Desperate Times Lead to Drastic Measures: The War on Terrorism and the
USA Patriot Act
By: Maria Nakis
Abstract
Duri
ng
times of war, most Americans are not appre-
hensive to temporarily giving
up
certain freedoms.
However, when the threat diminishes, their concessions
are usually restored. The war
on
terrori
sm
may never
actually end because terrorists will never completely
vanish. The USA Patriot Act, passed shortly after
9/11
,
violates several Constitutional Amendments, shifts
authority from the judicial branch to the executive
branch, and violates the attorney-client privilege. The
Act's intent
is
to broaden the power of the government
and law officials
in
order to capture terrorists and protect
national interests. However, the Act diminishes civil lib-
erties
in
the name of national security and ultimately,
despite this violation, the Act does not prevent or capture
terrorists any more than FISA. Security measures must
increase during wartime for the safety of the nation
as
a
whole, but at the same time,
we
must find a balance so
that
we
do not later regret its consequences.
Americans have a need to feel safe.
We
put
up
fences or alarm systems to protect ourselves from crim-
inals. Many of these protective measures effectively
deter crime. However, many crimes still occur.
At
this
point, we depend
on
the judicial system to protect
us
from criminals
by
punishi
ng
them accordingly.
Even
through this process, the accused criminals still have
constitutionally protected rights to ensure fairness
in
due
process. Such rights extend
to
all
accused criminals;
therefore,
we
must provide terrorists with the same
rights that every citizen possesses.
We
should also pro-
vide terrorists with adequate counsel, allowing free com-
munications to transpire wi
th
their attorneys so terrorists
can strategize a defense. The government should not
interfere
in
this process.
For instance, let
us
assume that the government
suspects a bomb or other planned attack to take place
soon. The accused terrorist, already
in
custody, refuses
to provide any information that may thwart the attack.
If
the government decides
to
allow the courts to handle
the situation, time may
run
out and many innocent
people may die as a result. On the other hand,
if
the
executive agency takes charge of the situation and
uses any means necessary to obtain vital information,
this process may save thousands of lives. Most of
us
,
especially if
we
had reason to believe that
we
or loved
ones may suffer as a result, would approve any means
necessary, perhaps
even
torture, to prevent such a
tragedy. Now consider this scenario: after torturing the
65
suspected terrorist,
he
or she dies from that treatment.
Soon after the accused's death, his or her innocence
becomes apparent. If the tables were turned,
we
would
want our loved ones protected from torture, and
we
would at least want those we care about assumed inno-
cent until proven guilty.
Nevertheless, during times of crisis, emotions
run
high and irrational decisions often transpire from those
emotions. After the September
11
attacks, gun sales
increased
even
though "these technologies offer
no
rational defense against the kind of risk demonstrated
that terrible day
..
. " (Sunstein
2)
.
An
increase
in
the sale
of guns does not help
in
deterring terrorism any more
than some of the irrational changes made after the ter-
rorist attacks. The government, and particularly Attorney
General John Ashcroft, played
on
the elevated emotions
of Americans
in
order
to
pass the USA
PATRIOT
Act,
legislation that continues to infringe upon American civil
liberties. Without preying
on
the fears of Americans after
9/11
, the legislation never would have had a chance for
consideration
in
Congress. The USA
PATRIOT
Act vio-
lates several Constitutional Amendments, shifts authori-
ty from the judicial branch to the executive branch, and
violates the attorney-client privilege.
In
the Presidents'
and Ashcrofts' crusade against terrorism, the USA
PATRIOT
Act erodes the rights of Americans
in
the
name of national security and ultimately, despite these
violations, the Act does not promote the prevention or
capture of terrorists any more than the Federal
Intelligence Surveillance Act (FISA).
The USA
PATRIOT
Act, passed six weeks after the
September
11
attacks, reduced the rights of citizens
by
giving the government powers that, constitutionally, it
has no right
to
possess. The attorney general's order
regarding monitoring attorney-client communications
compromises checks and balances between the execu-
tive, judicial, and legislative branches. Having
an
exec-
utive body deciding conditions and techniques of moni-
toring attorney-client communications proposes that
no
safeguards, reviews, or judicial monitoring will protect
clients against the abuse of process. The government's
proposal wants "a 'privilege team' to serve as a 'firewall'
in
making certain that government prosecutors are not
exposed to information that might
be
beneficial
to
the
government's case" (NACOL
4)
. The flaw
in
this propos-
al
surfaces with the implication that this privileged team
will remain neutral, even though the government
appoints the team members. Perhaps a neutral team,
such as one organized
by
courts, would better serve the
proposal; however, a neutral team may defeat the gov-
ernment's purpose of the monitoring.
