Tuesday, March 9, 2010

Debate -- Is the Patriot Act Unconstitutional or Constitutional?

In my U.S. Foreign Policy class, I am writing a paper on whether certain controversial parts of the Patriot Act such as -- roving wiretaps, delayed notification searches and new authorities to obtain the library, credit card and health records of individuals who are not the subject of a criminal investigation but who might be of intelligence value in terrorism probes -- are in fact constitutional or not. So, I thought that this would be an interesting blog debate.

Here is a Q & A session that from The Washington Post in 2005 that took place regarding Americans' concerns about violation of privacy and the Patriot Act and their perceptions of its intrusiveness into their lives. The people who were on the panel answering questions included: Attorney General Alberto R. Gonzales, FBI Director Robert S. Mueller III and CIA Director Porter J. Goss

"From last week's hearings, it appears that there's broad support for the proposition that the act's provisions should be made permanent," with some changes, said Sen. John D. Rockefeller IV (D-W.Va.). Gonzales has proposed some technical modifications.

Civil rights groups and politicians, including conservative organizations, have criticized some provisions as lacking enough checks to avoid abuse. Members said their constituents continue to have fundamental questions, as Sen. Barbara A. Mikulski (D-Md.) put it, about "what agencies within the federal government can, quote, spy, or place American citizens under surveillance . . . Who does what, when?" It was a question easier asked than answered.

So can the CIA spy on the American people?" Mikulski asked Gonzales.

"The primary responsibility falls upon the Department of Justice, not the CIA."

"Can the CIA spy on the American -- " she tried again.

"No," answered Gonzales, only to be amended later by Mueller. "Surveillance of American citizens for national security matters is in the hands, generally, of the FBI," Mueller told Mikulski. "The investigation or development of intelligence overseas is in the hands of the CIA and NSA [National Security Agency]. And generally, I would say generally, they are not allowed to spy or to gather information on American citizens. But there are limited exceptions to that."

While the National Security Act prohibits the CIA from spying on U.S. citizens in the United States, the agency can, in limited cases, spy on U.S. citizens abroad who are in contact with foreigners who are the target of CIA surveillance for possible terrorism ties.

This is one piece of legislation that I have mixed feelings about. But, I do think that it is a necessary tool for U.S. citizens' safety. I also think that The Patriot Act does need to be revised and more specific in some areas.

I look forward to seeing everyone's well reasoned arguments.


Liberty said...

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The fourth amendment to the Constitution of the United States

Teresa said...

Thanks for stopping by and commenting.

There is one exception to that rule.

'For the more than 100 years after its ratification, the Fourth Amendment was of little value to criminal defendants because evidence seized by law enforcement in violation of the warrant or reasonableness requirements was still admissible during the defendant's prosecution. The Supreme Court dramatically changed Fourth Amendment jurisprudence when it handed down its decision in Weeks v. United States, 232 U.S. 383 (1914). Weeks involved the appeal of a defendant who had been convicted based on evidence that had been seized by a federal agent without a warrant or other constitutional justification. The Supreme Court reversed the defendant's conviction, thereby creating what is known as the "exclusionary rule." '

It would seem that since the Patriot Act also applies to the States that roving wiretaps and delayed notifications would be made in good faith also. It is similar to the police and their "exclusionary rule",if the police can get the warrant afterward. If not, then it would definitely be illegal.

Woodsterman (Odie) said...

WOW look at you two go. The conversation is really deep here. I'll have to stick around to see how it ends.

Most Rev. Gregori said...

It is my belief that most if not all of the Patriot act are unconstitutional. I also believe that the Patriot Act has more to do with controlling us then in protecting America. If those in Washington were so concerned with the security of the us, then why haven't they done anything about our borders?

Teresa said...

Yep. Its deep. Have a great night!!:)

Teresa said...

Most Rev. Gregori,
Thanks for stopping by and commenting.

