Posted Monday, September 8, 2003, at 8:06 AM PT

What's hot for fall of 2003?

Well, the USA Patriot Act, for one thing. Although it passed in Congress almost without dissent in the aftermath of Sept. 11, it's suddenly being revisited, and this time around some of the folks holding opinions have actually read the thing. Among its detractors are 152 communities, including several major cities and three states, that have now passed resolutions denouncing the Patriot Act as an assault on civil liberties. More than one member of Congress has introduced legislation taking the teeth out of its most invasive provisions. And in a huge shock to the Justice Department, in July the so-called "Otter Amendment"—which de-funded the act's "sneak-and-peek" provision—passed in the House by a vote of 309-118. Introduced by a conservative Republican congressman from Idaho, C.L. "Butch" Otter, the amendment revealed the extent to which the Patriot Act engenders jitters across the political spectrum. Then there are the lawsuits, including one filed recently by the ACLU, urging the court to invalidate provisions of the act that threaten privacy or due process. All these reforms are wending their way through the system and the national consciousness as Americans start to take a sober second look at what the act really unleashed.

On the other hand, there's the John Ashcroft "Patriot Rocks" concert tour, launched last month, which has him visiting 18 cities and talking up the act to local law enforcement officials. The DOJ also unloosed a new Web site last month, designed to shore up support for the act. Ashcroft contends that had the Patriot Act been in place earlier, 9/11 wouldn't have happened and that absent a Patriot Act, the country may have seen more 9/11s over the past two years—a double-double negative that's unprovable, but enough to scare you witless. There have also been a raft of op-eds and articles—some evidently written by Ashcroft's U.S. attorneys at knifepoint—simultaneously making the point that the act has staved off unspeakable acts of terror while maintaining that it made only tiny infinitesimal changes to the existing laws.

Part of the impetus for all the new activity is that some of the really great bits of the act are set to sunset in 2005, and some epublican senators are planning to introduce legislation to repeal the sunset provisions altogether. Copies of "Patriot II"—the act that was intended to follow Patriot and grant the government even broader powers—were leaked to the press last winter, and while the ensuing ruckus ensured that Patriot II is dead, much of it will evidently rise again this fall in the guise of the VICTORY Act, Orrin Hatch's attempt to deploy Patriot powers in the war on drugs. One of the reasons that Patriot is fighting for its life, then, is so that its creepy progeny may someday live as well.

How bad is Patriot, really? Hard to tell. The ACLU, in a new fact sheet challenging the DOJ Web site, wants you to believe that the act threatens our most basic civil liberties. 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.

The truth of the matter seems to be that while some portions of the Patriot Act are truly radical, others are benign. Parts of the act formalize and regulate government conduct that was unregulated—and potentially even more terrifying—before. Other parts clearly expand government powers and allow it to spy on ordinary citizens in new ways. But what is most frightening about the act is exacerbated by the lack of government candor in describing its implementation. FOIA requests have been half-answered, queries from the judiciary committee are blown off or classified. In the absence of any knowledge about how the act has been used, one isn't wrong to fear it in the abstract—to worry about its potential, since that is all we can know.

Ashcroft and his supporters on the stump cite a July 31 Fox News/Opinion Dynamics Poll showing that 91 percent of registered voters say the act had not affected their civil liberties. One follow-up question for them: How could they know?

If you haven't read all 300-plus pages of the legislation by now, you should. If you can't, in the following four-part series, Slate has attempted to summarize and synthesize the most controversial portions of the act so you can decide for yourself whether you want Patriot, and the Patriots that may follow, to be a part of your world. Part 1 tackles Section 215, the law dealing with private records. Part 2 will address changes to the Foreign Intelligence Surveillance Act, or FISA, and "sneak and peek" warrants. Part 3 will discuss new electronic surveillance, and Part 4 will discuss miscellaneous provisions, including alien detentions.

Section 215, aka "Attack of the Angry Librarians"

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 but also because those librarians are tough.

What it does: Section 215 modifies the rules on records searches. Post-Patriot Act, third-party holders of your financial, library, travel, video rental, phone, medical, church, synagogue, and mosque records can be searched without your knowledge or consent, providing the government says it's trying to protect against terrorism.

The law before and how it changed: Previously the government needed at least a warrant and probable cause to access private records. The Fourth Amendment, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, and case law provided that if the state wished to search you, it needed to show probable cause that a crime had been committed and to obtain a warrant from a neutral judge. Under FISA—the 1978 act authorizing warrantless surveillance so long as the primary purpose was to obtain foreign intelligence information—that was somewhat eroded, but there remained judicial oversight. And under FISA, records could be sought only "for purposes of conducting foreign intelligence" and the target "linked to foreign espionage" and an "agent of a foreign power." Now the FBI needs only to certify to a FISA judge—(no need for evidence or probable cause) that the search protects against terrorism. The judge has no authority to reject this application. DOJ calls this "seeking a court order," but it's much closer to a rubber stamp. Also, now the target of a search needn't be a terror suspect herself, so long as the government's purpose is "an authorized investigation ... to protect against international terrorism."

