Civil liberties in an age of terrorism: safeguarding individual rights while ensuring national security is more difficult now than ever. Litigation under the PATRIOT Act may help achieve the right balance.

Congress passed the USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) shortly after, and in response to, the terrorist attacks of September 11, 2001. (1) Section 215--one of the act's controversial provisions--increases the FBI's power to conduct surveillance on people living in the United States, including citizens and permanent residents.

One of the first legal challenges to the act, attacking the constitutionality of [section] 215, was filed in July 2003 by the American Civil Liberties Union (ACLU), on behalf of six Muslim groups that claim the FBI singled out their members because of their ethnicity and beliefs. (2)

The inherent tension between liberty and security is clearly intensified by the PATRIOT Act. Its opponents and the pending litigation raise several constitutional issues.

From the Coercive Acts of the British Parliament in 1774 to the Alien and Sedition Acts in 1798, President Lincoln's suspension of habeas corpus during the Civil War, the internment of Japanese Americans during World War II, the lists of "subversive Americans" compiled during the Red Scare of the 1950s and 1960s, and the executive order suspending publication of the Pentagon Papers, civil liberties and national security have often been at loggerheads, perhaps never more so than in the wake of 9/11.

This difficult tension--between the responsibility of a liberal democracy to protect individual freedoms and its concurrent responsibility to protect itself, which may require intrusions into those freedoms--is complicated by the modern realities of technology and domestic terrorism. "Citizens of the United States may soon have to choose between civil liberties and more intrusive forms of protection," said Secretary of Defense William Cohen in 1997. (3)

While interests in civil liberties should not always trump interests in national security, a legislative body cannot justify depriving people of civil liberties by simply declaring that it is "in the interest of national security." The age-old question remains: Is there a reasonable way to balance the need for the United States to protect itself from threats to national security--not knowing when or where or how an attack may occur--with the need to preserve the freedoms stated in the Bill of Rights?

On October 26, 2003--only 45 days after the terrorist attacks and with atypically limited congressional or public debate--President George W. Bush signed the PATRIOT Act, which greatly expanded executive branch powers to conduct surveillance inside the United States. Most of the act's provisions are set to expire, or "sunset," on December 31, 2005, unless renewed by Congress.

Supporters of the act point to Bush's constitutional responsibility to protect the United States from national security threats. They assert that the PATRIOT Act provides executive agencies with the tools that are necessary to combat terrorism and the ability to adapt those tools as technology evolves.

According to an article on a Department of Justice (DOJ) Web site, "Many of the tools the act provides to law enforcement to fight terrorism have been used for decades to fight organized crime and drug dealers, and have been reviewed and approved by the courts." (4) Because these measures are justified by the need to prevent legitimate threats to national security, the act strikes a reasonable and constitutional balance between civil liberties and national security.

Opponents of the act cite incursions on freedom of speech, individual privacy, and Fourth Amendment rights. After the act passed, an unusual coalition of interest groups--from the left to the libertarian right--voiced strong concerns regarding the unprecedented expansion of executive branch investigatory powers and encroachment on civil liberties. The Cleveland Plain Dealer even called the act the "seedstock of a police state." (5)

Opponents claim the act purges many of the standard checks and balances that historically restricted the federal government's investigative powers. Three states--Alaska, Hawaii, and Vermont--and more than 245 local governments--including large cities, such as Atlanta, Chicago, Detroit, Philadelphia, and San Francisco--have adopted formal resolutions critical of the act. (6)

Governing surveillance

The Fourth Amendment generally requires that executive officers obtain a warrant from a federal judge before conducting either a search or a seizure, and they must convince the judge that the warrant is based on probable cause.