I am having a change of heart. I used to think that the Pariot Act was totally legitimate but now I am definitely seeing some flaws in the Patriot Act. I would say about half is unconstitutional and half is constitutional.

But, one question- Since The Patriot Act was passed and is law doesn't that mean it is legitimate law but partially unconstitutional?

I mean something can be unconstitutional but loosely constitutional since it was indeed passed into law.

Liberty said...

Teresa- I think you're mistaken on what the exclusionary rule is. According to my research, the exclusionary rule is not that they can get a warrant after the trial and still be covered, but that evidence gained in unconstitutional means cannot be used.
This site has a good explanation: http://library.thinkquest.org/2760/exclude.htm

I would like to say the PATRIOT act, while it sounds great to keep us safe and all, has too much power. As I pointed out in my Define a Terrorist post over at my blog, how do we figure out what those statutes apply to, or who the government can pick up under it? The PATRIOT act (and its predecessor) is/was very unclear, and that is cause for concern.

Also, as Rev. Gregori pointed out, if our government cares so much about our security, why didn't they stop these people before they could enter the country? Most of the 9/11 hijackers came in under visas through Canada or Mexico, and proceeded to overstay those visas. If we had had a better immigration system in place, we could have ousted those men before they could do any damage.

"Since The Patriot Act was passed and is law doesn't that mean it is legitimate law but partially unconstitutional?"

Let me ask you- if Congress passed a law saying no one could pray to Jehovah/Jesus/God, would that be Constitutional just because Congress passed it?

Teresa said...


I looked at both that wikipedia website and another website to find out exactly what the exclusionary rule entailed. I was trying to see how our government could have applied the the exclusionary rule to those parts I mentioned in the Patriot Act.

I do agree with you totally about the closing of borders. 9/11 may have been prevented if our borders were secure properly. But, unfortunately, Bush was a globalist and wanted to extend our hand or further open our trade relations etc, up to South and Central America instead of fixing the border problem.

When I said this: "Since The Patriot Act was passed and is law doesn't that mean it is legitimate law but partially unconstitutional?"

My point was laws are supposed to accompany our Constitution, add to it, or work alongside the Constitution and when a new law is passed it is like an addition to the Constitution that we are obligated to adhere to.

Yes, I have come to the conclusion that there are parts of this bill that are unconstutional and must be fixed.

No. Because that would infringe upon our freedon of religion.

Look here from wikipedia: In United States v. Calandra, 414 U.S. 338 (1974), the Supreme Court ruled that grand juries may use allegedly illegally obtained evidence in questioning witnesses because, to hold otherwise, would interfere with the independence of grand jury. The issue of illegality of search should be adjudged in a subsequent proceeding, after the defendant has been indicted. In United States v. Leon, 468 U.S. 897 (1984), the Supreme Court, applying the "good faith" rule, held that evidence seized by officers relying in good faith on a warrant was still admissible, although the warrant was later found to be defective. Evidence would be excluded, however, if an officer dishonestly or recklessly prepared an affidavit to seek a warrant, the issuing magistrate abandoned his neutrality, or the warrant lacks sufficient particularity.

The Leon case applies only to search warrants. However, the Supreme Court held in Arizona v. Evans, 514 U.S. 1 (1995) and Herring v. United States (2009), that the exclusionary rule does not apply to evidence found due to negligence regarding a government database, as long as the arresting police officer relied on that database in "good faith" and that the negligence was not pervasive.[42][43][44] To what extent the "good faith" exception applies to warrantless seizures in other contexts remains unclear.

Liberty said...

"My point was laws are supposed to accompany our Constitution, add to it, or work alongside the Constitution and when a new law is passed it is like an addition to the Constitution that we are obligated to adhere to."

But when said laws go completely against the Constitution, whether in whole or in part, they are unconcstitutional. The PATRIOT act, which authorizes warrantless wiretaps (circumventing "unlawful") is hence unconstitutional.

Just as with the freedom of religion, the PATRIOT act takes away an integral part of the Constitution- the fourth amendment which protects us from brutality by police/military forces and protects the rule of law.

