From a Federal Perspective: A New Definition of Patriotism

Days after the tragic events of 9/11/01, Attorney General John Ashcroft urged Congress to pass drastic antiterrorism legislation within a week, and before anyone in Congress saw the proposals, lawmakers vowed to move the legislation at record pace. Fortunately, some modifications were made before Congress placed its imprimatur on the Department of Justice (DOJ) wish list). ¹ On October 26, 2001, legislation titled “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism” (USA PATRIOT) Act was signed into law.

Although the DOJ would suggest that the USA PATRIOT Act is designed to provide law enforcement agencies with the tools necessary to combat terrorism, the Act does much more. First, some (but not all) of its provisions expressly apply beyond the context of terrorism. Secondly, the definition of terrorism is so broad that the DOJ is able to shoehorn routine investigations in non-terrorism cases into the auspice of the Act. Third, there is a piece of legislation in the works that seeks to expand the terrorism targeting provisions of the Act to drug cases by labeling illicit drug activity as “narco-terrorism.” ²

More importantly, as a practical matter, we have seen the government invoke the USA PATRIOT Act in the course of investigating mundane federal law infractions – violations with not even the most tangential or remote connection to what the American public would consider terrorism.

So, how is the government inequitably empowered by the USA PATRIOT Act?

In a nutshell, the Act accomplishes three (3) things: (1) it grants the executive branch unprecedented, and largely unchecked, surveillance powers; (2) it allows law enforcement agencies to circumvent the Fourth Amendment’s probable cause requirement if a “significant purpose” relates to gathering foreign intelligence; and, (3) it puts the Central Intelligence Agency (CIA) back in the business of spying on Americans. Many critics of the legislation have said that, in the aftermath of the USA PATRIOT Act, American civil liberties regressed to the J. Edgar Hoover days.

Although the radical implications of the USA PATRIOT Act are too numerous to explore in a single article, there are several provisions that will impact non-terrorism cases presently pending in federal court and that are worth a cursory overview.

For instance, the USA PATRIOT Act extended the use of administrative subpoenas to permit the gathering of sensitive business and personal records without requiring a showing of criminal nexus. The records subject to these administrative subpoenas includes documents and other data regarding finances, medical history, telephone usage, library usage, bookstore purchases, grocery purchases, and the like. Presently, this new generation of administrative subpoena is the most commonly seen application of the USA PATRIOT Act in the federal defense bar’s typical cases. Other aspects of the USA PATRIOT Act are less likely to be seen in our cases but not necessarily less likely to be used. Because of the secrecy in execution and the permissible usurpation of the customary judicial approval process both described below, we may not receive notice that some of the most heinous techniques are being used against our clients (or us).

Although technically limited to the investigation of terrorism, other parts of the USA PATRIOT Act have the potential for misuse in other contexts (particularly drug and financially motivated crimes). In that regard, the law expands pen register and trap and trace authority to allow for snooping on Internet communications (e-mail and Web browsing). It also permits the government to conduct sneak-and-peak searches (secretly breaking into homes, businesses and vehicles, etc., while the owner is away) and to seize items during the searches without giving the usual immediate notice to the property owner. Likewise, the USA PATRIOT Act allows for “roving wiretaps” (meaning law enforcement can listen to multiple phones and devices used by a ‘terrorism” suspect with a single warrant). The letter of the USA PATRIOT Act limits the aforementioned investigatory tools to terrorism cases, but in spirit, the application may be broader.

Unfortunately, much of the USA PATRIOT Act minimizes the role of the judiciary. The use of some techniques does not require a showing of probable cause and others entirely dispense with the warrant requirement. Some other provisions permit the government to provide conclusory information to the supervising court (negating the role of a neutral and detached magistrate’s independent evaluation of facts). In essence, the law lacks adequate constitutional safeguards against unfettered law enforcement discretion.

As mentioned above, much of the Act allows for secrecy in execution such that we may never learn if these tools are being implemented against our clients. Notice may be given late in some instances or never given in others.

