Following the attacks of September 11, 2001 The National Commission on Terrorist Attacks Upon the United States (9/11 Commission) was created to prepare a report establishing an account of the United States’ preparedness for and response after the attacks, as well as make recommendations that may aid in preventing future attacks (“The National Commission,” 2004a). On July 22, 2004 the 9/11 Commission released its public report (“The National Commission,” 2004a). However, almost immediately following the attacks on October 26, 2001, President Bush signed into law the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001,” (USA PATRIOT Act) (Cornehls, 2003). In a rush to strengthen law enforcement’s investigative ability to thwart future attacks, this legislation may have gone against a future finding of the 9/11 Commission; to insure that legislation targeted toward reducing future threats to United States (U.S.) citizens does not impinge upon civil liberties. This is the subject of the following brief report.
The findings of the 9/11 Commission identified priorities for reorganizing existing law enforcement and intelligence gathering organizations to better anticipate and respond to the terrorist threat while protecting civil liberties. The protection of civil liberties was addressed in chapter 12 of the final report. The report recommended that “At this time of increased and consolidated government authority, a board within the executive branch [be established] to oversee adherence to the guidelines we recommend and the commitment the government makes to defend our civil liberties” (“The National Commission,” 2004b, p. 395). This recommendation lead to the establishment on August 27, 2004 of the President’s Board on Safeguarding Americans’ Civil Liberties within the Department of Justice (Relyea, 2008), reconfirming the government’s commitment insuring the protection of civil liberties during a time of expanding law enforcement powers intended to protect the U.S. from further attacks. However, prior to this recommendation and the establishment of the President’s Board on Safeguarding Americans’ Civil Liberties, the damage may have already been done.
On October 26, 2001 President Bush signed into law the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001,” (USA PATRIOT Act), a complicated 342 page document, just 45 days after the attacks of September 11, 2001 (Cornehls, 2003). It has been asserted that some of the provisions of the USA PATRIOT Act represented formerly rejected requests by law enforcement, which Congress, following the attacks of 9/11, felt pressured by the administration to pass (“Surveillance,” 2010). Among other things, the USA PATRIOT Act expanded the government’s surveillance powers by expanding its ability to look at personal records being held by a third party and conduct searches without providing the property owner with notice (“Surveillance,” 2010). These are but two of the many Fourth Amendment concerns of civil libertarians regarding the expanded powers of law enforcement granted within the USA PATRIOT act.
Though the USA PATRIOT Act was signed into law prior to the 9/11 Commission’s final report and recommendations, which led to the establishment of the President’s Board on Safeguarding Americans’ Civil Liberties, many of the perceived civil liberties violations are based on a lack of knowledge of the Fourth Amendment, investigations, and established law enforcement procedures. The Fourth Amendment of the U.S. Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized (U.S. Const. amend. IV). In response to the ACLU argument that civil liberties are being threatened by the release of personal information held by a third party, it is law enforcement’s contention, recently upheld in a Philadelphia case, that a customer did not enjoy a reasonable expectation of privacy in information that is already shared with another party (McCullagh, 2010). The ACLU argument concerning the provision of notice to the subject of a warrant is based on the legislated practice of warrant service and is not constitutionally based. This practice, though seemingly reasonable in most circumstances, would hurt long running investigations.
The USA PATRIOT Act passed in the Senate by a vote of 98 to 1 and in the House 356 to 66, 45 days after the attacks of 9/11 (Cornehls, 2003). Many of the more questionable provisions of the USA PATRIOT Act had sunset clauses or have been revised since the original passage. The intention of both the 9/11 Commission and the writers of the USA PATRIOT Act was to protect the U.S. from further attacks, either through expanding law enforcement powers or making recommendations for organizational changes. Though the USA PATRIOT Act may have led to some perceived civil liberties violations, the democracy it helped to protect allows for continued debate and revision.