I had never heard of US-Calandra before. A bit interesting. Here's another link, explaining it more succintly, for the purposes of debate:
Here's a more thorough overview of the case:

Anyway- I find this case interesting because, from what it sounds like in the Cornell website, they had a warrant to search his property, the records were "in plain sight", and so under the exclusionary rule. Of course, there are also other considerations- does the fact that those records were not under the warrant mean it was an unconstitutional seizure? I would say "probably," just because, once again, there's a fine line to walk there. Of course, under US-Calandra, a witness/defendant cannot now decline to answer a question merely on those grounds- which is wrong, in my honest opinion. :P Of course, there's always the fifth amendment, which states that a defendant does not have to testify against himself.

I would say that a) under the PATRIOT act, law enforcement should still get a warrant. If they don't, any evidence gathered should be considered unconstitutional. Of course, US-Calandra puts a hitch in that, since it basically nullifies the exclusionary rule.

Herring-US is also interesting, and raises a fascinating question. But I'm running out of room to tell you all my rambling. >.> See what happens when I get interested in a certain line of research? :P

Kevin T. Rice said...

"The PATRIOT act, which authorizes warrantless wiretaps (circumventing 'unlawful') is hence unconstitutional."

Take what you wish from this fact, but it may be worthwhile to point out that the fourth amendment does not define searches/seizures (wiretaps presumably falling into that category) as lawful based on warrants. That may be implied, but it is not stated. The fourth amendment, as quoted accurately above, does not prohibit "unlawful" government intrusion on the security of persons and their property, papers an effects. That would be a tautologically trivial statement that would have no intelligble content and applicable force. The fourth amendment does not even specifically forbit warrantless searches, at least not explicitly. What it prohibits is "unreasonable" searches and seizures (and presumably "unreasonable" wiretaps). But who determines what is "unreasonable", and what are the criteria that determine this?

It seems to me that the laws on searches and surveillance with respect to the fourth amendment both before and after the Patriot Act, recounted here with relevant court cases, are characterized by flaws of inconsistency that result from an ambiguity already present in the text of the Bill of Rights.

Woodsterman (Odie) said...

The Patriot Act was designed to protect us from terrorists. It is unconstitutional, but designed to get into terrorists lairs quickly. It should frighten all of us that "IT" is in the hands of an ever more intrusive federal government.

Liberty said...

Kevin- thanks for pointing out my error. :)

According to my understanding of Constitutional law and the fourth amendment, the two parts of the amendment both work together. First, "unreasonable" searches are prohibited, and then the amendment continues to give a "probable cause" clause.

According to my understanding, "probable cause" is regarded to be the same as "reasonable." In other words, a judge has to provide a warrant, and the burden of proving that there is probable cause/reason is up to law enforcement.

I'm thinking there are other places in the legal code we could find warrants/etc., but the few sites that have the legal code in its entirety have messed-up links. And, that code wasn't made for easy research. But according to what I could find-
^ Reasons for issuing a warrant ("probable cause")

From this overview of Weeks-US:
"of their private papers in support of charges, real or imaginary, make against them. Such practices had also received sanction under warrants and seizures under the so-called writs of assistance, issued in the American colonies. See 2 Watson, Const. 1414 et seq. Resistance to these practices had established the principle which was enacted into the fundamental law in the 4th Amendment, that a man's house was his castle, and not to be invaded by any general authority to search and seize his goods and papers. Judge Cooley, in his Constitutional Limitations, pp. 425, 426, in treating of this feature of our Constitution said: 'The maxim that 'every man's house is his castle' is made a part of our constitutional law in the clauses prohibiting unreasonable searches and seizures, and has always been looked upon as of high value to the citizen.'...In Ex parte Jackson, 96 U.S. 727, 733 , 24 S. L. ed. 877, 879, this court recognized the principle of protection as applicable to letters and sealed packages in the mail, and held that, consistently [232 U.S. 383, 391] with this guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures, such matter could only be opened and examined upon warrants issued on oath or affirmation, particularly describing the thing to be seized, 'as is required when papers are subjected to search in one's own household.' "

Kevin T. Rice said...

