Patriotism and the Patriot Act
The USA PATRIOT Act, a 342-page statute, which stands for The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism, has not fulfilled its promise to the public despite its positive efforts. Since its inception, the USA PATRIOT Act has actually done more to create distrust for the government by the very citizens the act is attempting to protect than to hunt down and prosecute those who have caused this justified trepidation.
Specific sections of the act, put in place with the intent to safeguard the country and its people, have resulted in a general feeling that basic constitutional rights are being denied. Many are up in arms in regard to its ability to squelch many privileges offered by the Bill of Rights and the U.S. Constitution. The ACLU and other civil liberty groups have rallied against its implementation and will continue to do so until Americans’ basic freedoms have been restored. The freedom of speech, right to privacy and the freedom of the press are privileges that this nation promises to its people and are the very privileges that are considered in jeopardy. In particular, opponents claim that the first, fourth, fifth, and sixth amendments are in violation and that the pursuit of terrorist activity should not override the core foundations of what makes this country great.
Americans’ liberties have been trampled in a variety of different ways. Under the guise of stopping terrorism, law enforcement officials and government leaders have now been given the right to conduct searches of homes and offices without prior notice, use roving wiretaps to listen in on telephone conversations, and monitor computers and e-mail messages, even to the degree of eavesdropping on attorney/client conversations. In addition, the President has made efforts to bring suspected terrorists into military tribunals for prosecution (1).
President Bush and the Congress offered law-enforcement agencies greater ease when requesting these types of activities with the explanation that, when time is of the essence, authorities may not have the luxury to wait for permission to be granted via standard avenues. Their idea is that cutting through the red tape shouldn’t be a hurdle to overcome when national security is on the line, regardless of the innocent that may be caught in the mix. While justification for these types of infringements may seem to help when understanding why the USA PATRIOT Act was created, it is still a hard pill to swallow when innocent citizens are robbed of their basic freedoms.
With a Big Brother-type shadow looming over the daily lives of U.S. citizens, Americans must be mindful that while the security of husbands, wives, children, and friends may be worth some limitations placed on American freedoms, even small infringements, over time, may become major compromises that alter this country’s way of life (1).
Alongside the general population, journalists are also just as worried that their livelihood – reporting the news to the public – may be in jeopardy. Some feel that, inevitably, their efforts in gathering news will be affected, leaving the United States as a whole in the dark in regard to a myriad of stories ranging from basic current affairs to undercover government activity.
In order to inform the public through newspapers, magazines and other news outlets, reporters must conduct research in order to relay all angles of a story. The essential components of the research may be, and are normally, conducted through internet searches or via interview. Currently, under the provisions of the USA PATRIOT Act, utilizing both of these methods may land a journalist in the midst of federal interrogation.
Previously, wiretaps required law-enforcement officials to go to great lengths in order to place surveillance devices on the telephones of various suspects. Today, however, under the USA PATRIOT Act, similar intrusive measures are quite simple to secure. It is now easier for investigators to eavesdrop on a terrorism suspect’s telephone calls and e-mail communications with so-called “roving” wiretaps. Because of that change, reporters may run a heightened risk of having their telephone or e-mail conversations with sources intercepted by government agents if those sources are deemed “agents of a foreign power” (3). Due to the facility of implementing such investigative techniques, anonymous sources will become leery when considering phone interviews and the like. As long as such subjects are knowledgeable of the government’s ability to apply this type of surveillance, which is now easily attainable to law-enforcement agencies, journalists will discover the number of sources to quickly be depleted – one of the many chilling effects that may result from the act.
In the same vein, the USA PATRIOT Act allows government officials to demand internet-use records, held by librarians for their patrons’ Web activity. Although most reporters do use personal computers at the office, there are instances where a journalist could be ensnared by Section 215 of the Act.
