To the Teacher:
The Patriot Act is a hotly debated law very few have read and about which there is a good deal of ignorance and misunderstanding. Many questions have been raised about the new law. Among them: Does it violate the Bill of Rights and the Fourteenth Amendment to the Constitution? And if it does, should the gravity of the terrorist threat require such extra-constitutional measures?
The opening exercise offers students an opportunity to learn something about the Patriot Act and to grapple with some of its controversial provisions. Two readings and the questions that follow aim to explore those and other provisions and a values conflict. Most Americans value the Bill of Rights and the Constitution. Most Americans also want to combat terrorist threats effectively. Can the latter be done without damage to the Bill of Rights and the Constitution?
An Opening Exercise:
Mohammed, the FBI, and You
Distribute copies of the following scenario to students. Provide them also with copies of the Bill of Rights and Amendment XIV to the Constitution. After they have read these materials, divide the class into groups of four to discuss their decision as trustees. Have them select one student to report to the class for discussion the group's decision and the reasons for it. Then consider the discussion questions.
Mohammed Jabbar is an American citizen, a Muslim, and scholar who is researching international terrorism. He takes out many books on that subject from the library. He meets with other Muslims who come from Iran, Syria, Chechnya, Algeria, and Indonesia when they visit friends and relatives in the U.S. He goes to a mosque regularly. He exchanges e-mails and telephone calls with Middle Eastern friends who provide him with information about terrorism in their countries. He takes frequent trips without telling neighbors where he is going. He does not know them well anyway and does not socialize.
One of those neighbors, a librarian, has noticed Mohammed Jabbar's book-borrowing habits, the people he meets with, his frequent disappearances, and his very quiet, rather secretive behavior. She becomes suspicious and reports what she knows to an FBI office.
The FBI opens an investigation. It obtains court subpoenas to listen in on Mohammed's voice-mail and phone conversations, to read his e-mail, and to search his home. All of this is done without his knowledge. The FBI learns that some of the people he has been in touch with are on its list of suspected terrorists. It finds out from several airlines that he has often traveled to the Middle East. It obtains a subpoena from a local court requiring the library to turn over its computerized list of books he has borrowed. It does not explain why it wants the list.
You are a library trustee. With other trustees you make library policy. The FBI has presented copies of its subpoena to all trustees. What decision do you make about providing the FBI with a list of all the books Mohammed has borrowed?
For discussion:
1. Do any of the FBI's actions violate the Bill of Rights and/or Amendment XIV? Why or why not?
2. What, if anything, do students know about the Patriot Act and why it was passed? Does the Patriot Act make the FBI's actions legal? Why or why not?
3. If the class judges that the FBI actions violate any constitutional amendments but are legal under the Patriot Act, should that act be amended? Why or why not?
4. What should take precedence: the threat of terrorist acts or the Constitution? Why?
Reading 1:
The Patriot Act and some of its controversial provisions
On June 8, 2004 an FBI agent asked for a list of people who had checked out a biography of Osama bin Laden at the Deming, Washington Library," Jean Airoldi, a Deming librarian, wrote in an article. After the library's attorney asked the FBI why it wanted such a list, the Bureau answered that a Deming Library patron had informed it of these words written in the bin Laden biography:
"If the things I 'm doing is considered a crime, then let history be my witness that I am a criminal. Hostility toward America is a religious duty and we hope to be rewarded by God." A Google search revealed that Osama bin Laden is quoted as saying words almost identical to these in a 1998 interview.
The library trustees refused to turn over the list and issued the following statement: "It is our job to protect the right of the people to obtain the books and other materials they need to form and express ideas. If the government can easily obtain records of the books that our patrons are borrowing, they will not feel free to request the books they want. Who would check out a biography of bin Laden knowing that this might attract the attention of the FBI?"
After the FBI obtained a subpoena to force the library to turn over the list, the trustees decided to fight the order in court to overturn it. Fifteen days later the FBI withdrew its demand.
The FBI was acting under the provisions of the USA Patriot Act (Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) passed by Congress on October 25, 2001, and signed into law by President Bush six weeks after the 9/11 terrorist attacks. This act gave the FBI power, under Section 215, secretly to obtain records from libraries as well as any business the agency regards as important for a national security investigation. The FBI does not have to explain to the court why the people whose book-borrowing list or business records it seeks are being investigated. Librarians and others are forbidden from telling anyone about such an FBI order.
