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The USA PATRIOT Act is a statute enacted by the United States Congress that President George W. Bush signed into law on October 26, 2001. The contrived acronym stands for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism" Act. The Act increases the ability of law enforcement agencies to search telephone, e-mail communications, medical, financial, and other records; eases restrictions on foreign intelligence gathering within the United States; expands the Secretary of the Treasury's authority to regulate financial transactions, particularly those involving foreign individuals and entities; and enhances the discretion of law enforcement and immigration authorities in detaining and deporting immigrants suspected of terrorism-related acts. The act also expands the definition of terrorism to include domestic terrorism, thus enlarging the number of activities to which the Act's law enforcement powers can be applied (Doyle, 2002).
Supporter of the Act indicate nothing is more important than preventing another catastrophic terrorist attack on Americans. They point to the 9/11 Commission's findings that law enforcement and intelligence operations can be improved to prevent a recurrence. The Commission emphasized the importance of the Act, stating it is an essential weapon in the nation's global war on terrorism (Carafano & Rosenzweig, 2004). As it applies to the gathering of a wide array of intelligence, supporters believe the Act helps to reduce problems regarding the ability of law enforcement agencies to work together and to obtain information from each other, it eliminates some of the road blocks that made acquiring or disseminating information between agencies legally difficult and often impossible, and it created avenues for intelligence operations to be expanded to include all law enforcement organizations.
Those opposed to the Patriot Act would disagree, saying that intelligence operations should not be expanded further as there is a certain and significant negative effect on civil liberties from such operations. The Act has been criticized for weakening protections of civil liberties, as well as being overboard in regard to its circumstances of application. In particular, opponents of the law have criticized its authorization of indefinite detentions of immigrants; searches through which law enforcement officers search a home or business without the owner's or the occupant's permission or knowledge; the expanded use of National Security Letters, which allows the FBI to search telephone, email and financial records without a court order; and the expanded access of law enforcement agencies to business records, including library and financial records. It is noteworthy that since its passage, several legal challenges have been brought against the act, and Federal courts have ruled that a number of provisions are unconstitutional (Cole, 2003).
The ACLU implies the Act was adopted in a hasty manner by pointing out it was passed a mere forty-five days after the 9/11 attacks, and that Congress passed the Act with virtually no debate. They believe there are significant flaws in the Act that threaten fundamental freedoms by giving the government the power to access to your medical records, tax records, information about the books you buy or borrow, and the power to break into your home and conduct secret searches without telling you for weeks, months, or indefinitely (American Civil Liberties Union, 2003).
In an attempt to clarify some of the issues and/or advantages stemming from the Act, the following sections have been identified as being most applicable (Abramson & Godoy, 2006).
"Sneak & Peek" Warrants - Section 213 allows search warrants to be issued to authorities permitting them to search a home or business without immediately notifying the target of a probe. Supporters indicate that in some fashion this provision already existed and has allowed investigators to search the houses of drug dealers and other criminals without providing notice that might have jeopardized an investigation. Critics say the provision allows the use of "sneak and peek" warrants for even minor crimes, not just terror and espionage cases.
Access to Records - Section 215 allows easier access to business records in foreign intelligence investigations. Advocates say the provision allows investigators to obtain books, records, papers, documents and other items sought in connection with a terror investigation. Critics attack the breadth of the provision, saying the law could be used to demand things as trivial as the reading records of library or bookstore patrons.
Information Sharing - Section 203 allows information from criminal probes to be shared with intelligence agencies and other parts of the government. Supporters say the provisions have greatly enhanced information sharing within the intelligence community at large. Critics warn that unrestricted sharing could lead to the development of massive databases about citizens who are not the targets of criminal investigations.
An additional factor that needs to be considered is the enormity of the task at hand. While al-Qaeda has garnered much of the media attention in the past several years, there are other international and domestic groups that could successfully threaten the security of the United States. The U.S. State Department currently lists forty-six organizations as Foreign Terrorist Organizations (FTO) (U. S. Department of State, 2008). Most of these organizations are considered either religious or political extremists in nature, and while all of them do not all have as their primary goal an attack on the United States, many would consider that a worthy goal. The designation as an FTO enables the U.S. Government to address the group under the terms of the Patriot Act, allowing much broader surveillance and control measures to be enacted.