In 1928, the U.S. Supreme Court held that the Fourth Amendment did not apply to electronic wiretapping devices because the devices did not constitute a physical search of a suspect's premises, nor did they seize a suspect's property. (7)

In 1967, however, the Court extended Fourth Amendment protection to electronic surveillance--in this case requiring a warrant for wiretapping of a public telephone line, where individuals had a reasonable expectation of privacy--although the justices declined to extend this holding to cases "involving the national security." (8)

Federal courts became reluctant to apply Fourth Amendment protections to foreign intelligence surveillance, preferring to defer to Congress and the president on matters of national security. Many federal courts even adopted foreign intelligence exceptions to the Fourth Amendment. Thus, until the last 30 years, executive agencies were largely unrestrained in conducting foreign intelligence surveillance.

In 1972, the U.S. Supreme Court held that, to comply with the strictures of the Fourth Amendment, executive branch officials needed judicial approval for foreign intelligence surveillance. (9) However, the justices carefully noted that the policy and practical considerations of domestic security surveillance differed from those of ordinary criminal surveillance.

The majority even suggested that Congress consider different protective standards for surveillance concerning national security and criminal investigation: "Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of government for intelligence information and the protected rights of out citizens." (10)

This invitation to distinguish between foreign intelligence surveillance and criminal investigation, and its subsequent abuses by the Nixon administration, gave rise to the 1978 Foreign Intelligence Surveillance Act (FISA). (11)

FISA standards

The FISA sought to strike an appropriate balance between the government's need for national security and an individual's constitutional rights. It set out government procedures for conducting surveillance in foreign intelligence investigations, using a different probable cause standard from that required in a run-of-the-mill criminal investigation.

In criminal matters, probable cause existed "where the facts and circumstances within [the government's] knowledge ... [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed." (12)

The FISA, however, allowed permanent U.S. residents to be wiretapped on a showing of probable cause that the investigation target was a "foreign power" or an "agent of a foreign power" and that acquiring such information was "necessary to the national defense or the security of the United States or the conduct of the foreign affairs of the United States."

The FISA did not require any showing of criminal activity by the surveillance subject, unless the intercepted communications belonged to a "United States person" (a permanent resident or citizen of the country). When such a person was involved, the courts required only a minimal standard of probable cause--that the target be engaged in activity that "may involve" a criminal violation. Officials also had to stipulate that these targets were not being considered "solely upon the basis of activities protected by the First Amendment."

The FISA created the Foreign Intelligence Surveillance Court (FISC)--staffed by seven (now 11) federal district court judges appointed by the U.S. chief justice for nonrenewable terms of up to seven years--to hear applications for foreign intelligence surveillance orders and warrants. If the FISC denies a warrant application, it is immediately forwarded to a three-judge court of appeal, the Foreign Intelligence Surveillance Court of Review (FISCR). If denied there, the government can appeal to the Supreme Court.

To date, the Court has not heard a FISA application case. Between 1978 and 2002, the FISC, which meets in camera and hears cases on an expedited basis, has considered roughly 15,000 applications and summarily approved the requests in all but a few instances; it denied none until May 2002. (13)

Despite constitutional challenges under the First and Fourth Amendments, courts have consistently upheld the FISA, concluding that it effectively balances the competing interests of individual liberty and national security. Courts have also permitted evidence obtained under the FISA to be admitted in criminal prosecutions, as long as foreign intelligence gathering was the "primary purpose" of the surveillance.

Section 215 of the PATRIOT Act amended the FISA, in part, by relaxing the probable cause requirements and expanding the FISA's reach. (14)

Under [section] 215, the FBI may obtain an order from the FISC requiring production of "any tangible things (including books, records, papers, documents, and other items) sought for an investigation ... to protect against international terrorism or clandestine intelligence activities." Probable cause is unnecessary: The FBI need only articulate that the items requested are "sought for" an authorized investigation. It does not have to suspect any criminal wrongdoing by the target of the investigation, and physical search provisions are not limited to foreign powers and their agents. Anyone, including U.S. citizens, may be investigated. (If a U.S. citizen is targeted, however, the FISA conditions still apply: The investigation cannot be based solely on activities protected by the First Amendment.)

Procedurally, a judge presented with a [section] 215 application must grant the order if he or she "finds that the application meets the requirements of this section." Additionally, those ordered to relinquish their records are prohibited from disclosing to anyone that federal law enforcement authorities sought or obtained such information.

