The ACLU has analyzed specific parts of the Patriot Act and its implications, below, on civil liberties. Of particular concern are those provisions that deal with indefinite detention, expanded definition of terrorism, united judicial oversight, wiretapping and surveillance provisions. To find out more about the USA Patriot Act, please log onto www.aclu.org/congress
· Section 412 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (the “Act”) permits the indefinite detention of immigrants and other non-citizens. There is no requirement that those who are detained indefinitely must be removed because they are terrorists.
· Although section 412 allows for reviews of the cases of those detained at least every six months, there is no requirement that indefinite detainees ever be given a trial or a hearing in which the government would have to prove that they are, in fact, terrorists. Nor would other important procedural protections apply, such as the requirement of proof beyond a reasonable doubt (in criminal proceedings) or proof by “clear, convincing and unequivocal evidence” (in deportation proceedings). Instead, indefinite detention would apply merely on the basis of vague and unspecified allegations of threats to national security.
· Section 411 of the USA-PATRIOT Act, amending the Immigration and Nationality Act (the “INA), section 212(a)(3)(B), allows for the detention and deportation of individuals who provide lawful assistance to groups that are not designated as terrorist organizations.
· The Act amends the definition of terrorist activity to recently include use of a “weapon or other dangerous device?to cause substantial damage to property,” even if such damage created no danger of injury. Section 411, amending INA Section 212(a)(3)(B)(ii)(v). Under this definition, groups such as the WTO protesters who engage in minor vandalism, abortion foes who engage in civil disobedience, or the protesters at Vieques, Puerto Rico, who damage a fence, would be deemed terrorist organizations. Likewise, purely humanitarian assistance to the Northern Alliance, the Afghani opposition to the Taliban and Bin Laden, could be characterized as assistance to terrorist organizations.
· Section 411 of the Act punishes speech protected by the First Amendment, even the speech of lawful permanent residents. Immigrants may be found “inadmissible”, for advocacy that the Secretary of State determines undermines our anti-terrorist efforts. The advocacy does not have to incite “imminent lawless action,” as is required by the Supreme Court in Brandenburg v. Ohio, 395 U.S. 444, 449 (1969). Therefore, a lawful, permanent resident who makes a controversial speech could be barred from returning to his or her family in the US after a trip abroad.
· Sections 216 and 218 of the Act limit judicial oversight of electronic surveillance because they: (i) subject private internet communications to a minimal standard of review; (ii) permit law enforcement to obtain what amounts to a “blank warrant”; (iii) authorize scattershot intelligence wiretap orders that need not specify the place to be searched and which do not require that only the target‘s conversations be eavesdropped upon; and (iv) allow the FBI to use its “intelligence authority” to circumvent judicial review of the probable cause requirement of the Fourth Amendment.
· Section 213 of the Act would allow law enforcement agencies to delay giving notice when they conduct a search. This means that the government could enter a house, apartment, or office with a search warrant while the occupant is away, and search through property, take photographs, and in some cases, seize physical property and electronic communications, and not tell until later, circumventing the notice requirement of the Fourth Amendment.