Regardless of who monitors communications, the
clients will react
by
not disclosing
all
or certain informa-
tion. Consequently, the effects of monitoring conversa-
tions will lead
to
ineffective counsel. However, with priv-
ileged communications,
an
attorney can better serve
society and the government through the full knowledge
of the facts disclosed
by
the client. First,
an
attorney can
educate the client through legal advice about the ramifi-
cations that will follow criminal acts and therefore possi-
bly deter future acts of crime. Second, under rule 1.6 of
the American
Bar
Association Model Rules
of
Professional Conduct,
an
attorney has the right to dis-
close information
to
the government about conduct that
will likely "result
in
imminent death or substantial bodily
harm" (NACOL 17). Therefore, this part of the Act will
not serve a necessary purpose, since lawyers already
have the right to convey "life or death" information. Thus,
monitoring attorney-client communications will not deter
crime; instead, the result of the regulation will lead to a
deprivation of Constitutional rights through the violation
of several Amendments.
Yet,
when the legislatures passed FISA
in
1978, it
permitted the government
to
wiretap and use surveil-
lance
as
an
aid against those suspected of spying or ter-
rorists threatening national security. The FISA court
included seven district court judges, appointed
by
the
chief justice, who review decisions and grant warrants.
The standard for obtaining a FISA warrant required that
the primary purpose for collecting evidence consist of
counterintelligence investigations.
In
another words,
FISA aimed at terrorists and not ordinary American civil-
ians.
Critics of FISA, including the Bush Administration,
argue that
it
impedes the abilities of the authorities to
investigate a suspect because officials feel they can
rarely convince a court to issue warrants. However, this
claim contradicts the facts: "[t]
he
FISA court has issued
some thirteen thousand warrants- a thousand
in
2000
alone- and
is
known to have turned down only one
request" (Hersh 720). One law official complains that
he
and other law officials "cannot arrest people unless they
have some reason to believe they'
ve
violated the law"
thus, impeding
on
an
officer's ability
to
investigate peo-
ple without cause (Baude 5). Such comments from law
enforcement officials clearly indicates that the problem
does not lie within FISA or the FISA court, but rather with
the sidetracked focus of the official's attention
on
civil-
ians instead of terrorists. Additionally, critics of FISA
66
claim that it denies proper access
to
terrorist activities.
The criticism merely provides a scapegoat so that the
government does not have to accept any blame. The
increase of surveillance
in
the USA
PATRIOT
Act serves
as a useless and unnecessary measure against terror-
ism.
As
much
as
we
hate terrorism, and want to believe
that terrorists seem ignorant enough to continue such
communications without encryptions, this only gener-
ates wishful thinking
on
our behalf.
In
reality, terrorists
will find other means of communications and the
increase
in
surveillance will remain as a tool against
Americans, not terrorists. Furthermore, the FISA court
rejected some guidelines offered
by
Ashcroft: "these
procedures cannot
be
used
by
the government to
amend the (surveillance) act
in
ways Congress has not"
(Llanos 2). FISA court judges recognized that some of
Ashcroft's guidelines attempted to give the government
the authority to override procedures that Congress
would not approve. Unlike the proposals of Ashcroft,
FISA focuses
on
terrorists as the primary purpose for
investigations, not ordinary citizens. Information
obtained through FISA investigations may enter criminal
proceedings outside of counterintelligence with proper
qualifications, which requires that the focus center
on
terrorist activities.
Unlike FISA, the USA
PATRIOT
Act warrants can
target Americans. The amendments and additions
in
the
USA
PATRIOT
Act, "enable law enforcement officials
to
track down and punish those responsible for the attacks
and
to
protect against any similar attacks
,"
according to
the stated purpose of the Act
in
the "CRS Report for
Congress"
by
Charles Doyle, a senior specialist
in
the
American law division. However, the new criterion under
the USA
PATRIOT
Act merely shifts the focus from the
terrorists to Americans
by
providing sanction to officials
in
conducting unwarranted searches and wiretaps.