In May 2002, the FISC unanimously denied Attorney General John Ashcroft's request for expanded power to conduct surveillance under the PATRIOT Act. This was the only application for an order that the FISC has rejected outright under the FISA. In November 2002, the FISCR, meeting for the first time, reversed the decision, concluding,

   After the events of September 11, 2001 ... it
   is hard to imagine greater emergencies facing
   Americans than those experienced on
   that date.... Out case may well involve the
   most serious threat our country faces. Even
   without taking into account the president's
   inherent constitutional authority to conduct
   warrantless foreign intelligence surveillance,
   we think the procedures and government showings
   required under FISA [as amended by the USA PATRIOT
   Act], if they not meet the minimum Fourth Amendment
   warrant standards, certainly come close. (15)

ACLU lawsuit

On July 30, 2003, the ACLU filed its suit in the Southern Division of the U.S. District Court for the Eastern District of Michigan, naming Ashcroft and FBI Director Robert Mueller as defendants.

The plaintiffs--six Muslim advocacy groups and their members--contend that they have been unfairly singled out, questioned, accused, deported, and imprisoned by the FBI because of their ethnicity; religion; and political beliefs, activities, and associations (and those of their friends). (16) The plaintiffs say they have no way of knowing with certainty that the FBI used its surveillance powers against them, but their brief devotes 28 pages to specific instances in which they believe they were unconstitutionally targeted.

The plaintiff groups comprise primarily Arab-Americans who practice Islam and outspokenly oppose the war in Iraq. They are critical of "the wide net that has been cast over the Muslim community" after 9/11. They claim that heavy-handed FBI tactics have kept the organizations and their members from expressing their political views, attending mosque and practicing their religion, participating in public debate, engaging in political activity, donating money to legitimate charitable organizations, researching sensitive political and religious topics, and otherwise engaging in activities protected by the First Amendment. The suit contends that by giving federal agencies virtually unlimited authority to gather intelligence on U.S. citizens and permanent residents, [section] 215 violates individual privacy, freedom of speech, and Fourth Amendment rights. (17)

Because the law does not require that the FBI suspect individuals, the plaintiffs assert that the bureau could demand, from a bookstore or library, a list of people interested in books on Islamic fundamentalism; from a health clinic, a list of patients who had received medical care; from a publisher, a list of subscribers to a particular magazine; from an Internet provider, a list of people who visited a particular Web site; from a church, mosque, or synagogue, a list of members; or from a charity, a list of clients and contributors.

Section 215 could be used to obtain, among other things, education records and genetic information, Ashcroft said at a June 2003 hearing before the House Judiciary Committee. (18) The plaintiffs say that granting the government such unfettered power to monitor personal activities endangers personal privacy.

The suit alleges that [section] 215 violates the First Amendment for three reasons. First, the mere threat of government surveillance of various expressive activities--reading habits, religious affiliations, and Internet surfing, for example--produces a chilling effect and discourages people from speaking freely on matters of public concern, including opposition to government policies.

Second, the section allows the FBI to obtain records and personal belongings of U.S. citizens and permanent residents based in part on expressive activities protected by the First Amendment. (The FBI may obtain this information from noncitizens based solely on expressive activities protected by the First Amendment.)

And third, it prohibits those served with [section] 215 orders from telling anyone--ever--that the FBI demanded information, even if the information is not tied to a particular suspect and poses no risk to national security.

The plaintiffs contend that [section] 215 violates the Fourth Amendment because the FISA court is not authorized to determine independently whether the authorities have "probable cause." The judge has no discretion, but must grant the order if the application meets less-than-rigorous [section] 215 requirements. As a result, the FBI may search and seize records or personal belongings without a warrant, without showing probable cause, and without ever notifying people of the searches.

The plaintiffs cite U.S. Supreme Court precedent: "History abundantly documents the tendency of government--however benevolent and benign its motives--to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs." (19) And without meaningful judicial oversight, they contend, [section] 215 renders the Fourth Amendment impotent as a guardian of civil liberty.