So, what can we do? As a threshold matter, watch for the use of the Act with administrative subpoenas, and in that context, challenge the unconstitutionality of the Act in an effort to suppress the usage of the records. The greater challenge will be identifying the secret and undisclosed usage of the USA PATRIOT Act in our cases. To this end, look for unexplained investigatory revelations, and listen to your client when he/she says “they could only know that if they [broke into my house], [bugged my car], [read my e-mail]….” Try to flush out the basis for the unexplained gaps in discovery.

If you find evidence of or suspect the use of the USA PATRIOT Act (particularly in a non-terrorism case), try to make the government get on its feet and explain what impetus caused the Act to be used. The Act has not stood the test of a true constitutional challenge as of yet, and many scholars on the subject opine that it would not survive one. ³ Challenge away!

On a note of self-preservation, you should know that Attorney General Ashcroft interprets the USA PATRIOT Act to authorize, without Court order, the monitoring of communications between pre-trial and post-trial detainees and their lawyers if the DOJ unilaterally declares it “reasonably necessary” to deter “violence or terrorism.” This DOJ interpretation could have a potentially chilling effect on the attorney-client relationship.

Many of our cases have an aspect of “violence” in them. By way of example, if we look to broad definitions of “crimes of violence” and “violent felonies,” we quickly realize that virtually any type of gun prosecution may open the door for such snooping. And, there is no notice requirement; so, you may never know if the government is monitoring your conversations with your client.

Ironically, while invoking notions of liberty, justice and freedom, the USA PATRIOT Act compromises and discards numerous constitutional protections in the name of national security. The DOJ’s loose interpretation of the Act has proven dangerous to the criminal defendant and his/her counsel and serves as legitimate fodder for constitutional advocates’ grave concern about the potential for misuse.

Fortunately, help may be on the way. The Security and Freedom Ensured (SAFE) Act would reform several of the USA PATRIOT Act’s provisions discussed herein. If passed, it would curb some of the blatant constitutional infringements without undercutting the government’s ability to combat true terrorism.

In the meanwhile, we should encourage the Courts to strike down the USA PATRIOT Act as unconstitutional. The DOJ must learn that there is nothing more unpatriotic than sacrificing our constitutional integrity and trampling on the Bill of Rights.

About the Author: Kim Hodde is a private criminal defense practitioner in the Middle District of Tennessee who serves on TACDL’s Ad Hoc Federal Court Committee. For more information about this article or to suggest topics for future articles, please contact her at 615-242-4200.

1. I refer to the USA PATRIOT Act as a DOJ “wish list” because the law consists largely of fragments of past, unsuccessful DOJ-promoted legislative efforts that were struck down by Congress pre-9/11/01.
2. The VICTORY (Vital Interdiction of Criminal Terrorist Organizations) Act, a bill drafted by five (5) Republican Senators with the assistance of the DOJ, seeks to expand the definition of domestic terrorism to specifically include the possession, manufacturing or distribution of drugs. The VICTORY Act characterizes drug offenses as “narco-terrorism.”
3. “The constitutionality of an Act of Congress is a matter always requiring the most careful consideration. The presumptions are in favor of constitutionality, and before a court is justified in holding that the legislative power has been exercised…in conflict with restrictions imposed by the fundamental law, the …conflict should be clear.” Fairbanks v. United States, 181 U.S. 283, 285, 21 S.Ct. 648, 45 L.Ed. 862 (1901) (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803)). This principle, rooted in the rule of judicial restraint, operates as a reminder that an unelected judiciary “is not exercising a primary judgment but is sitting in judgment upon those who also have taken the oath to observe the Constitution and who have the responsibility for carrying on government.” Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 164, 71 S.Ct. 624, 95 L.Ed. 817 (1951); see Rostker v. Goldberg, 453 U.S. 57, 64, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981) (Congress is a coequal branch of government whose members take the same oath (that the courts) do to uphold the Constitution of the United States.”). Consistent with these teachings, the Supreme Court has cautioned that a federal court may exercise its “awesome power of judicial review,” Williams v. United States, 401 U.S. 667, 678, 91 S.Ct. 1171, 28 L.Ed.2d 404 (1971), to invalidate legislation passed by both Houses of Congress and signed by the President “only — for the most compelling constitutional reasons.”Mistretta v. United States, 488 U.S. 361, 348, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989).