Before 9/11 the government had the power to subpoena library and bookstore records but had to reveal its reasons to a court. The Patriot Act requires officials seeking such information to get permission from a court but does not require that they state their reasons. As Joan Airoldi concluded in her article, if the FBI had not dropped its request, I "would not have been able to tell this story." (USA Today, 5/18/05)
The Patriot Act is a lengthy, detailed, and, in its language, difficult law to understand. Passed after the 9/11 attacks shocked Americans into an understanding of how vulnerable the U.S. is to terrorism, the law permits a range of governmental actions that invade individual privacy, often in secret ways: to monitor e-mail and voice-mail messages; to gather personal information and records from doctors, libraries, banks, and other institutions without having to demonstrate to a court any evidence of criminal behavior; to obtain nationwide search warrants and search homes without immediately informing residents; to imprison non-citizens without charge and indefinitely; to deny a foreigner entry into the U.S. without any explanation; to freeze the financial assets of an organization without producing evidence it has done something wrong.
Sixteen provisions of the Patriot Act are scheduled to "sunset" this year. This means that they will expire if Congress does not reauthorize them. It is those provisions, especially Sections 215 and 213, that civil liberties advocates insist are violations of the Bill of Rights. Section 213, called "the sneak and peek provision" by opponents, permits investigators to get a warrant to search a home and to delay telling its owners about it. Section 215 allows the FBI to order any person or entity to turn over "any tangible things," so long as the FBI specifies that the order is "for an authorized investigation . . . to protect against international terrorism or clandestine intelligence activities."
The American Civil Liberties Union (ACLU) opposes both provisions. In arguing against Section 213, it points to a Justice Department warrant and secret search last year of the home of Brandon Mayfield, a Muslim lawyer in Oregon. The search was based on what turned out to be an inaccurate fingerprint match that connected him to the 2004 Madrid train bombings. The Justice Department said that they have also used secret warrants in cases involving child pornography, drug dealing, and organized crime that have nothing to do with terrorism. (New York Times, 4/5/05)
Bob Barr, a conservative and former Republican Congressional representative, joins the ACLU in its opposition to Sections 213 and 215. He said "the government should have to actually make out a bare bones case that they believe that a particular target of an investigation has actually done something wrong before they should be able to start issuing orders and subpoenas to gather information on that person. It's far too easy for the government to go to a library or your doctor's office and get your private information." (PBS: Now, 5/6/05)
A supporter of Section 215 wrote," Congressional testimony revealed that some of the Sept. 11 terrorists who hijacked the plane that crashed into the Pentagon used computers in public libraries weeks before the attack. We cannot allow libraries to become safe havens for criminals or terrorists to perform research or communicate with each other or plan their attacks." (San Francisco Chronicle, 5/9/05)
In support of Section 213, a writer argued, "Let's say the FBI wants to plumb [lead 9/11 terrorist] Mohammad Atta's hard drive for evidence. If a federal agent shows up at the door and says, 'Mr. Atta, we have a search warrant for your hard drive, which we suspect contains information about the structure and purpose of your cell,' guess what happens next. Mr. Atta tells his cronies back in Hamburg and Afghanistan: 'They're on to us; destroy your files." The government can delay its notice to a suspect only for "a reasonable period of time." (Dallas News, 4/19/05)
In an official statement, the Justice Department said, "the USA Patriot Act has served as an invaluable tool for law enforcement and intelligence communities in the war on terror."
On March 9, President Bush signed into law the USA Patriot Improvement and Reauthorization Act. It renewed without change most of the provisions Congress passed in 2001. The president called it "a piece of legislation that's vital to win the war on terror and to protect the American people."
One change exempted most libraries from FBI demands for lists of books checked out by patrons. But libraries are required to submit to such demands for internet and email records.
The reauthorization bill also "sunsets," after four years, two other provisions in the original legislation: 1) FBI authority to conduct "roving wiretaps" of suspects with multiple phones and email devices and 2) the government's power to seize records of businesses and universities. This provision now makes it possible for those in charge of such records to consult a lawyer.
While the Justice Department hailed the new "safeguards for liberty," others, like law professor David Cole of Georgetown University, declared the changes to be "minor" and "a bitter disappointment for civil liberties" supporters. (The Nation, 4/3/06)
Most newspaper and TV news reports of the reauthorization of the Patriot Act did not include coverage of President Bush's "signing statement." Presidents have made such statements to describe their interpretation of the law they are signing. But President Bush's statement went further:
"The executive branch shall construe the provisions of [the reauthorization of the Patriot Act] that call for furnishing information to entities outside the executive branch" (that is, the Senate and the House of Representatives) "in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties."
