I. Introduction
Tuesday the 11th of September 2001, the day that 3000 Americans lost their lives, the day that changed America. The 9/11 attacks did not only have a major effect on the United States (US) society it also had a big effect on US legislation, as it led to the introduction of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Patriot Act). After this bill was introduced, there was a lot of critique regarding the legitimacy of the document. It was argued that the Patriot Act was in violation with the First, Fourth and Fifth Amendments of the Bill of Rights. Especially the alleged violations regarding the Fourth Amendment were heavily debated.
To determine whether the Patriot Act was in violation with the Fourth Amendment, this essay will seek to answer the following question: “Does the 2001 Patriot Act violate the Fourth Amendment of the Bill of Rights included in the US constitution?”. The essay will firstly elaborate on the background of the Patriot Act, as its history is important to fully understand the concept. Secondly, there will be an analysis of the Patriot Act and a comparison to the Fourth Amendment. To conclude, the results of the analysis will be discussed.
II. Background
On the 11th of September 2001, one of the biggest terrorist attack of all times struck the United States. The event would have a long-lasting effect on society as well as on economy. However, many people are not aware of the fact that 9/11 was a huge turning point in US legislation. Six weeks after the Attacks the US Senate passed the Patriot Act to George W. Bush, who would sign it on the 26th of October. By signing this document, the president severely broadened the powers of the investigating authorities. The aim of this new bill was to protect the American civilians from possible future attacks, by providing several tools meant to help fighting terrorism in the United States.
The US government felt that in order to guarantee national security the Patriot Act needed to be adopted as soon as possible. Because of this, they did not follow the general legislative procedure. This raises doubts regarding the legitimacy of the document.
A. The Fourth Amendment and the Bill of Rights
In 1789, 10 amendments, now called the Bill of Rights, were included in the US constitution. Those amendments were meant to protect and guarantee personal freedoms and rights of American civilians. The document tried to reach this aim by limiting the power of the government.
The Fourth Amendment severely limits the government’s and public authorities’ powers in investigations. According to the Supreme Court the purpose of the Fourth Amendment is: “to let a neutral and detached judge decide when a search or seizure is appropriate as opposed to a potentially biased”. From this statement and the amendment itself it can be derived, that this specific amendment tries to secure the right to be free of ungrounded searches and seizures without a warrant. In short, its aim is to protect a person’s privacy.
III. Analysis of the Patriot Act
As stated before, the majority of criticisms addressed the possible violation of the Fourth Amendment. LW: To determine whether the Patriot Act is in violation with the Fourth Amendment of the US Constitution, the three most controversial sections of the Patriot Act, namely 213, 215 and 218, will be analysed in regard to U.S. constitutional law.
A. Section 218
Section 218 of the Patriot Act limited the previous statement that the use of foreign intelligence is only allowed in investigations in which it serves as the main purpose to a mere significant purpose. On top of this, it does not require a court to grant a warrant. This specific amendment is valid in case of physical searches as well as for electronic surveillance. As a result of the implementation of this section public authorities are now allowed to investigate citizens without a grounded suspicion of criminal activity.
To summarize, the Patriot Act allows foreign intelligence to be used in cases in which it only has a significant purpose, which classifies under the heading of general peace enforcement. This collides with the Fourth Amendment as, it states that the state can only violate a citizen’s privacy interest, if their aim goes further than general peace enforcement. This means that the Bill of Rights would allow the use of foreign intelligence in cases where the primary aim is to prevent terrorism. By allowing this form of investigation to be used in general enforcement cases, section 218 violates the Fourth Amendment.
The US senate opposed this view by stating that by only requiring a significant purpose, the investigating authorities could much easier track down terrorists and thereby protect the country form further attacks.
B. Section 213
Section 213 is known as the section on sneak peek warrants, which allows public officers and authorities to postpone the notification of warrant or a search or seizure. The Patriot Act states that notifications only have to take place within a reasonable time. This means if there is a reason to believe that giving notice in advance could negatively affect the investigation, it is allowed to give notice after the warrant has been executed. At the time of the implementation there was no maximum amount of time a notification could be postponed, it could possibly happen that a notification simply would not take place. This section does not only apply to cases where possible terrorists are being investigated but also to the investigation of ordinary criminal offences.
The fact that the Patriot Act allows authorities to postpone the warrant is in violation with the Fourth Amendment. This Amendment namely states that the authorities must notify persons that subject to any form of search or seizure in advance.
On the other hand, the government argues that this section does not grant new powers to the investigating authorities. They state it is only a mere codification of the practical relevance of the Second and Fourth circuit, which developed the concept of delaying a search warrant already in the 1980s. Moreover, they argued that the delay is necessary to assure that the people under investigation have no chance of fleeing or destroying evidence and therefore only benefits the investigation.
C. Section 215
Section 215 of the Patriot Act enables public authorities to easily acquire private information of any US citizens. This part of the document broadened the earlier scope of only being able to simply just acquire records to any tangible thing. This means public authorities have access to everything there is possibly to know about a citizen, including private matters like travel records. Furthermore, the traditional requirement of a specific and grounded suspicion that a person is connected with terrorism got eliminated. Instead, a highly ranked FBI agent has to state he or she believes this person could be involved in terrorist related activities. Moreover, the Patriot Act removed the terms “foreign power” and “agent of foreign power” regarding to the specification to whom these measures can be applied. As a result, it applied not only to persons possibly engaged in terrorism but to every USA citizen.
This section in a way allows unreasonable searches and seizures to take place, by granting public officers the powers to acquire any tangible thing without a grounded reason. This is in violation of the Fourth Amendment as it secures the right of people to be free of searches and searches unless there is a grounded reason to believe this person is involved in terrorism. Moreover, the persons whom the information is gathered from do not have to be informed, unless it actually leads to a prosecution. However, the Fourth Amendment requires persons subject to searches and seizures to be notified beforehand. In short, this section violates the Fourth Amendment in two ways, namely by allowing searches and seizures without grounded reason and by not requiring to inform the civilians under investigation before.
As an opposing view, the US government believe section 215 would have given authorities the power to prevent 9/11. Therefore, in their opinion, allowing public officers to intrude into someone’s private sphere is justified by the fact that it at the same time protects national security. They argue their responsibility to protect the county outweighs the violation of the fundamental right, not only regarding section 215 but also regarding every other section.
IV. Conclusion
The question whether the Patriot Act violates the Fourth Amendment can be answered from two perspectives, a legal and a moral one
From a legal point of view, it can be concluded that the critiques regarding the most controversial sections 213, 215 and 218, were correct as they do violate the Fourth Amendment. Section 213 and 215, do so by allowing ungrounded searches and seizures and by allowing to notify the person under investigation afterwards or not at all. Section 218 does this by also allowing foreign intelligence to be used in general enforcement cases instead of only cases relating to terrorism.
However, form a moral point of view, it could be argued that there is indeed a violation, but that this violation is outweighed by the general interest and therefore can be justified. The government states that these violations are necessary to exercise their responsibility to protect their nation from terrorist attacks, and in order to guarantee public safety. They recognized there are indeed some sections that interfered with the Bill of Rights. However, when balancing the interests, they believed that public safety in this case should prevail.