|Debating the USA PATRIOT Act
Donna L. Point
The nature of the problem for research purposes is to explore the pros and cons of the USA PATRIOT Act. The paper will endeavor to find documentation that answers such questions as: who benefits from the provisions of the USA PATRIOT Act; who is harmed; what evidence exists that political rhetoric played a part in the passage of the USA PATRIOT Act; where are we now; have we gone too far?
Since its inception, the USA PATRIOT Act and indeed the “War on Terror” have been controversial. In less than six weeks, with no public debate and very little debate in the House or Senate, this legislation was set in motion. The document is over three hundred forty pages in length and affected over fifteen statutes. Most members of Congress voted for this bill without ever reading it. As our leaders rushed to respond to an enemy they did not understand well but nonetheless knew must be defeated, many concluded that the danger we faced was unlike any other in American history. They also ascertained that new approaches were needed to secure our nation, even if certain constitutional rights were curtailed in the process (Center for American Progress 2005). A Los Angeles Times poll taken on September 13 and 14, 2001, found that sixty-one percent of Americans believed that they would need to “give up some civil liberties” in order to confront terrorism (d’Estree and Busby 2001). President Bush announced on September 14, 2001, “Either you are with us, or you are with the terrorists” (Stern 2004). This legislation, once enacted, included a laundry list of sought after law enforcement and investigatory tools perennially denied by Congress because they encroached on domestic issues of privacy (d’Estree and Busby 2001) (Weigel 2005). Many policy remedies that would have been unthinkable only days before the attacks suddenly seemed prudent. A focused examination of the provisions of the USA PATRIOT Act and what they mean to law enforcement, to governmental agencies, and to the average citizen provide the insight necessary for critical examination of these issues.
The Provisions of the USA PATRIOT Act
The provisions of the USA PATRIOT Act have been hotly debated since its inception, both in Congress and the arena of public opinion. The key provisions will be identified along with their meanings to both governmental agencies and the average citizen. Section 203 (b) and (d) information sharing: allows information from criminal probes to be shared with intelligence agencies and other parts of the government. These provisions are at the heart of the effort to break down the barriers that used to separate criminal and intelligence investigations. The United States Justice Department has frequently blamed these barriers for the failure to find and detain September 11th hijackers prior to the attacks. CIA agents had information significantly prior to the attacks that some of the hijackers were in the United States and were suspected terrorists, but the Federal Bureau of Investigation (FBI) claims they did not receive the information until August 2001.
The government claims that existing procedures of disclosure made investigators afraid of sharing information between the criminal and intelligence sides of the probe. Civil libertarians claim that the failure to share information was largely a result of incompetence and misunderstanding of the law. They claim that investigators were allowed to share grand jury information, which this Act specifically authorizes. Critics claim that investigators should have to explain why such information is being shared between governmental agencies and that only information related to terrorism or espionage should be released. Critics also warn that unrestricted information sharing could lead to the development of massive databases containing confidential information about the lives of innocent citizens (Abramson and Godoy 2006).
Section 206 Roving Wiretaps: this provision allows one wiretap authorization to cover multiple devices, eliminating the need for a separate court authorization to wiretap a suspect’s cellular phone, computer or Blackberry. The United States Justice Department has complained for many years about restrictions that required separate court authorizations for each device used by the target of an investigation. This provision specifically allows for roving wiretaps against suspected spies and terrorists. The government claims that they have had this type of flexibility in criminal cases and that it is much needed in dealing with technologically sophisticated terrorists. Surveillance experts however, claim that criminal wiretaps must ascertain whether the person under investigation is the one using the device before the wiretap takes place. In order to move from one device to another, the government must make sure that the subject of the surveillance identified by the warrant currently uses that device. Civil libertarians claim that that the vague language of the USA PATRIOT Act could lead to privacy violations of innocent citizens that come into casual contact with the suspect (Abramson and Godoy 2006).