Downplaying the extent of these changes, the DOJ argued to Congress that 215 is no big deal, since grand juries could always subpoena private records in the past. The difference they don't acknowledge is that investigators may now do so secretly, and these orders cannot be contested in court. While the new DOJ Web site asserts that searches under 215 are limited to "business records," the act on its face allows scrutiny of "any tangible thing" including books, records, papers, documents, and anything else. The site also says U.S. citizens may not be subject to search, but the act does not differentiate. How can it, when a library or doctor's office is simply asked to produce a list of names? And here is where the Justice Department hedges: It claims that a citizen cannot be searched "solely on the basis of activities protected by the First Amendment to the Constitution." That means you can't have your records searched solely because you wrote an article criticizing the Patriot Act. But if you are originally from India and write that article, well, that's not "solely" anymore is it? To be sure, the ACLU is doing a bit of fearmongering when it says the DOJ can rifle through your records if they don't like what you're reading. If you're a U.S. citizen and not otherwise suspicious, you're probably safe, so long as all you do is read.

When the judiciary committee, inquiring into the civil liberties implications of Patriot, asked about 215, the DOJ said in July 2002: "Such an order could conceivably be served on a public library, bookstore, or newspaper, although it is unlikely that such entities maintain those types of records. If the FBI were authorized to obtain the information the more appropriate tool for requesting electronic communication transactional records would be a National Security Letter." But as we will explain in Part 4, the government's NSL authority was also beefed up by the Patriot Act. In other words, the government may simply have a more effective means of conducting warrantless searches than the one everyone's riled up about.

How it's been implemented: The DOJ is playing this one particularly close to the vest. The act itself mandates semiannual reporting by the attorney general to Congress, but the only thing he must report is the number of applications sought and granted. Not very helpful unless that number is zero …

When asked by the House Committee on the Judiciary to detail whether and how many times Section 215 has been used "to obtain records from a public library, bookstore, or newspaper," the DOJ said it would send classified answers to the House Permanent Select Committee on Intelligence. The judiciary committee had what it called "reasonable limited access" to those responses, and it reported in October 2002 that its review had "not given any rise to concern that the authority is being misused or abused."

Wanting to learn more, the ACLU and some other civil rights groups filed a FOIA request, arguing that the DOJ was classifying its answers unnecessarily. But this May, a federal judge in U.S. district court in Washington ruled that the DOJ had the right to keep the specifics hush-hush under FOIA's national security exemption. The next day, at a judiciary committee hearing, Assistant Attorney General Viet Dinh did throw a bone to librarians, noting that in "an informal survey of the field offices," Justice learned "that libraries have been contacted approximately 50 times, based on articulable suspicion or voluntary calls from librarians regarding suspicious activity." He did not give specifics on searches of any other establishments.

Independent attempts to chronicle the frequency of records searches have proved inconclusive. Within months after Sept. 11, federal or local officials visited nearly 10 percent of the nation's public libraries "seeking Sept. 11-related information about patron reading habits," according to a University of Illinois survey. But since librarians are gagged under the act, it's not clear that these reports are accurate. In any event, the same study suggests that about 13.8 percent of the nation's libraries received similar requests in the year before Sept. 11, so it's impossible to say that the problem was exacerbated by the new law.

Would you know if Section 215 had been used on you? Nope. The person made to turn over the records is gagged and cannot disclose the search to anyone.

Sunsets in 2005: Yes.

Prognosis: The first lawsuit against the Patriot Act was filed by the ACLU on July 30 this year, targeting Section 215. The suit has six mostly Arab and Muslim American groups as plaintiffs. Their claim is that 215 violates the Constitution and "vastly expands the power of the [FBI] to obtain records and other 'tangible things' of people not suspected of criminal activity."

In Congress, Rep. Bernard Sanders has proposed the Freedom to Read Protection Act to repeal provisions that subvert library patrons' privacy, and in July 2003 Sens. Lisa Murkowski and Ron Wyden introduced the Protecting the Rights of Individuals Act, requiring FBI agents to convince a judge of the merits of their suspicions before obtaining an individual's medical or Internet records. Similarly, Sen. Russ Feingold's Library, Bookseller and Personal Records Privacy Act would allow FBI access to business records pertaining to suspected terrorists or spies only. Feingold's bill would restore the pre-Patriot requirement that the FBI make a factual, individualized showing that the records sought pertain to a specific suspected terrorist.