In short, the president's signing statement declared that he has the power to ignore the requirement in the reauthorized Patriot Act that Congress is to be kept informed about how the FBI is using its expanded police powers. Representatives of groups like the American Civil Liberties Union and some senators objected strenuously to the statement, which they regard as a violation of the constitution. Senator Patrick Leahy (Democrat, VT) said that the president's signing statement represented "nothing short of a radical effort to manipulate the constitutional separation of powers and evade accountability and responsibility for fulfilling the law."
For discussion
1. What questions do students have? How might they be answered?
2. Which provisions of the Bill of Rights do you think critics of the Patriot Act would argue are violated by Sections 213 and 215? Why?
3. What is your opinion of the response of the Deming Library trustees to the FBI request? If you knew the FBI was monitoring the books you read, would it make any difference to your reading habits? Why or why not?
4. What is controversial about the Patriot Act? Do you think Sections 213 and 215 should remain in it? Why or why not?
5. Is the threat of terrorist acts so serious that the Patriot Act's provisions should take precedence over constitutional protections guaranteed in the Bill of Rights and Amendment XIV? Why or why not?
6. What questions do students have about changes in the Patriot Act? How might they be answered?
7. How significant are the changes? Why?
8. What do you think about the president's "signing statement"? Do you regard it as constitutional? What can you find in Articles I and II of the Constitution to support your view? If you think the "signing statement" is unconstitutional, what do you think Congress should do about it?
Reading 2:
Other issues raised by the Patriot Act
"I've read a good bit of it [the Patriot Act]," said Jeremy Paul, a professor and associate dean for research at the University of Connecticut School of Law, "and in a certain way it's virtually impossible for even a lawyer to actually grasp the Patriot Act in its entirety. Our laws ought not to be written like static on the radio. They ought to produce a melody. How can members of the public determine what laws are a threat to democratic principles when they can't even read them?" (New York Times, 4/25/05)
Because of both its difficulty and its length (324 pages), very few people have read the Patriot Act. That includes most, if not all, of the Congressional legislators who approved it and President Bush, who signed it into law.
One result is that critics have focused their attention on Sections 213 and 215. But there are a number of other provisions (which are not being sunsetted this year) that David Cole, a law professor at Georgetown University, finds even more troubling.
While Patriot Act proponents often insist that there have been no abuses of the act, Cole argues that "the law's immigration provisions have clearly been abused." He notes that the Patriot Act:
- permits the government to deny entry to the U.S. to foreigners on the basis of what they have said rather than on what they have done. Example: Tariq Ramadan, a Swiss professor and a major Islamic thinker, was offered an important position at Notre Dame University. But the job was effectively denied him when the U.S. government revoked his visa for something he saidóbut did not tell him what that was. Professor Ramadan was one of the first Muslim scholars to condemn the 9/11 attacks.
- authorizes deportation of permanent non-citizen residents of the U.S. who have supported political groups that the government opposes. Example: An Indian man who set up a tent for religious prayer and food was deported because unnamed "terrorist group" members allegedly came to services in the tent.
- allows foreigners in the U.S. to be sent to prison without their being charged with any crime. Example: By the end of November 2001, hundreds of non-citizens, most of them from the Middle East, were arrested, but only a small number officially charged with any offenses. Most of the charges that were made against them were minor, such as failure to report a change of address or overstaying a visa.
Professor Cole also finds it troubling that the Patriot Act:
- authorizes the Secretary of the Treasury to freeze the assets of any organization or group without evidence of wrongdoing. The law is satisfied if the entity is "under investigation" for possibly giving material support to people named as "terrorist." Since "terrorist" is not defined, it is left to the Secretary to determine who fits that label. Example: The Treasury Department has frozen the assets of a number of Muslim charities that may or may not have delivered money to terrorist groups. The reason we don't know is that the Patriot Act protects the government against any open court challenge.
- criminalizes speech by making it against the law to give "expert advice" to "terrorist organizations." Example: Professor Cole represents a human rights organization, the Humanitarian Law Project, which had been giving a Kurdish group in Turkey nonviolent human rights training and advice about their dispute with the Turkish government. But after the government labeled the group "terrorist," it became a crime for the human rights group to continue its work with the Kurds.
