The full name of the act is the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.
On September 11, 2001, the United States was the victim of the most lethal domestic terrorism attack in its history. Commercial airliners used as missiles destroyed the World Trade Center in New York City and damaged the Pentagon, and a terrorist-hijacked plane crashed in rural Pennsylvania, failing to hit its Washington, D.C., target. More than 3,000 civilians and emergency responders died. These events fueled urgent widespread demand for improved law enforcement powers to prevent future domestic terrorism. According to House members involved, legislative proposals were drafted in secret over a weekend by Attorney General John Ashcroft, the Department of Justice, and the U.S. House leadership. On October 23, 2001, House Resolution 2975, known as the PATRIOT Act (Provide Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001), was submitted. On the next day, October 24, 2001, Senate Bill 1510, the “USA Act” (Uniting and Strengthening America Act of 2001) was submitted.
Under expedited legislative processes, the bills were approved by near-unanimous bipartisan majorities in the Senate (98–1) and U.S. House (357–66) with little debate. Congress members voted the 400-plus page bill into law without even having an opportunity to read it, as the Government Printing Office finished printing it just one hour before the congressional votes. The compromise bill, known as the USA PATRIOT Act of 2001 (Public Law 107–56), was signed into law by President George W. Bush two days later on Saturday, October 26, 2001.
- 1THE USA PATRIOT ACT OF 2001
- 2CRITICISMS OF THE USA PATRIOT ACT
- 3CURRENT IMPLEMENTATION OF USA PATRIOT ACT CAUSES LOCAL GOVERNMENT FISCAL HARDSHIP
THE USA PATRIOT ACT OF 2001
The USA PATRIOT Act of 2001 (hereafter, the act) is a very lengthy complex law with ten major sections (titles) and 1,016 subsections. Its stated purpose is “to deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes.” The “other purposes” provision of the act has resulted in significant controversy. Critics argue it has the potential to be used too widely against American citizens in criminal and noncriminal cases unrelated to terrorism or national security issues.
Major provisions of the act include Title I, “Enhancing Domestic Security against Terrorism”; Title II, “Enhancing Surveillance Procedures,” including the expansion of the National Electronic Crime Task Force Initiative; Title III, provisions against international money laundering to finance terrorism; and Title IV, “U.S. Border Protection.” Title V, “Removing Obstacles to Investigating Terrorism,” includes police conducting DNA testing of all violent offenders, disclosure of education (and library) records to the FBI, and paying “rewards” to terrorism informants. Title VI provides aid to terrorism victims and the families of public safety officers; Title VII increases federal, state, and local law enforcement information sharing; and Title VIII defines, strengthens, and increases penalties for terrorism. Title IX is designed to improve and coordinate federal intelligence gathering, and Title X provides various definitions, including the expansion of “electronic surveillance.” It also provides funding for bioterrorism preparedness/response.
According to the Department of Justice’s (DOJ) 2004 report The USA Patriot Act at work, the act “set out to update, strengthen, and expand laws governing the national commitment to the protection of civil rights and civil liberties.” The DOJ identified four areas in which the act has had the greatest [positive] impact: “(1) enhancing the federal government’s capacity to share intelligence; (2) strengthening the criminal laws against terrorism; (3) removing obstacles to investigating terrorism and (4) updating the law to reflect new technology” (DOJ 2004, 1). Shared intelligence has “brought down the wall separating intelligence from law enforcement and greatly enhanced foreign intelligence information sharing among federal law enforcement and national security personnel, intelligence agencies, and other entities entrusted with protecting the nation from acts of terrorism” (DOJ 2004, 29).
CRITICISMS OF THE USA PATRIOT ACT
Removing obstacles to investigating terrorism, and specifically Title II, “Enhanced Surveillance Procedures,” have resulted in harsh criticism of the act. Title II, Subsection 218, significantly amended the 1978 Foreign Intelligence Surveillance Act of 1978 (FISA), substantially relaxing (weakening) requirements for court orders when using electronic surveillance (or telephone taps). The DOJ has applied this in suspected terrorism cases and also in other non-terrorism-related criminal cases. Civil liberty champions argue the act has gone too far, violating citizens’ guarantee from unreasonable search and seizures (Fourth Amendment) and privacy provisions (implied in the Ninth Amendment) under the U.S. Constitution.
Many are concerned that the act provides the DOJ new powers to prosecute activities unrelated to terrorism. Borrower records, bookstore records, and even Internet searches by students or others using public or university library facilities can be secretly collected by the FBI under Section 215 of the act. Businesses unrelated to domestic or international terrorism have had their financial files and records seized for investigation under Section 314 of the Act. Even the DOJ Report on the act concludes, “It [the Act] has helped the Department [DOJ] to combat serious criminal conduct, such as child abduction and child pornography” (DOJ 2004).
CURRENT IMPLEMENTATION OF USA PATRIOT ACT CAUSES LOCAL GOVERNMENT FISCAL HARDSHIP
The USA PATRIOT Act provided over $3.3 billion during fiscal years 2002–3 in three types of two-year block grants to states; State Domestic Preparedness Grants (2002), Omnibus and Supplemental State Homeland Security Grants (2003), and Omnibus and Supplemental Urban Area Security Initiative Grants (2003). These grants were distributed to states (and Native American tribes) for reimbursement distribution to local governments for costs in purchasing security equipment, training personnel, planning response and preventive operations, administration, and conducting drill exercises. The act also contains law enforcement data-reporting and information exchange requirements that are costly to local governments. Local governments must expand personnel and computer systems, and conduct universal DNA testing of all violent offenders.
But these provisions have remained largely unfunded or been only partially funded at the local level. According to the U.S. Conference of Mayors, as late as September 2003 (two years after the initial attacks) 90 percent of local governments had received no funding under the federal homeland security program. This leaves local governments with unfunded mandates (legal requirements from higher levels of government, but no money to implement them). This has further aggravated financial strain on local governments and their law enforcement agencies.
According to the third annual Homeland Security Report issued by the U.S. Conference of Mayors in June 2004, more than half (52 percent) of “cities surveyed are still left empty-handed, have not received any money, nor have been notified that they will receive money from the state-block grant program, designed to assist first responders such as police, fire, and other local officials” (Spears and Temple 2004).
More than 200 local governments, including both Washington, D.C., and New York City—sites of the September 11, 2001, terrorist attacks—and 4 states have passed non-binding resolutions calling for the new USA PATRIOT Act to be significantly revised to limit its scope and negative financial impacts on them. In response, the U.S. Department of Homeland Security’s task force’s advisory council, in its unanimously adopted June 2004 report, acknowledged widespread continuing fiscal problems reimbursing local governments and called for homeland security block grants to become exempt from the Cash Management Act of 1990. This would permit greater flexibility to grantees, encourage regionalization, streamline and speed up the grant process, reduce delays in payment, and permit statewide procurement contracts allowing local governments to purchase equipment and services from state-negotiated lower-priced contracts—avoiding reimbursement issues.
Sara S. Beale and James E. Felman, “The Consequences of Enlisting Federal Grand Juries in the War on Terrorism: Assessing the USA Patriot Act’s Changes to Grand Jury Secrecy,” Harvard Journal of Law and Public Policy 25, no. 2 (Spring 2002); Rhonda Spears and Elena Temple, “Mayors Release New Homeland Security Survey in Boston at 72nd Annual Meeting,” press release, June 25, 2004; Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Public Law No. 107-56, 115 Stat. 272 (2001); and U.S. Department of Justice, Report from the Field: The USA Patriot Act at Work (Washington, DC: U.S. Government Printing Office, 2004).