Author of the article "Enemy Lines
,"
David Cole writes,
"the extraordinary authority provided
by
FISA was justi-
fied
on
the ground that foreign intelligence gathering
is
different from criminal law enforcement and that the
intelligence authority would not
be
used for the purpose
of investigating crime" (973). The USA
PATRIOT
Act
eradicates probable cause
in
warrants and searches
by
allowing that, as long as the information collected dis-
plays relevance
(in
the investigator's judgment) to
an
ongoing intelligence investigation, then that same infor-
mation can apply to criminal investigations. The ambigu-
ity
in
the Act allows abuse of due process to follow
by
impeding
on
the accused's rights. The Act does not only
affect terrorists and criminals,
it
also affects law-abiding
citizens.
No
one
is
exempt.
All
Americans must worry,
even
if they
th
i
nk
that they have nothing to hide.
Information or conversations taken out of context and
saved
in
a file against individuals could come back to
haunt Americans
in
the future. According to Stephen
Schulhofer
in
his article, "The Enemy Within
,"
librarians,
doctors, and even lawyers must report
on
or turn over
records to the authorities. After turning over reports to
the government about their clients, they cannot reveal
their actions or the activities of the government
to
their
clients without leaving themselves subject to prosecu-
tion.
The consequences of the USA
PATRIOT
Act will
affect Americans because the Act's additional powers
violate the Constitution. First, the separation of powers
provides a balance between the judicial, executive, and
legislative branches; however, the USA
PATRIOT
Act
shifts this balance to provide the executive branch with
excessive power. Second, monitoring and conducting
searches before judicial approval and without probable
cause further contributes to the violations of the
Constitution. Some Americans already do not trust the
government to protect our civil liberties. Scholars John
J.
Miller and Stephen Moore,
in
the article
"A
National
ID
System: Big Brother's Solution to illegal Immigration,"
state that "[the] history of government programs indi-
cates that privacy rights are violated routinely whenever
expediency dictates" (2190). The fear of war appears
to
dictate this expediency. Moreover, the metaphor "war
on
terrorism" places fear
in
Americans and invites action to
suspend civil liberties. The metaphor serves only as a
loss of civil liberties
by
claiming that
in
time of war
Americans must give
up
civil liberties to protect the
nation as a whole. The metaphor of war justifies that
loss.
In
a similar
way,
government officials have exagger-
ated the definition of terrorism. According to Candice
Cohn, author of the article, "The Assault
on
Civil
Liberties," terrorism to most Americans suggests violent
attacks
on
the government and innocent people for polit-
ical reasons
(11
).
Similarly, the American Heritage
Dictionary defines terrorism as "the political use of vio-
lence or intimidation"(835) . The use of the misnomer
"war
on
terrorism" (when
in
reality there
is
no war) broad-
ens definitions and powers to include a wide target such
as critics of the government or its officials, as well as reli-
gious and political groups. These loose terms justify the
provisions against terrorists, but the provisions are
no
longer aimed just at terrorists.
With the new provisions of the USA
PATRIOT
Act,
protections against the abuse of governmental powers
have begun to diminish. The First Amendment guaran-
tees that the federal government "shall make no law
respecting
an
establishment of religion ... or abridging
the freedom of speech, or of the press .
..
and to petition
the government..." (Henschen and Sidlow 374). Since
67
the enactment of the USA
PATRIOT
Act, the First
Amendment can no longer guarantee those rights
because the Act impedes Amendments
by
placing too
much power
in
the executive agency who has accused
some critics of treason. Attorney General John Ashcroft
--also known as President Bush's "lightning
rod
"
-said:
"[my] job
is
to prevent terrorism, and
[I
'
m]
going to do
everything that
[I]
can think of that's within the limits of
our Constitution"
(1
). However, journalist Edward Klein
notes that Ashcroft opposes desegregation, abortion
rights, flag burning, and endorses school prayer.