Thank you, Liberty, for the excellent information. The way of understanding the fourth amendment that you have presented is certainly traditional and has significant support in legal precedent.

My feelings about the Patriot Act are mixed. When it comes to spying on American's phone conversations with people in other countries, on the one hand, it is odd for Americans to presume an expectation of privacy for such conversations when they could always have been listened to by the foreign government. On the other hand, we did not have to worry about the foreign government coming to our house to arrest us, and we had the right to at least expect that our own government wasn't spying on us without probable cause. For my part, I found it most revealing that the Bush administration was furious when this was made public. I could see getting angry if the story was false (or if they were broadcasting the next target for a military offense in Iraq) but they administation was mad because the media did its job and reported the truth. That's not how it is supposed to be in a free country.

This is a departure from the conversation, but I can't help wondering why liberals who railed against the Patriot Act under Bush are notoriously silent about it now that Obama has re-authorized it.

Liberty said...

I too find it revealing that the Bush admin wasn't thrilled about the leak. A bit strange considering how it was supposed to keep us all so safe- wouldn't they want ordinary people to know about it so they could be reassured that they were safe?

Liberals are doing the same with the war. Of course, that is a two-way street. Republicans got mad when Gore proposed a plan similar to the PATRIOT act, but when Bush passed it, you'd think it was manna from heaven.
(I searched fro Gore's proposal but couldn't find it. Apparently it was proposed back in the Dark Ages before internet. XD JK)

Anyway, back to the topic.
If found a very good summary of the PATRIOT act here:

Teresa said...

Those cases you mentioned to Kevin do set a precedent for the Patriot Act being uncontitutional. But, there is much ambiguity because of additional previous laws also.

Here a few exceptions to the exclusionary rule:

Here is Terry vs. Ohio which justifies a warrantless search without having probable cause, but based on suspicion.


Nix vs. Williams



In 1996, during the Clinton administration Congress adopted this:"Anti-Terrorism and Effective Death Penalty Act of 1996,"

The key provisions of the Patriot Act are actually incorporated from an anti-terrorism measure proposed by the Clinton Administration and adopted by Congress in 1996. This Act was passed after the Oklahoma City bombings by Tim McVeigh.



Liberty said...

I think the "good faith" rule is, once again, a fine line to walk. While on the one hand we do need our police officers to have the ability to act with some degree of autonomy, at the same time, we want to be able to have some rights left so that we, the civilians they are supposed to protect, are not brutalized and taken advantage of.

According to the summary conducted by Cornell (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0392_0001_ZS.html)
"Where a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous [p3] regardless of whether he has probable cause to arrest that individual for crime or the absolute certainty that the individual is armed."
The one thing I see wrong with that is that who decides what a "reasonably prudent" officer is?

Nix vs. Williams was interesting in that the information came from the suspect's own mouth, and without him being able to prove that the officers in some way coerced him to gain the information, it would be probably be treated like any other confession situation (But, as I read on FindLaw, the SC later decided that his right to counsel had been violated, though his statements were still used on the grounds that the information would have been discovered in any case.)

I've read a bit about the 1996 act, and I could go on about it for awhile too, but to make a long discussion short- I think it was unconstitutional too, mostly because it was so ill written and vague in its statutes. Not a very good way to go about writing bills.

Teresa said...

I found a brief summary on the Gore-Clinton Act.


Its seems like Republicans were pushing their own provisions or version of that act.

Here Republicans call the plan useless: http://www.govexec.com/dailyfed/0698/061098b1.htm

Teresa said...


