden’s death. Not all Republicans, however, supported the renewal. Republican amendments sought to limit government authority to investigate gun records and financial transactions, seen as impinging on citizen’s liberties. These were rejected before the vote began. Democratic efforts to include increased oversight and audits on the court orders were also rejected. In response, Democrat’s Senator Patrick Leahy (Vermont) said he would introduce a separate oversight bill.
The Justice Department testified to the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security in March 2011 that roving wiretaps and warrants for business records were used sparingly. Justice Department testimony also claimed that the lone wolf authority had yet to be used. The American Civil Liberties Union (ACLU) argued court approvals for business record access jumped from 21 in 2009 to 96 in 2010. The civil liberties organization contended the Patriot Act had blurred the line between investigations of actual terrorists and those not suspected of doing anything wrong.
The vote over the Patriot Sunsets Extension Act divided the American congress, just as it divides Americans. The House of Representatives voted 250 to 153, with 31 Republicans and 122 Democrats opposed. The Senate approved the bill 72 to 23 votes. Four Republicans—Rand Paul (Florida), Dean Hellero (Nevada), Mike Lee (Utah) and Lisa Murkowski (Alaska)—joined 18 Democrats and Independent Senator Bernie Sanders of Vermont in voting against the measures. The Senate debate created unusual coalitions with the left’s Al Franken (Minnesota) joined in support from Rand Paul, considered one of the most conservative Senators.
Senator Rand argued: “We shouldn’t be fearful of freedom, we shouldn’t be fearful of individual liberty.” He rejected claims made by Senator Reid that he was “in favor of putting weapons in the hands of terrorists.” Senator Mark Udall (Democrat, Colorado) argued that provisions of the Act such as collecting business records overly exposed law-abiding citizens to government scrutiny. “If we cannot limit investigations to terrorism or other nefarious activities, where do they end?” he asked. The Republican’s Senate Minority Leader, Mitch McConnell (Kentucky) said after the vote: “Today’s extension of the Patriot Act means that our intelligence community, military and law enforcement professionals will continue to have the tools they need to safeguard us from future attacks.”
Just as the 2011 Act divided lawmakers over issues of liberties, security, scrutiny, and safety, the Patriot Act divides American voters. In February 2011, 42 percent of American’s surveyed by the Pew Research Centre said the Patriot Act was a necessary tool that helped the government find terrorists, while 34 percent said Act went too far and posed a threat to civil liberties.
The Concerned Citizens Against the Patriot Act (CCAPA) argues the Patriot Act contravenes the U.S. Bill of Rights. They argue that although the federal government is required by the provisions of the Constitution to respect individual citizen’s basic rights, the most significant guarantees for individual civil rights are contained in the Bill of Rights (Amendments 1-10). The First Amendment, for example, guarantees freedom of religion, speech, and the press, the rights of peaceful assembly and petition.
In relation to the Patriot Act and the newly ratified Patriot Sunsets Extension Act, the CCAPA point out that Amendment IV provides the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizure; shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Yet the Patriot Act, et al, ensures that the government may search and seize Americans’ papers and effects without probable cause to assist “terror investigation”.
The CCAPA also observe that Amendment VI entitles accused criminals the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime has been committed; to be informed of the nature and cause of the accusation; to be confronted with the witnesses against then; and to have the assistance of counsel for defense. Under the anti-terrorism laws, the government may jail Americans and others indefinitely without a trial. Australians have first-hand experience of this, as David Hicks and Mamdouh Habib know. The two Australian citizens, Habib and Hicks, were both transferred to U.S. custody following their apprehension in Pakistan in October 2001 and in Afghanistan in December 2001, respectively. They were detained at Guantanamo Bay.
Other Bill of Rights infringements, according to the CCAPA, include Amendments I and VI which are contravened by Patriot Act provisions limiting freedom of association (the government may monitor religious and political institutions without suspecting criminal activity); the right to legal representation (the government may monitor conversations between attorneys and clients in federal prisons and deny lawyers to those accused of crimes); the right to freedom of speech (the government may prosecute keepers of public records if they tell anyone the government subpoenaed information related to a terror investigation); and the right to liberty (people may be jailed without being charged or being able to confront witnesses against them with those labeled as “unlawful combatants” held incommunicado and refused attorneys).
There is international concern that the Patriot Act’s application could extend beyond the American borders and infringe upon the right to privacy of thousands of non-American citizens and foreign businesses. Canadians are particularly concerned that private information about citizens and businesses is no longer effectively protected by domestic laws, even though the protection of personal information has long been considered as a fundamental right in Canada under the 1982 Canadian Charter of Rights and Freedoms.
Internationally, states that have signed the Universal Declaration of Human Rights and the United Nations’ International Pact Regarding Civil and Political Rights would expect that international law enshrines the protection of personal information, either as a fundamental right or as an intrinsic part of the protection of human dignity and freedom.
Martin Scheinin, the United Nation’s Special Rapporteur on the promotion and protection of human rights and fundamental freedoms, has expressed concerned that the Patriot Act and the Detainee Treatment Act (2005) and America’s adverse developments in immigration and refugee policies, increased profiling and domestic surveillance, enhanced interrogation techniques, and a decline in press freedom, has weakened human rights globally and in America. Scheinin has said: “Despite the existence of a tradition in the United States of respect for the rule of law, and the presence of self-correcting mechanisms under the US Constitution, it is most regretful that a number of important mechanisms for the protection of rights have been removed or obfuscated under law and practice since the events of September 11”.
This includes the 2001 Patriot Act, and no doubt would include the 2011 Patriot Sunsets Extension Act. The Detainee Treatment Act prohibits the “cruel, inhuman, or degrading treatment or punishment” of detainees and provides for “uniform standards” for interrogation. However, the 2005 Act also removed the federal courts’ jurisdiction over detainees wishing to challenge the legality of their detention, stating that “no court, justice or judge shall have jurisdiction to hear or consider” applications on behalf of Guantanamo detainees.
The ongoing issue for Barack Obama, at least internationally, is that America is a member of the United Nations, having signed the prerequisite document the Charter of the United Nations. The Charter sets out the obligations of members and, among other matters, establishes the Security Council. Article 2(4) of the Charter states: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.” However, Article 2(4) does not prevent a country from defending itself in response to acts of aggression.
Article 51 of the Charter states: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.” The U.S. has said that its domestic acts (the Patriot Act, et al, and the Detainee Treatment Act) and international actions (in Afghanistan, Iraq, and more recently in Pakistan) are acts of self-defense rather than reprisal or punishment. This is a view that is problematic in parts of the Middle East and probably in parts of America.
A permanent extension of the Patriot Sunsets Extension Act sought by Republicans was defeated. The current measures are in place until June 2015. American exceptionalism remains in place for four more years, is it necessary for American security or does it just keep civil liberty breaches in place longer?