"So," concludes Cole, "the Patriot Act imposes guilt by association, punishes speech, authorizes the use of secret evidence and allows detention without charges, yet none of that will be subject to the Patriot Act debates. [The debates] will not address many of the most troubling provisions of that law, or other practices of the Administration that raise far more substantial constitutional questions." A major reason for this neglect, writes Cole, is that "many of the most pernicious aspects of the Patriot Act, and of the 'war on terror' generally, affect foreign nationals exclusively, or nearly exclusively." In short, the provisions don't get much attention because "they apply only to 'them,' not 'us.'" (The Nation, 5/30/05)
President Bush vigorously defends the Patriot Act as "a law that gives intelligence and law enforcement officials important new tools to fight terrorists. This legislation has prevented terrorist attacks and saved American lives. The dramatic increase in information-sharing allowed by the Patriot Act has enabled law enforcement to find and dismantle terror cells in Portland, Oregon; Lackawanna, New York; and Northern Virginia." The Bush administration argues that "law enforcement officials have been given better tools to fight terrorism, including roving wire taps and the capacity to seize assets and end financial counterfeiting, smuggling and money-laundering." (whitehouse.gov)
A new addition to the Patriot Act proposed by the White House would permit the FBI to demand records from businesses and other institutions in national security investigations without getting an order from a judge.
Michael Chertoff, the homeland security secretary, said that the Patriot Act "has been a tremendous positive, value-added element of the war against terror. It has allowed us to get information promptly, and it has allowed us to make sure that it gets to the right people and we connect it up. And I think it has been handled in a responsible way." He also supports the White House proposal to expand the Patriot Act to allow the seizure of records in terror cases without a judge's approval.
For discussion or writing
To help get a discussion started and involve as many students as possible, the teacher might find it useful to begin examination of one of the questions below with a pair-share. Give each of the pairs one minute to respond uninterrupted to a question. Emphasize the importance of good listening. Have each partner summarize accurately what the other has said. Give each partner an opportunity to correct what he or she regards as an inaccuracy or misunderstanding. Then have the pairs engage in a dialogue of four or five minutes before beginning a wider class discussion.
The discussion should help students to become more aware of the issues involved and their complexity. To show their awareness of these complexities and to clarify their own thinking, students might then be assigned a written response to one of the questions.
1. Consider each of the case examples Professor Cole offers to demonstrate the constitutional problems of the Patriot Act. Do you agree with him? Why or why not?
2. Do you think much of the public has reacted mildly to the Patriot Act because its provisions have mostly affected non-citizens and foreigners? Why? Should it make a difference? Why or why not?
3. Should law enforcement agencies be allowed to use the Patriot Act in cases that have nothing to do with terrorism? Why or why not?
4. Should the FBI be allowed to demand records from businesses and other institutions without getting an order from a judge? Why or why not?
5. Based on your reading and discussions, do you agree with Michael Chertoff that the Patriot Act "has been handled in a responsible way"? Why or why not?
6. Anthony Romero, Executive Director of the ACLU, wrote, "One reason that people across the political spectrum are concerned about the Patriot Act is that so much of it is shrouded in secrecy. Many provisions are implemented secretly, and the government has kept secret information on how it is being used." What evidence supports or contradicts Romero's view? To the extent that the act is being used secretly, is that justifiable? Why or why not?
For further inquiry
1. The Patriot Act (readily available online at www.aclu.org and on the U.S. government's website). Sample provisions of the act. How difficult are they to understand? Might they be made simpler to read and understand? How?
2. The Portland, Lackawanna, and Northern Virginia terror cell cases. In each case, what methods did law enforcement officers use under the Patriot Act? To what extent, if any, was each of these methods essential for law enforcement? In each case, were the suspects tried in a court? If so, with what result? If not, why not?
3. Any other cases regarded by the Bush administration as having been essential in preventing terrorist acts? Which ones? Why?
4. The opposition of civil liberties organizations (e.g., the ACLU, Human Rights Watch, the Bill of Rights Defense Committee, Amnesty International) to certain provisions of the Patriot Act. Which provisions? Why?
The following offer opportunities for historical background study on the suspension of civil liberties during wartime:
- Alien and Sedition Acts of 1798
- Abraham Lincoln's suspension of habeas corpus during the Civil War
- the Japanese-American internment during World War II
This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email them to: lmcclure@morningsidecenter.org