Under Section 206, FBI agents do not need to identify the suspect in order to obtain a wiretap authorization and install their communication surveillance devices. An undercover connection is installed in the neighborhood of the targeted individual or on the telephones of his or her relatives. It is not necessary to demonstrate in any way that the individual under surveillance even uses these telephones. This measure is known as a “John Doe” connection since the person in question does not have to be named before being subjected to surveillance. Under this section, the government can legally monitor the telephone of any individual, without having to show that that individual is connected with a foreign power, terrorism, or any criminal activity (Paye 2006).
Section 213 Sneak and Peek Warrants: this provision allows “sneak and peek” search warrants, which grants authorities authorization to search a home or business without immediately notifying the target of a probe. Investigators still have to explain why they want to delay the search notification and must eventually notify the target about the search (Abramson and Godoy 2006). Under this provision the FBI is permitted to enter a home or an office in the absence of the occupant. During this secret investigation, FBI agents are authorized to take photographs, examine computer hard drives, and install a device known as the Magic Lantern. Once installed, the Magic Lantern, records all computer activity not just those transmitted over the internet. The United States Justice Department claims that this provision has already allowed investigators to search the houses of drug dealers and other criminals without providing advance notice that might have jeopardized the investigation (Paye 2006). Critics claim that investigators already had the power to conduct secret searches in counterterrorism and counterespionage probes. They claim that the USA PATRIOT Act authorized the use of this technique for any crime, no matter how minor. Civil Libertarians claim that sneak and peek searches should be narrowly limited to cases in which an investigation would be seriously jeopardized by immediate notice (Abramson and Godoy 2006).
Section 215 Access to Records: this provision allows investigators to obtain “any tangible thing” including books, records, papers, documents and other items sought in connection with a terrorist investigation. This is probably the most hotly debated provision of the law and has become known as the “libraries provision.” This section does not require any individualized suspicion to get a court order for any record wanted in an intelligence investigation. It allows the FBI, by means of a secret authorization from a court, to have access to any and all personal data without having to demonstrate that the inquiry has anything to do with terrorism or a foreign power. No one is allowed to reveal to another person that the FBI sought to obtain or has obtained “tangible things” under this section. The new version of this article makes it possible to challenge this stipulation and the Justice Department has agreed that the recipient of a Section 215 order can consult with an attorney after a waiting period of one year. However, the government has the right to override such a challenge for reasons of national security (Paye 2006).
Critics of the USA PATRIOT Act attack the breadth of the provision, saying that the law could be used to demand the reading records of library or bookstore patrons. The Department of Justice has denied that Article 215 has ever been used to obtain library records. However, civil libertarians point out that since 2001, federal agents have visited several libraries and in fact, have obtained records from 178 of them. The real number of these requests may be much higher since the USA PATRIOT Act makes illegal any disclosure on the part of the institutions concerned (Abramson and Godoy 2006).
One of the reasons Section 215 is so controversial is due to Article 505 National Security Letters. This clause expands the possibilities for the FBI or other governmental agencies to obtain a National Security Letter. The letter is a type of administrative subpoena granting access to medical and financial data, as well as data from travel agencies, casinos, automobile rental agencies, and library records. The Bush administration has steadfastly refused to include a standard in this article expressly allowing doctors, lawyers, and priests to challenge any effort by government agents to get privileged communications from patients, clients, or penitents. The FBI is able to obtain authorization for these records outside the context of any counter-espionage investigation. The USA PATRIOT Act has led to a marked increase in the FBI’s use of National Security Letters, one hundred times the historic average. The FBI itself has admitted that National Security Letters allow the Bureau to collect information about citizens who are not suspected of any wrongdoing (Boykoff 2006). According to a report from the Justice Department’s Inspector General in March 2007, the FBI has issued about thirty thousand letters per year and one hundred forty three thousand requests for information through National Security Letters from 2003 to 2005 alone. Additionally, the report found that the Bureau had often used the letters improperly and sometimes illegally (Liptak 2007).
