As I was at work the other day I noticed an image that was widely disseminated after the brutal attacks of September 11th. The image shows the Twin Towers burning moments before they came crashing down, and super imposed over these Towers is the very powerful symbol of America: the Bald Eagle. The moving part of this image isn’t the burning towers, although that’s haunting enough, but the eagle. Usually shown as a strong and confident bird, this eagle has a single teardrop falling from its right eye. A casual observer may believe the eagle is crying for the more than 3,000 lives lost that fateful day, and there can be little doubt that it is indeed mourning for the innocent lives lost in that horrifying attack. But I believe that the eagle’s tear is for something much more profound than the tremendous lose of life that crucial day. This noble bird’s tear is for all of us and the rights we as a nation seem so complacent to cede to our government in the name of fighting terrorism. Our national symbol is weeping as the USA PATRIOT Act circumvents our founding document and our charter: the Constitution.

Congress passes the United and Strengthening of America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), in response to the terrorist attacks of September 11th, 2001. The Patriot Act isn’t a specific law; it actually amended several current laws that were already on the books. The law most significantly affected was the Foreign Intelligence Surveillance Act, or FISA.

During the 60’s and 70’s the FBI abused its power and illegally placed high profile figures, such as Martin Luther King Jr. and anti-war protestors under surveillance. In response to those abuses, Congress established the FISA court in 1978 (Locy). FISA allows intelligence agents of the FBI to obtain a warrant for electronic surveillance on individuals it believes to be acting for a foreign power. FISA warrants aren’t subject to the demanding standard of probable cause because intelligence data is typically used for effective counter-intelligence efforts, while criminal investigations seek to put perpetrators in jail (Ramasastry).

In pre-September 11th America a FISA warrant could only be obtained if the “primary purpose” of the investigation was to collect intelligence. To avoid the problem of criminal investigators seeking FISA warrants the Department of Justice adopted a policy of putting a “wall” between intelligence and criminal investigators, that is criminal and intelligence investigators weren’t allowed to discuss cases for fear of tainting FISA orders (Bulzomi). If criminal investigator’s wanted to tap an individuals phone they had to seek a warrant through a criminal court showing probable cause that their subject had either committed, or was about to commit a crime. These warrants are referred to as Title III warrants and they have to meet the strict requirements of the Fourth Amendment of the U.S. Constitution (Ramasastry).

The Patriot Act essentially tore down this self-imposed wall so investigators could communicate with each other about terror suspects. Nobody can rationally argue against intelligence and criminal investigators sharing information when it involves terrorism investigations. Terrorism investigations differ from criminal investigations because often investigators of international terrorism rely heavily on both intelligence and criminal aspects of information gathering (Bulzomi). Also the consequences of a failed terrorism investigation, as seen by millions on September 11th, can be devastating.

However, a problem can arise with this level of cooperation. In May of 2002 the FISA court made its first ever public ruling stating that Ashcroft and the Department of Justice had overstepped their bounds and failed to observe required safeguards regarding the sharing of information between intelligence and criminal investigators when using FISA warrants and documented abuses of surveillance warrants in 75 instances during both the Bush and Clinton administrations (Frieden). But the FISA Review Court overturned this decision in November of 2002. The FISA Review Court ruled that, according to the Patriot Act, investigators could work in unison and that obtaining foreign intelligence need only be a “significant purpose” of the investigation (Locy). Why is this a problem? Well, FISA warrants are easier to obtain, and the fear is that criminal investigators could circumvent Title III warrants, which are harder to obtain, and go straight for FISA warrants in an effort to catch criminals that may or may not be terrorist (Ramasastry). A second problem with these warrants arises when you consider that FISA warrants can be sealed if the Attorney General certifies that it is in the interest of security to do so (Ramasastry). This is a problem if evidence from these warrants is used in a criminal trial. The accused won’t be able to challenge the warrant or the reasons it was brought against him or her. This flies in the face of the 6th Amendment, which, in part, states: “In all criminal prosecutions…the accused has the right to be confronted with the witnesses against him.”

Supporters of the Patriot Act assert that we should trust the government to do what’s right, that the fear of America being turned into a ‘1984’ society is unfounded. Indeed Ashcroft himself referred to civil libertarians who questioned the Patriot Act as “hysterics” (Isikoff). But our government, as good and as well meaning as it is, has a history of abusing powers when left to run unchecked. In fact a provision of the Patriot Act has already been abused, well maybe abused is too strong a word, but it has been misused.

During 2003 FBI agents in Las Vegas were investigating Michael Galardi for bribing local officials. Galardi owned several strip clubs in Las Vegas and has confessed to bribing local officials to the tune of several thousand dollars. While all of this is relatively unimpressive for Las Vegas, the manner in which the Feds caught and prosecuted Galardi should raise the eyebrows of every American. To catch Galardi the FBI used a little know provision of the Patriot Act, this provision allows Federal investigators to quickly obtain financial records of suspected terrorists or money launderers (Isikoff). This is how it works. If the FBI suspects you of wrongdoing they give your name to the Treasury Department who then orders financial institutions across the country to search for any matches. If a bank hits on your name, then the financial institution is issued a subpoena for your records (Isikoff). Peter Djinis, a banking lawyer, has described these searches as a “national subpoena”, and critics of the law call it a fishing expedition (Isikoff).

In fact Galardi isn’t the first person this provision has been used on, according to Newsweek the Treasury Department shows that the FBI has used the Patriot Act to conduct searches on 962 suspects, which yielded hits on 6, 397 financial records, about two thirds of these hits involved money-laundering cases with no apparent terror connection (Isikoff). These cases should be disheartening to Americans who were sold on the Patriot Act as a way of defending America against terrorists. Indeed Rep. Berkley, a Nevada Democrat in response to the Galardi case stated, “Never…did the FBI say we needed additional tools to keep this nation safe from strip-club operators.” (Isikoff).

The Patriot Act has some very good provisions which will help protect us from terrorist attacks, but it also has some provisions that could lead to a loss of civil liberties and Constitutional rights. Americans need to remain vigilant to prevent abuse of power by law enforcement agencies; Americans should also demand of Congress that the Patriot Act be reviewed. The Patriot Act was passed in a climate of uncertainty and fear, and now that we have a little distance from the horrific events of September 11th, Congress should be able to put together a law that gives law enforcement the necessary tools to fight terrorism while protecting our essential liberties. And we should look to our Founding Fathers in these times of tribulation, as they seem to speak to us from the past. Benjamin Franklin once warned “those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety” (Bulzomi).

Works Cited

Bulzomi, Michael.

“Foreign Intelligence Surveillance Act.” FBI Law Enforcement Bulletin Vol. 72 Issue 6 (2003): 25-33. Academic Search Elite. EBSCOhost. Kirkwood Community College, Main Lib. 26 Apr. 2004.

Frieden, Terry.

“Appeals Panel Rejects Secret Court’s Limits on Terrorist Wiretaps.” Cable News Network. 19 Nov. 2002. 22 Apr. 2002 CNN.

Isikoff, Michael.

“Show Me the Money.” Newsweek 1 Dec. 2003. 29 Apr. 2004. Newsweek.

Locy, Toni.

“Broader Domestic Spying Allowed.” USA Today 19 Nov. 2002. Academic Search Elite. EBSCOhost. Kirkwood Community College, Main Lib. 26 Apr. 2004.

Ramasastry, Anita.

“Spy Court Creates Potential End Run Around Fourth Amendment.” Editorial. Cable News Network. 27 Nov. 2002. 22 Apr. 2004. CNN.

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