Enough to get you through a cocktail party: 215 does extend FBI power to conduct essentially warrantless records searches, especially on people who are not themselves terror suspects, with little or no judicial oversight. The government sees this as an incremental change in the law, but the lack of meaningful judicial oversight and expanded scope of possible suspects is pretty dramatic.

A Guide to the Patriot Act, Part 2

Should you be scared of the Patriot Act?

By Dahlia Lithwick and Julia Turner

Posted Tuesday, September 9, 2003, at 3:30 PM PT

This is the second of a 4-part series about what's really in the USA Patriot Act.

Section 218 aka "FISA: It's everywhere you don't want to be"

Section 218 amends the Foreign Intelligence Surveillance Act, a "bargain" struck in 1978 wherein the usual requirements for a police search—probable cause to believe a criminal act had occurred and a warrant—would be unnecessary in a teeny, tiny number of cases. That teeny, tiny number of cases just expanded dramatically.

What it does: Secret searches can now be authorized by a secret court without public knowledge or Department of Justice accountability, so long as the government can allege there is any foreign intelligence basis for the search.

The law before and how it changed: In 1978 the Foreign Intelligence Surveillance Act created an exception to the Fourth Amendment's "probable cause requirement" for physical searches, wiretaps, and subpoenas of business records. FISA created a secret court that granted search warrants so long as a pleading before a closed court asserted that the "primary purpose" of the search or wire tap was to gather foreign intelligence. The warrant needn't be based on a suspicion of criminal behavior. But the target had to be "linked to foreign espionage." In theory, American citizens were safe unless they were suspected "agents of a foreign power." A good indicator of the objectivity of the FISA court: It rejected only five of the 14,000 warrant applications it received before 2001, although it recently became clear that many of those warrants were based on false allegations. The FISA court is not supposed to second-guess the government. These are not adversarial proceedings. Nor does the FISA court maintain ongoing oversight over the surveillance. Patriot amends FISA to allow searches when "a significant purpose" is intelligence-gathering. Not "primary," but significant. Now you can be subject to secret searches authorized by a secret court so long as there is any foreign intelligence component (and increasingly, drug-related offenses are deemed to have a terrorist component). Moreover, the party to be searched need not be connected to foreign espionage anymore. It's enough that the government may merely learn something about a terror investigation. Section 207 of the act lengthens the durations of FISA warrants to as long as 120 days in some cases. Finally, under the pre-Patriot FISA and Title III, fruits of FISA search warrants could be used only for information-gathering, not for prosecution. But now intelligence information obtained using FISA's lower standards for probable cause can be passed along for prosecution purposes.

How it's been implemented: Since Patriot expanded the small number of cases in which a FISA court might authorize a search warrant, the number of warrants issued has, unsurprisingly, risen slightly. The FISA court approved 1,228 applications for warrants in 2002, up from 934 in 2001 and 1,012 in 2000. (The number of warrants issued was consistently below 1,000 throughout the '90s.) When asked by the House Judiciary Committee in 2002 how many of these warrants met the "significant purpose" standard but would have failed to meet the "primary purpose" standard, the DOJ hedged, saying they'd kept no statistics on the distinction.

But the DOJ consistently argues that the principal impact of Section 218 lies not in the expanded applicability of the warrants, but in the way it has facilitated intelligence sharing. As the DOJ paints it, the pre-Patriot era was an icy one; criminal prosecutors and intelligence experts toiled away, rarely communicating with one another. There were protocols for sharing some information, but for the most part, "the metaphorical 'wall' between the intelligence community and federal law enforcement often precluded effective and indeed vital information sharing, perversely creating higher barriers in the most serious cases," as the DOJ told the House Judiciary Committee in May. Making no mention of the possible benefits of this divide—such as prohibiting prosecutors from building their case on warrantless searches—the DOJ crowed in the May report that Sections 218 and 504(a) brought this "artificial dichotomy" to an end, citing the February indictment of Sami Al-Arian—the University of South Florida professor alleged to be a leader of a Palestinian Islamic Jihad cell—as a prime example of what can be achieved when intelligence types and law enforcement officials log a few hours on a ropes course and really start working together. The allegations in the Al-Arian indictment were based on information collected pursuant to FISA but before the passage of Patriot. In those days, FISA protocols allowed for some information sharing. But criminal prosecutors and investigators were denied "full access to information obtained through FISA," according to the DOJ, and criminal and intelligence personnel were prevented "from coordinating their parallel investigations." Post-Patriot, once the wall was down, the Tampa prosecutors accessed information "which existed in the FBI's intelligence—but not criminal—files" and used it "to document the decade-long conspiracy that is alleged."