Section 218 Foreign Intelligence Wiretaps and Searches: Criminal investigators have a high bar to reach when asking for permission to wiretap or search a suspect’s home. This provision lowers the bar for launching foreign intelligence wiretaps and searches in counterterrorism or counterespionage probes, where investigators must only prove that the suspect is an “agent of a foreign power.” This provision authorizes secret searches of a residence or business, without notification, if there is a “reasonable presumption” to believe that the residence or business contains information relative to the activity of an agent of a foreign power. The existence of any proof or indication of a crime is not required.
Prior to the passage of the USA PATRIOT Act, federal agents and investigators had to certify that the primary objective of the search concerned obtaining intelligence in connection with the suspect foreigner (Paye 2006). This provision allows investigators to get a foreign intelligence wiretap or search order, even though they may end up bringing criminal charges against the suspect. The law now permits secret searches of anyone’s home, foreigner or United States citizen, on the mere suspicion that this individual is more or less linked to terrorism. Critics of the USA PATRIOT Act claim that investigators will too easily use spying and terrorism as an excuse to launch foreign intelligence and wiretap searches. Additionally, they point to the fact that the number of intelligence wiretaps now exceeds the number of criminal wiretaps. Civil libertarians claim that since these probes are conducted in secret, with little oversight, abuses could be difficult to uncover (Abramson and Godoy 2006).
The Foreign Intelligence Surveillance Act of 1978 (FISA) allows wiretapping of aliens and citizens in the United States based on a finding of probable cause to believe that the target is a member of a foreign terrorist group or an agent of a foreign power. The Federal Wiretap Act, sometimes referred to as Title III, was adopted in 1968 and expanded in 1986. It sets procedures for court authorization of real-time surveillance of all kinds of electronic communications, including voice, email, fax, and internet in criminal investigations. It normally requires that before a wiretap can commence, a court order is issued by a judge, who must conclude based on an affidavit submitted by the government, that there is probable cause to believe that a crime has been, is being, or is about to be committed (Center For Democracy Technology 2006).
Title III was incorporated into the USA PATRIOT Act and comprises the International Money Laundering Abatement and Anti-Terrorism Financing Act of 2001. The major focus of this Act is to affect how money flows through the borders of the United States. It was designed to help combat terrorism and help dismantle the finances used to fund terrorist activities. This Act is divided into three parts. Subtitle A implements measures that regulate international money laundering, shell banks, and correspondent accounts. Subtitle B amends the Bank Secrecy Act. The Bank Secrecy Act was specifically designed to combat money laundering by requiring banks to meet specified requirements. Subtitle B additionally, provides a new regulatory framework through the United States Treasury to aid in the detection and prosecution of laundered monies. Subtitle C creates new currency crimes and regulation procedures. This Act also created new penalties for smuggling cash across United States borders, for the prohibition of money transmitting businesses commonly known as hawalas, and for extraterritorial jurisdiction in the enforcement of these new provisions (d’Estree and Busby 2001). These are just a few of the many controversial provisions of the USA PATRIOT Act. The viewpoints on this subject are divergent and will be discussed in length.
Positions that support the USA PATRIOT Act
Following the attacks of September 11, 2001, the Bush administration sought to make a powerful statement to citizens, who were looking to the White House for leadership. The Bush administration emphasized the need for anti-terrorism legislation to be enacted quickly and with considerable support from Congress. In a hearing before the House Judiciary Committee on September 24, 2001 United States Attorney General John Ashcroft opened his statement on behalf of the proposed legislation with these words:
Mr. Chairman, and members of the Committee, the American people do not have the luxury of unlimited time in erecting the necessary defenses to future terrorist acts. The danger that darkened the United States of America and the civilized world on September 11 did not pass with the atrocities committed that day. They require that we provide law enforcement with the tools necessary to identify, dismantle, disrupt, and punish terrorist organizations before they strike again. (Ashcroft 2001)
Political solidarity became a potent strategy for a White House seeking to advance its legislative agenda in the aftermath of the terrorist attacks. Approximately one month later, on October 26, 2001, the USA PATRIOT Act, was adopted with overwhelming support in the Senate (98-1) and by a large majority in the House of Representatives (357-66) (Domke, et al. 2006).