Ashcroft's stances
on
these issues do not stay within the
limits of the Constitution. Ashcroft claimed that
he
would
stay within the limits of the Constitution, yet the changes
that
he
seeks are not within those limits.
In
addition, the
Esta_blishment Clause prohibits the government from
establishing
an
official religion. Ashcroft's proposal of
bringing religion back to the schools would lead to
an
established religion. Ironically, bringing prayer back
to
schools, according to Susan Gellman, author of "Law
and Contemporary Problems
,"
resembles "exactly the
sort of thing that the Taliban would endorse" (98).
Bringing religion into schools would make the United
States the same
as
other countries
in
which religious
governments rule. Iran and Iraq, for example, have
Islamic governments that the United States opposes.
The First Amendment provides protection for minorities
against tyranny from a majority; amending the
Constitution the way Ashcroft proposes would likely
interfere with these rights.
A prime example of interference with individual
rights comes from the USA
PATRIOT
Act, which violates
the Fourth Amendment requirements of probable cause,
unreasonable searches and seizures, and the right
to
privacy.
In
the
U.S.
Constitution, the Fourth Amendment
guarantees "the right of the people to
be
secure
in
their
persons, houses, papers, and effects, against unreason-
able searches and seizures, shall not be violated, and
no
Warrants shall issue, but upon probable cause, sup-
ported
by
Oath or affirmation, and particularly describing
the place to
be
searched, and the persons or things to
be
seized." Since the passing of the USA
PATRIOT
Act,
government officials can conduct unwarranted searches
without probable cause. According to the new standard,
reasonable cause holds a much lower criterion.
In
the
article, "Enemy Aliens," by David Cole, the author writes
that "the USA
PATRIOT
ACT allows the government to
evade that requirement wherever it says that its investi-
gation also has a significant foreign intelligence pur-
pose" (973). The government can justify unreasonable
searches and seizures with the lower cause standard
by
claiming that the investigation may have led to counter-
intelligence information.
To
illustrate,
an
officer does not
have the right
to
search a car or its passengers just out
of curiosity, according to the Fourth Amendment.
Allowing such action would surely lead
to
harassment.
The officer can remain alert tor violations
by
not specifi-
cally looking
for,
but
by
noticing open bottles of alcohol,
the smell of marijuana, or disturbing sounds or cries
in
the
car.
If any of these violations occur, the officer has
probable cause to search. According
to
the USA
PATRI-
OT Act, such protective measures of
an
individual's
rights do not apply and
an
officer may search a car with-
out probable cause; the officer might claim that the
search may have reasonable cause, since
no
one can
rule out the possibility that the search could have led
to
information connected to foreign intelligence.
Reasonable cause, as opposed to probable cause, only
requires the
opinion of the official. Thus, discretion
means that the official may search out of curiosity.
Consequently, despite the amount of the time the courts
have invested
in
trying to protect the individual's rights
against unlawful searches and seizures, the USA
PATRI-
OT Act began to persistently chip away at those individ-
ual rights within weeks. The Fourth Amendment does
not intend to interfere with law enforcement; instead,
it
simply requires that the actions not come from the dis-
cretion of a "biased" source, such as the Executive
branch alone. Additionally, monitoring attorney-client
communications also violates the Fourth Amendment.
Determining privacy requires a reasonable expectation
of privacy that society will recognize. Societies,
as
well
as the courts, recognize the reasonable expectation of
privacy. Therefore, the intrusion of expected privacy
without probable cause or a warrant demonstrates the
unconstitutionality of the USA
PATRIOT
Act.
Another intrusion
on
expected privacy occurs with
the government's potential eavesdropping
on
the com-
munications between attorneys and their clients, a viola-
tion of the attorney-client privilege protected under the
Fifth Amendment. The Fifth Amendment of the
U.S.
Constitution states, "no person shall be held to .answer
for a capital, or otherwise infamous crime, unless
on
a
presentment or indictment of a Grand Jury, except
in
cases arising
in
the land or naval forces, or
in
the Militia,
when
in
actual service
in
time of War or public danger.
..
nor shall
be
compelled
in
any criminal case
to
be
a wit-
ness against himself, nor
be
deprived of life, liberty, or
property, without due process of
law."