Section 215 is one of the surprising lightning rods of the Patriot Act, engendering more protest, lawsuits, and congressional amendments than any other. In part this is because this section authorizes the government to march into a library and demand a list of everyone who’s ever checked out a copy of “My Secret Garden”âÂ?¦(5).
For the majority, the large majority, journalists have nothing to fear, if and when an FBI agent shows up at his or her publication demanding why a reporter “hit” a specific Web site. Some information obtained on the internet may raise flags to federal investigators, due to security related subject matter, and oftentimes, the reporter was researching the Web site in order to use other information contained in the same location. If a journalist was, for example, researching a controversial scandal involving the poor construction of a water treatment plant, he or she may need to look at the facility’s floor plans or design. In these cases it would not take much time or explanation to understand that the journalist was not downloading the site plans in order to tamper with the facility or its water, but simply needed to further grasp what an architect or owner was relaying during an interview.
In the past, journalists could rely on The Privacy Protection Act, which states that, federal and state officers and employees are prohibited from searching or seizing a journalist’s work product or documentary materials in the journalist’s possession (2). Previously the government needed at least a warrant and probable cause to access private records (5), but thanks to, or rather unfortunately because of The USA PATRIOT Act, this is no longer the case. Under current implementation, the Act allows for newsroom searches without proof of probable cause – or even reasonable grounds to believe – that the person whose records it seeks is engaged in criminal activity (2).
In addition to being subjected to these types of forcible searches, The USA PATRIOT Act clearly violates the first amendment’s freedom of speech, while at the same time prohibiting the “accused” individual the right to disclose that the search and seizure even took place. As of yet, no newsrooms are known to have been searched and apparently no documents have been taken from reporters under the law – although those subject to such a search and seizure would be prohibited from talking about it (3).
Although news publications are in the clear at this point, these types of interruptions in a newsroom could greatly disrupt the daily production of any publication on deadline and without doubt cannot be tolerated. If investigators exercised this right, afforded only by the USA PATRIOT Act, as often as they deemed necessary, this intrusion alone could bring any news outlet to a screeching halt.
A final instance in which journalists are discovering that their jobs are not as they were prior to the USA PATRIOT is seen through the increased number of military tribunals. Since the terrorist attacks on 9/11 the government has succeeded in closing habeas corpus proceedings (hearings that involve the government’s justification for detention) in federal courts for scores of usually Arab men who were swept up and imprisoned because they may have information relating to terrorist activities (7). Previously, the media was allowed to attend military tribunals, however, under the USA PATRIOT Act, many of these courts are being closed to the public. If classified information is employed during a hearing, it is likely that that portion of the trial will be inaccessible to reporters, as well. Whether or not these hearings will enjoy the same presumption of openness that other military trials enjoy has not been completely determined (7).
The basic argument to the closing of court cases is the media’s inability to report on government activity. The journalist’s absence creates difficulty in reporting on important tribunals, which may be pivotal to winning the war on terrorism or at least getting a step closer to those who are to blame. Without the reporter, Americans have no security as to whether the right guys are being brought to justice or whether the government is just stringing the public along.
One would have to hope that the infringing on basic freedoms for journalists and the American society would never have been implemented under any other circumstance. The days following Sept. 11 were chaotic and emotional and at that time any measure of security seemed necessary, apparently even if the Bill of Rights would have to take a backseat to civil defense. In fact, many of these provisions were proposed and rejected by Congress during the Clinton administration, but in the wake of the Sept. 11 attacks, most members of Congress put aside their scruples and voted in favor of the statue. Given the length and complexity of the legislation, and the speed with which it was enacted, it is reasonable to ask how many of them actually read it first (4).
Again, journalists can’t even report on the act itself due to the government’s desire to keep its implementation in complete secrecy. Almost two years after passage of the USA PATRIOT Act, little is known about how the law is being used to track terrorists or innocent Americans. The Justice Department has foiled numerous attempts by lawmakers and civil libertarians to learn how the Administration has deployed new tools granted under the Act. Congressional hearings this spring yielded virtually no new information about the number of times individuals’ library records have been sought or how many court orders have been obtained to watch someone’s computer activities or conduct other surveillance on U.S. citizens. Just officials claim that even generic numbers are classified, and are provided confidentially only to congressional intelligence committees (6).