Supporters of the USA PATRIOT Act maintain that presidents need a greater authority to act during war than in peacetime. The “War on Terror” has given proponents of broad executive authority an opportunity to assert and consolidate powers for the executive branch. Unlike new legal policies for detaining, interrogating and trying terrorism suspects, the USA PATRIOT Act has remained much as it was originally passed in 2001, despite legal challenges and renewal requirements. Congress has been reluctant to change or reject even the most sweeping provisions when they came up for renewal in 2005 (Krause 2007).
Prior to 1978, and dating back to at least World War II, attorney generals of the United States routinely authorized warrantless FBI surveillance, wiretaps, and break-ins for national security purposes. The practice was justified because obtaining a warrant in each disparate case resulted in inconsistent standards and posed unacceptable risks. Attorney generals were never entirely comfortable with warrantless searches, whose legality had never been confirmed by the Supreme Court, so in 1978, the Foreign Intelligence Surveillance Act (FISA) became law. This law enabled sitting district court judges to conduct secret hearings to approve or disapprove government applications for surveillance. It also authorized the gathering of foreign intelligence only for its own sake (primary purpose), and not for the possible criminal prosecution of any foreign agent (Bork 2003).
Supporters of the USA PATRIOT Act also believe that depriving certain captured individuals of access to lawyers and holding them without filing charges does not in any way violate the Geneva Convention. In order to qualify a person as a lawful combatant under the Geneva Convention, four criteria must be met. “He must be under the command of a person responsible for his subordinates; wear a fixed distinctive emblem recognizable at a distance, carry arms openly; and conduct operations in accordance with the laws and customs of war” (Bork 2003 p. 32). The men the United States has captured and detained so far in the “War on Terror” do not meet these criteria. Furthermore, according to United States policy, if a captured unlawful enemy combatant is believed to have further information about terrorism, he can be held without access to legal counsel and without charges being filed. Once the government is satisfied that it has all the relevant information it can obtain, the combatant can be held until the end of the hostilities, be released, or be brought up on charges before a criminal court (Bork 2003).
The detention of enemy combatants serves at least two vital purposes. First, detention prevents enemy combatants from rejoining the enemy and continuing to fight against America and her allies. In this respect, captivity is neither a punishment nor an act of vengeance, but instead a simple war measure. Second, detention in lieu of prosecution relives the burden on military commanders to litigate the circumstances of capture around the world. If a combatant is to be tried, the venue of choice is a military tribunal. Military tribunals have played an important and honorable role in American jurisprudence throughout our history. Military tribunals have been used by several Presidents in time of war. During the Revolutionary War, before there was a Constitution, George Washington used them frequently. Abraham Lincoln used them in the Civil War and Franklin Roosevelt used them in World War II (Bork 2003).
After the terrorist attacks of September 11, 2001, our country had no choice but to develop new techniques to combat terrorism. Law enforcement agencies and intelligence agencies alike were forced to devise new methods to protect our citizenry from the menace of violence and the potential use of weapons of mass destruction against our homeland. Prior to the attacks of September 11, 2001, governmental entities acknowledged that cooperation between law enforcement and intelligence agencies was less than ideal. Grand jury testimony and information obtained from court-authorized FBI wiretaps often could not legally be passed on to law enforcement and the intelligence community. Additionally, the transmission of intelligence information to law enforcement was inhibited due to fear of compromising sophisticated electronic surveillance techniques or jeopardizing the lives of under-cover operatives and cooperating witnesses. Since the passage of the USA PATRIOT Act, a broad national consensus has developed regarding the need to fully empower those to whom we have assigned the task of fighting terrorism. The Bush administration’s post-September 11, 2001 security measures were not only reasonable, but they sustained rather than undermined constitutional democracy since “democracy is endangered not when strong measures are taken to enhance safety, to protect and reassure the public, but when those measures are not taken” (Boykoff 2006 p. 470).