As
the Founders'
words illustrate, the Fifth Amendment provides protec-
tions against self-incrimination, which the USA
PATRIOT
Act violates. For example, if communications between
an
attorney and a client can possibly incriminate the
client and used against them
in
court, then that demon-
strates self-incrimination, as does requiring the lawyer
to
testify against his or her client. Likewise, any legal
research, such as notes and interviews collected
by
an
attorney
in
preparation for a defense, falls under the
68
"work product doctrine,'' which makes the information
inadmissible
in
court (Boatright 2). A client may plead
the Fifth; however, doing so with a client's attorney
in
order
to
protect him or herself against self-incrimination
would mean having
no
representation at all. This also
violates the Constitution. Under the Fifth Amendment,
one does not lose one's rights until a court finds him or
her guilty. Interferences with legal representation of
criminal proceedings undermine the Fifth Amendment
and presume a client guilty until proven innocent, which
violates one of the pillars of criminal laws and the protec-
tion of the innocent.
Due process also requires fundamental fairness.
Contrarily, the USA
PATRIOT
Act impedes
on
the right
to
assistance
by
an
attorney and interferes with the right to
properly prepare for the charges that clients face
through the monitoring of their communications. The
Sixth Amendment provides that
"in
all
criminal prosecu-
tions, the accused shall enjoy the right to a public and
speedy trial.
..
and
to
have the Assistance of Counsel for
his defense." The obligation to preserve the accused's
right to seek
an
attorney also extends to having conver-
sations between attorney and client without government
intrusions. The Supreme Court established precedence
by
holding that government interferences with the
accused's right to counsel violated the Sixth Amendment
in
cases like Geders
v.
United States, 425
U.S.
853
(1975). The ratification of the USA
PATRIOT
Act after
the terrorist attacks, which the President and the
Attorney General both supported, erodes the rights of
the accused to have
an
attorney's help
in
preparing for a
defense because monitoring the communications
between
an
attorney and a client directly impedes the
ability of counsel
to
obtain the necessary information
needed to properly represent their client.
The Attorney General obviously does not have a
problem promoting the violation of several Amendments.
However, when it comes to the Second Amendment
-which permits the right
to
bear arms- Ashcroft claims
that examining records of the National Rifle Association
(NRA) to track terrorists violates the Constitution. But,
monitoring attorney-client communications, wiretapping,
and searching civilians without warrants or probable
cause does not fit Ashcroft's criteria of unconstitutional.
Ashcroft's reasoning clearly illustrates that his political
agenda takes precedence over national security.
Perhaps
all
of the violations and enactments have noth-
ing to do with national security. This would make sense,
since none of the violations to the Constitution really
help
to
track or capture terrorists.
So
far,
the changes
have only trampled
on
the American's Constitutional
rights and increased the powers of the Executive
branch. The Bush Administration continues
to
use these
---
-
powers to pursue everyone
in
opposition to the
President's agenda.
When the President says, "you're either with
us
or
against
us,"
this statement extends to everyone. Guilt
by
association alone provides sufficient basis for attacking
a lawyer.
An
attorney who defends
an
accused criminal
or terrorist, the government has assumed, must also
approve of the crimes;
in
this case, this would make
attorneys guilty as well. Lynne Stewart, for example, a
court appointed attorney of
an
accused terrorist, risks
jail time from charges of aiding and abetting terrorism.
Stewart, also a high profile radical defense attorney
known for representing well-known criminals, became a
prime candidate for the government
to
use eavesdrop-
ping, justified by the USA
PATRIOT
Act. Invading attor-
ney-client communications limits and controls the infor-
mation between the attorney and the client, thus, lead-
ing to ineffective counsel. Stewart's case serves
as
a
prime example for clients as well
as
attorneys.
In
future
cases, the client could withhold information and attor-
neys may not perform zealously
on
the client's behalf
from fear of having charges brought against themselves,
too.
Clearly, a conflict of interest arises from monitoring
or regulating attorney-client communications.