Eager to find similar prosecutorial applications for information gleaned in terrorism and intelligence investigations, Attorney General John Ashcroft asked U.S. Attorneys after Sept. 11 to review almost 4,500 intelligence files, and the DOJ reported to the House Judiciary Committee in May that "evidence or information from this review has been incorporated in numerous cases." Again, this allows prosecutors free range over materials obtained without a traditional warrant.

Would you know if Section 218 had been used on you? Only if you were later prosecuted using information gathered pursuant to a FISA warrant. Then you'd have the opportunity to try to suppress that evidence in a regular court proceeding.

Sunsets in 2005: Yes.

Prognosis: Last year, in a dramatic refusal to grant a DOJ request, the FISA court declined to implement the Patriot provision allowing for information sharing between prosecutors and investigators. But in November 2002, the secret FISA appeals court, which had never before been convened, found that the lower FISA court had erred in refusing to lower the wall between prosecutors and investigators. Only the government had been represented at oral argument, and only the government has the right of appeal under the law.

Enough to get you through a cocktail party: FISA was a constitutional "bargain" struck by a Congress concerned that the Executive branch needed some special leeway for foreign intelligence surveillance without undermining American criminal procedures as laid out in the Constitution. Broadening FISA so that it may be used against Americans, with searches initiated by the prosecutorial arm of the government, against ordinary criminals, subverts that bargain.

Section 213 aka "Sneak and Peek-a-boo"

Section 213 is another extremely controversial part of the Patriot Act, engendering protest from across the political spectrum. By allowing the state to rummage first and let you know later (sometimes much later), the act upends the traditional requirement that the state advise you in advance that you are being searched.

What it does: "Sneak and Peek" warrants extend sneak-and-peek authority from FISA searches to any criminal search. This allows for secret searches of your home and property without prior notice.

The law before and how it changed: Police used to have to "knock and announce" their intention of searching before executing any warrant. This gave the person being searched advance notice and a clear picture of what authorities were looking for. In 1978 FISA changed the law, allowing the FISA court to authorize sneak-and-peek warrants but only in cases where "foreign powers or their agents" were suspected of terrorism. The Patriot Act expands the use of these warrants if "immediate notification of the execution of the warrant may have an adverse result." Under Patriot, such warrants are no longer limited to terrorism investigations but now extend to include any criminal investigation at all. Moreover, the act requires only that notice be given of the search or wiretap "within a reasonable period of its execution," which may be extended by the court for "good cause shown."

Supporters of the act argue that courts have always allowed officers to delay notification of a warrant if knowledge of the warrant would risk witness intimidation, the destruction of evidence, the impossibility of prosecution, or flight of the suspect. And the Supreme Court has held that these warrants are constitutional. Ashcroft also contends that the act limits the use of sneak-and-peek warrants to specific circumstances, so that its use might actually decline. But it's undeniable that the government can almost always argue that later notification would be helpful. And because the standard under 213 is low, sneak-and-peeks will be authorized anytime notification jeopardizes an investigation. Since few criminal suspects really help the state during searches, this looks to be an exception that might swallow the rule. And ultimately, the best check against the police ransacking your property indiscriminately (rather than sticking to the particulars of their warrant) continues to be your glowering presence nearby.

How it's been implemented: The Department of Justice reported to the House Judiciary committee in May that it had "requested a judicial order delaying notice of the execution of a warrant under section 213 forty-seven times, and the courts have granted every request." Courts can also permit seizure of tangible property if there's "reasonable necessity" for doing so; they've granted seizure requests on 14 occasions and rejected only one request, ruling that "photos of the relevant items would be sufficient."

The delays in notification have been of varying durations, some as short as one day, some as long as 90. The DOJ can request extensions of these periods repeatedly and indefinitely, and it has so far done so 248 times. Some courts have also "permitted delays of unspecified duration lasting until the indictment was unsealed," according to the DOJ's report.

Would you know if Section 213 had been used on you? Eventually—they do still have to tell you that you've been searched, although the law provides that the period of time may be extended indefinitely for good cause.

Sunsets in 2005: No.

Prognosis: In July 2003 the "Otter Amendment," which would de-fund federal power to conduct sneak-and-peeks, passed the House by a vote of 309-118 The issue has yet to be taken up by the Senate, but the administration threatens to veto it should it pass.

In July 2003, Sens. Lisa Murkowski and Ron Wyden introduced a bill, Protecting the Rights of Individuals Act, that would provide, among other things, that sneak-and-peek authority only be available in the limited number of cases enumerated above (risk of flight, destruction of evidence, etc.). The act would also build in a reporting requirement for the attorney general.

Enough to get you through a cocktail party: Sneak-and-peek warrants are neither radical nor per se unconstitutional. However, what was a very limited exception for their use has now grown rather substantially. It's hard to think of a situation in which a criminal investigation wouldn't be better served by announcing the search or wiretap after the fact. And if that's the new rule, "knock and announce" is dead.

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