While holding the government accountable for its actions seems difficult, and at the same time, while freedoms seem to be slipping through American fingertips, citizens felt that hope may have been just around the corner in the form of the Sunset clauses. Sunset clauses, which were supposed to cause portions of the act to expire on Dec. 31, 2005, have recently been the lights shining at the end of the tunnel, but now it seems that they are dimming.
President Bush and his proponents worked hard to push Patriot Act II into action. This pseudo addendum to the original carried even heavier limits to the press and their rights previously protected by the first amendment. As was true with the difficulties in researching caused by the first act, its offspring seems to reinforce what was earlier deemed unconstitutional by many. Section 201 states that law enforcement does not even have to tell the press who they have arrested and they never have to release the name (8). The sequel again puts newsrooms at risk for offering the ability of carrying out searches with no prior court approval, (8) found in section 106.
The most bone-chilling portion of Patriot Act II can be found in section 102, and journalists are its prime target. Section 102 states clearly that any information gathering, regardless of whether or not those activities are illegal, can be considered to be clandestine intelligence activities for a foreign power. This makes news gathering illegal (8). Although this interpretation of section 102 is probably being sensationalized, there is concern that journalism will be monitored to the point where the public’s right to know will be limited.
Unfortunately, the future for journalists and Americans alike looks bleak in regard to the USA PATRIOT Act, Patriot Act II and their abilities to limit constitutional freedoms, granted by the founding fathers more than 200 years ago. Ashcroft and his roadies call the changes in law “modest and incremental.” Since almost nobody has read the legislation, much of what we think we know about it comes third-hand and spun. Both advocates and opponents are guilty of fear-mongering and distortion in some instances (5).
If Americans keep their noses clean, there is no reason for worry, however, journalists and U.S. citizens do need to ensure that they properly inform themselves on as much government activity as possible. The nation may not be in a Big Brother situation yet, but the USA PATRIOT Act and Patriot Act II do make one wonder what the future has in store for American civil liberties.
1. Forfeiting ‘Enduring Freedom’ for ‘Homeland Security’: A Constitutional Analysis of the USA PATRIOT Act and the Justice Department’s Anti-Terrorism Initiatives: http://www.ratical.org/ratville/CAH/CAofUSAPA.html. Found on a google search specifically entering the name of this report, after reading about it in an article posted on poynter.org.
2. Questions for Attorney General John Ashcroft on the USA PATRIOT Act and its effect on the news media: http://foi.missouri.edu/usapatriotact/questions.html. Found on a google search looking for “USA PATRIOT Act and the effect on journalism.”
3. The USA PATRIOT Act and beyond: http://www.rcfp.org/homefrontconfidential/usapatriot.html. Found this website/article after “googling” USA PATRIOT Act and the effect on journalism.
4. The USA PATRIOT Act: How Patriotic Is It?: http://www.silha.umn.edu/winter2002.htm. Found after “googling” USA PATRIOT Act + effects on media.
5. A Guide to the Patriot Act, Part 1: Should you be scared of the Patriot Act?: slate.msn.com/id/2087984. Found after searching the Slate.com website, specifically looking for the USA PATRIOT Act.
6. The Impact of the USA PATRIOT Act: An Update: http://www.fepproject.org/commentaries/patriotactupdate.html. Found after “google searching” USA PATRIOT Act and the freedom of speech.
7. Mass Media Law: Chapter 11, Free Press/Fair Trial: Closed Judicial Proceedings.
8. Patriot Act – the sequel: http://santacruz.indymedia.org/newswire/display/4306/index.php. Found after “googling” USA PATRIOT Act + news gathering.