While I agree that the Patriot Act needs to be revised and their needs to be additional safeguards to protect the privacy of citizens, I don't believe that (as we've seen in court cases with regards to the Constitution) with regards to new laws and the Constitution that it is as black and white as saying a particular law is unconstitutional or constitutional. It seems as though there is much gray area in the middle to provide for both our safety and defense, and our privacy.

Liberty said...

"...with regards to new laws and the Constitution that it is as black and white as saying a particular law is unconstitutional or constitutional."

I would disagree. The Constitution is pretty black-and-white. This you can do, this you can't. The Founding Fathers said things and many of them were very black-and-white. They gave future generations no gray playgrounds, or tried not to.

Since the PATRIOT act infringes upon rights guaranteed us by the Constitution (fourth amendment, right to be free from unreasonable/warrantless searches and seizures), it is hence unconstitutional. According to my research, the good faith rule only applies when a police officer is on his beat and sees suspicious behavior. If he sees somebody planting a bomb, then that would most likely fall under said good faith rule. If it involves breaking into my home without a warrant, it is infringing upon my fourth amendment rights.

The PATRIOT act gives the government- any government, be it Republican, Democrat, or Independent run- too much power. I wouldn't even trust that much power with a Libertarian President and Congress, and certainly not with the fascists we've had in office the last several decades.

Kevin T. Rice said...

Liberty, are you familiar with the fallacy that goes by the Latin name "petitio principii" (begging the question)? You commit it in your last post. You begin an argument with the conclusion you need to support built explicitly into your initial premise.

Separate issue: No gray area? The constitution is all black-and-white? If that were so, we wouldn't need the courts to interpret the law, but according to the constitution, we so. As I pointed out earlier, the term "unreasonable" in the fourth amendment was left undefined, which meant that it was left for the courts to work out the details. You offered a very reasonable interpretation with a firm history in tradition and precendent, that had to be worked out later as more laws were passed and were challenged, and rulings laid down.

One gray area that the founders consciously and deliberately left for later generations to work out was slavery. There was no unanimity of opinion on it. Some of he founders who owned slaves themselves felt that it was wrong and that slavery should be abolished (e.g. Thomas Jefferson).

Liberty said...

Kevin- I apologize if I did so. I have yet to fully work out the nuances of debate. :P

I see your point with the gray area, and I concede. I do think however that many areas of the Constitution can be easily interpreted by ordinary people, and were written so that ordinary people could understand (unlike laws today). I also think it is the duty of Americans to read the Constitution and draw their own interpretations, and act accordingly. Of course, they can always seek a second opinion, but it's like with the Bible- only you can truly decide what it means to you.

Kevin T. Rice said...

No need to apologize Libby - the concession is more than adequate and quite gracious. At your age I had never heard of any of the fallacies, and consequently I committed such fallacies often. I wasn't nearly as skilled as you are in debate or persuasive writing. You're way ahead of the game.

Question-begging is one of the most common fallacies - it is easy to fall into because there are times when your premises imply your conclusion in a total legitimate way, e.g., when an argument is valid. It isn't always easy to tell the difference between a valid argument and a petitio principii fallacy.

Kevin T. Rice said...

I meant to include this in my last comment but I got bogged down talking about fallacies - I quite agree that there is a great deal in the constitution that is easy for ordinary people to understand. It is has a perspicuity that the laws we write today totally lack. Every American should read the constitution and do his or her best to understand it, both independently and in light of how it has been interpreted by the courts, esp. the Supreme Court. I find the Biblical analogy particularly apt. Just as the constitution has within its text a provision that it will not be subject to private interpretation as its only standard, but that there will be an authorized interpretation by a body of judges competent to make such decisions, the Bible is historically situated within the Church Christ founded, and thus its interpretation is not so up for grabs as to be determined solely by each individual for himself or herself, with no connection to doctrinal traditions that connect the contemporary reader through the generations, across the centuries, back to those who first recieved those teachings orally.

Liberty said...

Definitely. Paying attention to the traditions/rulings connected with things like law/the Bible is very important. It gives perspective on the issue at hand.