In
addition, attorneys may have to testify against
their clients and disclose incriminating material from
their privileged conversations, which defies rule 3.7 of
the "American Bar Association Model Rules of
Professional Conduct" (Kepple}. Under such circum-
stances, the effective counsel of
an
attorney becomes
virtually impossible. Perhaps the use of fear
as
a
weapon motivates the monitoring of attorney-client com-
munications. After September
11
, fear and invasion of
the Constitution, mainly prompted by "the Bush
Administration and the
DOJ
[Department of Justice]
have intentionally
fed
public fears to obtain public
approval of unconstitutional measures" (Bergen 3). A
combination of the September
11
tragedies and the
quick Congressional action urged
by
Ashcroft explains
the changes of FISA to the USA
PATRIOT
Act, which
otherwise probably would not have passed.
Furthermore, according to Elaine Cassel's article, "The
Lynne Stewart Case: When Representing
an
Accused
Terrorist Can Mean the Lawyer Risks Jail,
Too,"
fear
serves as "[a] convenient way for the government
to
scare off competent counsel" (5). Surely, the efforts of
many lawyers
on
their client's behalf will diminish
because of attorney-client monitoring. The tactic of plac-
ing fear
in
a lawyer opposes the rules of professional
conduct. For example, the ethics of the ABA hold that
"no fear of judicial disfavor or public unpopularity should
restrain him from the full discharge of his duty" (Casey
and Rivkin
Jr.
4).
Defending
an
accused criminal or
an
69
accused terrorist contradicts with the public's con-
science.
In
addition, the threat of possibly bringing
charges against
an
attorney for aiding and abetting does
in
fact impede and restrain attorneys from fulfilling their
duty of representing their client.
On
the other hand, critics argue that as long
as
clients or the accused have nothing to hide, then they
have nor reason to fear surveillance. But critics of attor-
ney-client privilege argue that other professionals have
to testify under a subpoena against their clients, and
attorneys should testify against their clients for the same
reasons. One critic of this privilege, Dean Daniel Fischel
of the University of Chicago Law School, argues that
confidentiality may "enable a client to violate a law or
regulation and escape detection" (Cooter-ulen 1
).
However, Rule 1.6 of the "Model Rules of Professional
Conduct" provides exceptions to confidentiality
in
order
to
prevent a criminal act that a lawyer thinks will result
in
death or physical harm. Therefore, as
an
officer of the
court,
an
attorney can break privilege
to
prevent crimes
against society. Unfortunately, monitoring privileged
communications may compel a client not to reveal
all
information, which will subsequently lead
to
inappropri-
ate advice from counsel thus defeating the purpose of
attorney representation. Monitoring attorney-client con-
versations to prevent new threats would seem less intru-
sive and more effective if reviewed
by
an
independent
judge, rather than executive agents.
We
should not ignore these encroachments
on
our
individual rights.
In
a time of crisis,
we
cannot depend
on
the Supreme Court to uphold civil liberties. History
shows that wartime has placed civil liberties at risk many
times. For example,
in
WWII, fear of a Japanese inva-
sion drove President Franklin
D.
Roosevelt to place
American civilians of Japanese descent
in
internment
camps. Richard
A.
Posner, a distinguished jurist, states
in
his article "Security versus Civil Liberties," that "the
lesson of history
is
that officials habitually exaggerate
dangers to the nation's security" (2). The Supreme
Court has approved such actions because the justices
strongly felt the need to support the President
in
wartime,
even
at the cost of sacrificing some civil liber-
ties. Similarly today, the courts and the people want
to
stand behind our President. President Lincoln, for
example, abolished the writ of habeas corpus during the
Civil
War.
The court
in
the Milligan case stated" ... that
the law of war 'can never
be
applied to citizens and
states which have upheld the authority of the govern-
ment, and where the courts are open and their process
unobstructed" (Rehnquist 137). Since the terrorist
attacks, the President today approves similar actions
against suspects
in
the name of national security.
In
our
desperation for safety,
we
once again support the
I
l
I
Henschen, Beth and Edward Sidlow. America at
Odds: The Essentials. Belmont:
Eastern Michigan University. 2002.
Hersh, Seymour. 'The Twentieth Man." The
New Yorker. 30 Sept. 2002: 57-76.
Kepple, Robert. "Ethical Dilemmas for
Prosecutors." American Bar Association
Model Rules. May 2001: 1-24. Lexis
Nexus.
Klein, Edward. "We're Not Destroying Rights,
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Maria Nakis
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Measures: The War on Terrorism
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in
May of
2005.
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