Positions that do not support the USA PATRIOT Act
When a nation faces deadly attacks on its citizens at home and abroad, it is only reasonable to expect that its leaders will take appropriate measures to increase security. Civil liberties can only survive under governments with the power to protect those liberties from attack. Civil liberties are guaranteed by the Constitution of the United States and imply the existence of an organized society that maintains public order without which liberty itself would be lost in the excesses of unrestrained abuses. Unfortunately, in the case of the USA PATRIOT Act, increased security leads to the systematic dismantling of civil liberties. Critics that do not support the USA PATRIOT Act, argue that the Act imposes “guilt by association” on aliens by requiring deportation of any alien associated with or endorsing a terrorist organization. Critics also assert that the detentions of aliens without a hearing or a showing that they pose a threat to national security are both standards below those provided to criminal defendants. Non-United States citizens, suspected of terrorist activities can be tried by special jurisdictions and detained for an indefinite period of time. These and other measures such as: detention based only on suspicion; confinement of witnesses; special rules on the communication between suspects and their attorneys; establishment of exceptional jurisdictions; were extended to law enforcement and intelligence agencies by a “Military Order” passed on November 13, 2001 (Thornburgh 2005) (Paye 2004).
Many believe that the USA PATRIOT Act has made life much more difficult for both Muslims and people of Middle Eastern descent living in the United States. Critics of the Act cite abuses and cases where they feel the government has gone too far in their pursuit of terrorist suspects. One such case that has fanned the flames of skepticism is the story of Sami Omar Al-Hussayen. Mr. Al-Hussayen was a Ph.D. candidate at the University of Idaho; he was a native of Saudi Arabia who lived in the United States for nine years studying computer science. In February 2003, the FBI raided his home. He was charged with three counts of terrorism, four counts of making false statements and seven counts of visa fraud. Mr. Al-Hussayen’s “crime” was helping design a web site for the Islamic Assembly of North America, which the government said promoted “radical Islamic ideology.” This type of work was prohibited by a USA PATRIOT Act provision that made it a crime to give “expert advice or assistance” to foreign terrorist groups. The state of Idaho stood by and watched as Mr. Al-Hussayen spent a year in prison while the government built its case. At his trial, the government insinuated that Mr. Al-Hussayen had terrorist ties based on his computer records. Mr. Al-Hussayen’s attorneys argued that the “expert advice” provision violated his First Amendment rights. In June 2004, Mr. Al-Hussayen was acquitted of all terrorism charges (Weigel 2005).
Title III of the USA PATRIOT Act scrutinizes the ways that money changes hands and is monitored in the post September 11, 2001 world. This section especially Subtitle A, has specific implications for commerce that are fundamentally international in nature. The Secretary of the Treasury has the power to impose certain regulatory restrictions on how banks and financial institutions do business with American firms, at home and abroad. The main theme that runs throughout Subtitle A is that law enforcement authorities in the United States must be able to identify to whom the money belongs, where it has been, and where it is going, in order to detect the movements of terrorist or other criminal funds. Subtitle C of the Act, makes the act of smuggling bulk cash a criminal offense and authorizes the forfeiture of any cash or instruments of bulk cash smuggling. Subtitle C also makes it a crime punishable by five years in prison to run an unlicensed money transmitting business. This provision specifically refers to hawalas, which is defined as an “alternative or parallel remittance system” (d’Estree and Busby 2001 p. 116). Immigrant workers in the United States annually send thirty billion dollars to relatives back home using hawala systems (d’Estree and Busby 2001). These financial flows help to lubricate developing third world countries economies. Hawala systems are ancient and are ingrained in many cultures from the Middle East to Africa and India. In the United States there are thousands of hawalas operating in ethnic grocery stores, travel agencies and notary offices. These “mom- and-pop” institutions lack the legal fortitude and political influence of major banking institutions and are receiving intense scrutiny since the passage of the USA PATRIOT Act. Only a tiny fraction of these hawala transfers are even suspected of having any ties to terrorist activities. There is far more evidence that implicates the traditional banking institutions in money laundering and terrorist funding activities. The USA PATRIOT Act affects the lives of specific people who are unrelated to terrorist activities, such as immigrants who are typically left out of the mainstream United States financial system. (d’Estree and Busby 2001).