The Office of the Director of National Intelligence (ODNI) estimates the U.S. Homeland will face a persistent and evolving terrorist threat over the next three years. The main threat comes from Islamic terrorist groups and cells, especially al-Qaeda, driven by their undiminished intent to attack the Homeland and a continued effort by these terrorist groups to adapt and improve their capabilities (Office of the Director of National Intelligence, 2007). They acknowledge the fact that worldwide anti-terrorist efforts have most likely constrained the ability of terrorist groups to attack the U.S. Homeland since 9/11, but they caution that significant plots to do so have been disrupted and as the level of international cooperation wanes in coming years the severity of this threat will increase. The ODNI indicates intelligence collected supports that al-Qaeda continues to focus effort on attacking prominent political, economic, and infrastructure targets with the goal of producing mass casualties, visually dramatic destruction, significant economic aftershocks, and/or fear among the U.S. population. The group is proficient with conventional small arms and improvised explosive devices, and is innovative in creating new capabilities and overcoming security obstacles. Perhaps the greatest threat from al-Qaeda is their continued efforts to acquire and employ chemical, biological, radiological, or nuclear material in attacks and would not hesitate to use them if it develops what it deems is sufficient capability. The ODNI further designated members of the Lebanese Hizballah, which has conducted anti-US attacks outside the United States in the past, as a significant threat to the Homeland. They assessed that other, non-Muslim foreign and domestic terrorist groups-often referred to as "single-issue" groups by the FBI-are an ever present threat for conducting attacks given their violent histories, but this violence is likely to be on a smaller scale.
With the significant threat posed by terrorist organizations against the United States, it would seem only logical that all available law enforcement assets would be pressed into service to combat the threat. As highlighted in other portions of this research document, prior to 9/11 state and local law enforcement were concerned primarily with the response to and the prevention of crime. After 9/11, many felt the focus should shift toward being the "eyes and ears" of the larger federal anti-terrorism effort. The enormity of the task would seems to mandate that the 600,000 law enforcement officers in service throughout the nation today would be called upon to actively engage them in the fight against terrorism. In addition, there is precedent for this approach. The "War on Drugs" has already produced a model national police intelligence gathering and dissemination system which can be shifted to concentrate on terrorism (White, 2004).
So then why is there debate on the topic? As White points out, there are several dilemmas facing law enforcement. With respects to the Patriot Act, the largest is the question of authority - how much is given to law enforcement under the Act and whether such authority is constitutionally permissible or publically acceptable. Local law enforcement has engaged in intelligence gathering operations before the Act, but those operations were normally restricted to specific crime problems. In addition, any searches conducted required the establishment of probable cause and the oversight of a neutral third party, normally a judicial officer. Since the Act's passage, local law enforcement can now be tasked to monitor an array of targets that goes far beyond any previously contemplated as being within their scope of authority. These could include local religious institutions, local ethnic factions, special interest groups, political parties, etc. In addition, the surveillance can now be conducted with much less oversight of judicial authorities. This unchecked power is considered by some to be a threat to democracy and conjures up images of a police state. These activities will also take local law enforcement away from the duties they are already challenged with. The potential community conflicts that can occur as a result of local law enforcement taking an active role in this type of intelligence gathering operation is counterproductive to their primary goal of providing a safe community.
In summary, the current "War on Terror" is more of a shadow war than a traditional war as was defined by Clausewitz. The terrorists are inclined to use asymmetrical warfare tactics due to the overwhelming superiority of our military. Thus, they choose to engage in a battle to undermine the confidence of the nation by attempting to demonstrate our inability to protect our citizens in their everyday lives. There are times when conventional military tactics can be used to destroy terrorist bases, but there are other times when information gathering, criminal investigation, and arrest are far more effective (White, 2004). As such, there is a strong argument to be made for employing our vast law enforcement infrastructure in a counter-terrorism effort to exploit our strengths, uncover their weaknesses, and eliminate any advantages that the terrorists' asymmetrical tactics afford them. If this can be accomplished while maintaining an ever abiding respect for the Bill of Rights, and adhering to the high moral standards our country has long enjoyed, I believe we can win the war on terror and come out of it with a country we are still proud to call home.