Defense of [section] 215

The Bush administration has defended [section] 215 as an appropriate tool to prevent activities that threaten national security. The defendants, however, have not yet made their reply brief publicly available.

Nevertheless, a generic response can be formulated based on the collection of statements, press releases, and policy papers the Justice Department has released in response to criticism of [section] 215.

Federal law enforcement authorities assert that examining "tangible things," such as books, records, papers, documents, and other items, often provides the key to solving crimes. (20) For example, the government might seek records from hardware stores or chemical plants to determine whether anyone purchased materials required for bomb-making, or bank records to ascertain who is sending money to terrorists or organizations that sponsor terrorism.

Consider the following hypothetical. (21) The FBI has received a tip that terrorist sympathizers are planning an underwater attack on a Navy destroyer anchored off California. Under [section] 215, the bureau could request a court order for local dive-school records to determine whether any suspected terrorists had recently taken scuba lessons.

Before the PATRIOT Act took effect, law enforcement authorities could obtain such information only via grand jury subpoenas or by meeting the more rigorous demands of the FISA. Those processes, however, are of questionable worth in the modern age of terrorism because speed and secrecy are vital in uncovering planned terrorist activities before they occur.

The DOJ might argue that had Minneapolis FBI agents not been stymied by bureaucratic red tape in their efforts to search the computer of al-Qaida sympathizer Zacarias Moussaoui in the weeks preceding September 11, 2001, the terrorist attacks might have been prevented.

The PATRIOT Act allows a special federal court, instead of a grand jury, to order production of the dive-school records (or the contents of a hard drive)--as long as the government meets a slightly relaxed standard. It must still demonstrate that it seeks file records for an authorized investigation to obtain foreign intelligence information, and no records may be obtained without the permission of a federal court. Section 215 does not authorize a court order, it simply authorizes the FBI to seek one.

The government argues that it is disingenuous for [section] 215 opponents to conclude that the federal court that oversees espionage and counterterrorism investigations will grant the FBI unlimited authority to spy on people solely on the basis of books read, letters to the editor written, or political rallies attended. In addition, supporters say the section provides for adequate congressional oversight by requiring the attorney general to "fully inform" Congress every six months on how [section] 215 has been implemented.

Weeks after the ACLU filed its lawsuit, Ashcroft called the PATRIOT Act the "linchpin" of the government's ongoing war against terrorism. To abandon its tools, he predicted, would "reject September 11th's lessons [and] senselessly imperil American lives and American liberty." (22)

Repeal efforts

In 2003, many liberal and conservative lawmakers expressed concerns regarding the expansive powers granted the government under [section] 215; some are trying to repeal it.

For example, Sens. Lisa Murkowski (R-Alaska) and Ron Wyden (D-Or.) introduced the Protecting the Rights of Individuals Act (PRIA), which would heighten judicial oversight of surveillance activities and mandate higher standards of proof for FISC's warrants to acquire private information. (23)

PRIA would also forbid mining databases without explicit authorization from Congress, and it would require the Office of the Attorney General to publish annual reports disclosing certain aspects of its search activities under the PATRIOT Act. Finally, the bill would require law enforcement to comply with FISA investigation standards when it asks libraries to turn over information on patrons' Internet use.

In December 2003, Judge Denise Page Hood heard a motion from the DOJ to dismiss the Muslim groups' suit. At press time, she had yet to rule on that motion. Assuming the case proceeds, it will probably be heard in late spring or early summer.

Historic struggle

This case represents the American courts' historic struggle to find a constitutional balance between protecting civil liberties and national security. Almost 150 years ago, the Supreme Court recognized the possibility that granting the government certain "inherent powers" might destroy the fundamental liberty and security of the people it protects. When invalidating Congress's imposition of martial law during the Civil War, the Court wrote, "[A] country preserved at the sacrifice of all the cardinal principles of liberty is not worth the cost of preservation." (24)

However, the Court also recognized the peril of denying the government these powers when it upheld the internment of Japanese-Americans without due process during World War II: "But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger." (25)

The tension is manifest. It is in times of national danger that the government seeks and arguably needs a wide array of powers to protect its people. Yet those times are also when citizens should be most vigilant about the protection of individual freedoms, for they are when there exists "the greatest temptation to dispense with fundamental constitutional guarantees." (26)

Notes

(1.) Pub. L. No. 107 56, 115 Stat. 272 (2001).