The Bush administration’s strategic communications and accompanying news coverage did much to convert the public’s support after the terrorist attacks into tangible political capital, culminating in the passage of desired legislation such as the USA PATRIOT Act. Perhaps the most troubling side-effect of the “War on Terror” has been the temptation to imagine that the threats we face as so extreme that ordinary moral norms and laws do not apply. As Thurgood Marshall once stated:
History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure ... when we allow fundamental freedoms to be sacrificed in the name of real or perceived exigency, we invariably come to regret it.
After the Japanese attack on Pearl Harbor in December 1941, the government moved quickly to forcibly relocate and intern over one hundred-thousand Japanese-Americans, more than two-thirds of whom were American citizens. The government’s action was based not on individual suspicion or a sensible assessment of the threat, but on membership in a particular ethnic group. It is interest to note that at the height of World War II, the United States Supreme Court upheld this evacuation policy (Center for American Progress 2005).
An Army Manual defines terrorism as “the calculated use of violence or threat of violence to attain goals that are political, religious or ideological in nature” (Chomsky 2003 p. 605-606). This act of terrorism is carried out in various ways such as intimidation, coercion or instilling fear. Being safe and being free are not mutually exclusive. We do not gain one by giving up the other. The Constitution of the United States of America has survived many threats, including civil insurrections and world wars. It is precisely during times of crisis that rights must be most steadfastly defended. The protection of constitutional liberties need not, and indeed should not deprive the government of the authority necessary to vigorously apprehend terrorists, prosecute them and defend the homeland. America’s credibility in the world has been dangerously compromised by the Bush administration’s blatant disregard for the rule of law. The doctrine of preventive war, which was used to launch the “War on Terror,” accords the Bush administration the sovereign right to take military action at will to control and destroy any challenge it perceives (Chomsky 2003). The Bush doctrine is in essence a return to the claim of right to use force or any other means necessary to pursue national interests (O’Connell 2003).
This is not the first time in American history that political leaders advocated and justified the suspension of civil liberties by emphasizing national security and evoking feelings of nationalism. As Benjamin Franklin once noted, “If we surrender our liberty in the name of security, we shall have neither” (Thornburgh 2005). In order to regain respect in the eyes of the world, the president must comply with all international agreements to which the United States is a party. Additionally, the United States must comply with customary international law, including the Geneva Conventions and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. When we adopt the principle of universality we adhere to the premise: if an action is right or wrong for others, it is right or wrong for us as well. Those who do not rise to the minimal moral level of applying to themselves the standards they apply to others, cannot be taken seriously when they speak of right and wrong or good and evil. Only by respecting and obeying the law, as we compel other to do, can the United States enlist international cooperation in the “War on Terror.”(Center for American Progress 2005) (Chomsky 2002).
The USA PATRIOT Act Improvement and Reauthorization Act was signed into law on March 9, 2006.The Bush administration succeeded in avoiding the introduction of any restrictive judicial controls over permanent measures. Many of the provisions that had a “sunset” clause, meaning that once the clear and present danger dissipated they would disappear, did not happen. Instead, fourteen temporary measures, adopted in 2001 as emergency procedures, were made a permanent part of the Act. The “new” Act authorizes the imprisonment, for an indefinite period of time, of foreigners suspected of terrorism, without trial or indictment. It also establishes widespread surveillance of the entire population. It left unchecked the provisions that grant “sneak and peek” warrants and National Security Letters among others. Government actions and official proceedings should be as transparent as possible in times of war and peace. The government should be held accountable for its actions through our system of checks and balances as the founding fathers intended. Measures undertaken by the government should be narrowly tailored to the goal of enhancing our security not threatening our civil liberties. President Bush has been quoted as saying that “There’s no telling how many wars it will take to secure freedom in the homeland.” We are now in the midst of a new political order. We have moved from a state of emergency into a permanent state of exception with no end in sight. It is very difficult to tell if one is a terrorist or not until they have committed a terrorist act. Unwarranted suspicion renders even a perfect procedure useless and may push the associative guilt beyond the legislative intent. This “war” has not divided the terrorists it has divided the allies. (Paye 2006).
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