(2.) Muslim Cmty. Ass'n v. Ashcroft, No. 03 72913 (E.D. Mich. filed July 30, 2003).

(3.) Michael F. Dowley, Government Surveillance Powers Under the USA PATRIOT Act: Is It Possible to Protect National Security and Privacy at the Same Time? A Constitutional Tug-of-War, 36 SUFFOLK U. L. REV. 165 (2002) (quoting former Secretary of Defense William S. Cohen).

(4.) Department of justice, The USA PATRIOT Act: Preserving Life & Liberty, available at www.lifeandliberty.gov (last visited Jan. 21, 2004).

(5.) Under Cover of Law: A Stealthy Attack Against American's Most Basic Rights Should Be Exposed and Defeated by, the Courts, PLAIN DEALER, Aug. 3,2003, at H2.

(6.) See, e.g., SCS-CSH. J. Res. 22, 23d Leg., First Sess. (Alaska 2003); S. Con. Res. 18, 22d Leg., Reg. Sess. (Haw. 2003); HR J. Res. 9, First Sess. (Vt. 2003).

(7.) Olmstead v. United States, 277 U.S. 438 (1928).

(8.) Katz v. United States, 389 U.S. 347, 358 n.23 (1967).

(9.) United States v. United States Dist. Ct., 407 U.S. 297 (1972).

(10.) Id. at 322-23.

(11.) Pub. L. No. 95 511, 92 Stat. 1783 (1978).

(12.) Brenegar v. United States, 338 U.S. 160, 175-76 (1949).

(13.) See In re Sealed Case, 310 F.3d 717 (Foreign Intelligence Surveillance Ct. Rev. 2002).

(14.) See Nancy Chang, How Does the USA PATRIOT Act Affect Bill of Rights?, N.Y.L.J., Dec. 6, 2001, at 1.

(15.) In re Sealed Case, 310 F.3d 717, 746.

(16.) The six groups are the Muslim Community Association of Ann Arbor, the American Arab Anti-Discrimination Committee, the Arab Community Center for Economic and Social Services, Bridge Refugee and Sponsorship Services, the Council on American Islamic Relations, and the Islamic Center of Portland, Masjed As Saber.

(17.) See Brief for the Plaintiffs (July 2003), available at www.aclu.org (last visited Jan. 21, 2004). The plaintiffs also alleged a Fifth Amendment due process violation because [section] 215 does not require the FBI to inform surveillance targets that it has obtained their records or personal belongings.

(18.) The USA PATRIOT Act: Oversight Hearing Before the House Comm. on the Judiciary, 108th Cong., 1st Sess. (2003).

(19.) United States, 407 U.S. 297, 314.

(20.) The USA Patriot Act: Preserving Life & Liberty, supra note 4.

(21.) In Defense of the Patriot Act, PITT. POST GAZETTE, Aug. 31, 2003, at B3.

(22.) Eric Lichtblau, Ashcroft Says Efforts to Weaken Terrorism Law Will Place Americans at Greater Risk, N.Y. TIMES, Aug. 20, 2003, at A14.

(23.) S. 1552, 108th Cong., 1st Sess. (2003).

(24.) Ex parte Milligan, 71 U.S. (4 Wall.) (1866).

(25.) Toyosaburu Korematsu v. United States, 323 U.S. 214, 220 (1944).

(26.) Kennedy v. Mendoza Martinez, 372 U.S. 144, 165 (1963).

RICHARD A. GLENN is associate professor of government and political affairs at Millersville University in Millersville, Pennsylvania. He is the author of The Right to Privacy: Rights and Liberties Under the Law (2003).