Civil Liberties Safeguards: Mitigating Potential Governmental Infringements of Civil Liberties

Portions of the USA PATRIOT Act seek to protect American citizens against infringements of their civil liberties, especially against discrimination based on religion or national origin.  In separate sections of the Act, Congress condemned discrimination against Arab Americans, Muslim Americans, Americans from South Asia, and Sikh Americans (sections 102, 1002).  The Inspector General of the Department of Justice is required to “review information and receive complaints alleging abuses of civil rights and civil liberties” and report twice-yearly to the House and Senate about findings of abuses (section 1001).

The PATRIOT Act also has some protection for the privacy of subjects of an investigation. Agency heads can discipline federal officers and employees for willful disclosure of information pertinent to an investigation (section 223).  The section also imposes civil liability for such violations and creates a cause of action against the United States for individuals victimized by intentional violations of federal wiretap and stored communication laws, or the FISA requirements relating to surveillance, physical searches or the use or installation of pen registers/trap and trace devices.  (Section 223 is also part of the discussion under Institutional Capacity: Part B.)

Congress created a "sunset" provision in the PATRIOT Act, specifying that “this title and the amendments made by this title (other than sections 203(a), 203(c), 205, 208, 210, 211, 213, 216, 219, 221, and 222, and the amendments made by those sections) shall cease to have effect on December 31, 2005,” unless reviewed and renewed by Congress (section 224). On July 21, 2005, the House of Representatives voted to repeal the sunset provision except that sections 206 and 215 of the Act will sunset on December 31, 2015. H.R. Res. 3199, 109th Cong. (2005).   The sunset limitation is subject to certain exceptions.  Specifically, any particular foreign intelligence investigation that began before December 31st, 2005, and any "potential offense" that began or occurred before December 31st, 2005, may not be subject to the requirements for renewal. Litigation over the sunset provision—should it go into effect because of Congressional inaction—will turn on the definition of the term “potential offense” in the context of the exceptions.  Cf. Martha Minow, What is the Greatest Evil? The Lesser Evil: Political Ethics in an Age of Terror by Michael Ignatieff, 118 Harv. L. Rev. 2134, 2169 n.30 (2005) (noting that in addition to necessarily reviewing the Patriot Act’s sunset provisions, Congress may review all the Patriot Act’s provisions since there are no clear obstacles to doing so).

PATRIOT Act Provisions

• Instructs that the Act may be cited in shorthand as the “USA PATRIOT ACT” and that its provisions should be given maximum effect (?? 1, 2).
• Expresses Congress’ Condemnation of Discrimination against Arab, Muslim, South Asian (? 102) and Sikh Americans (? 1002).
• Directs the Inspection General of the DOJ to appoint a Deputy Inspector General for Civil Rights, Civil Liberties, and the FBI, who shall be responsible for supervising independent oversight of the FBI until September 30, 2004, and who shall review all information alleging abuses of civil rights, civil liberties, and racial and ethnic profiling by members of the DOJ (? 1001).
• Allows agency heads to discipline federal officers and employees for willful or intentional violations of federal wiretap or stored communications law; imposes civil liability for such violations; creates a cause of action against the United States for individuals victimized by willful violations of federal wiretap law, the stored communication proscriptions, or the FISA requirements relating to surveillance, physical searches, or the use or installation of pen registers/trap and trace devices (? 223).
• Specifies that portions of  Title II and amendments made by it shall expire on December 31, 2005, subject to Congressional review. Such sunset is subject to certain exceptions, specifically, any particular foreign intelligence investigation that began before December 31, 2005, or any particular offense or potential offense that began or occurred before December 31, 2005 (? 224).

Other Relevant Provisions

• Creates a Privacy and Civil Liberties Oversight Board with power to investigate civil liberties violations in the intelligence community. The board does not have the authority to issue subpoenas. Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638 (2004).
• Directs that the new department of Homeland Security (see the section on enhancing institutional capacity) has a privacy officer with the responsibility to safeguard civil liberties. Homeland Security Act of 2002 Pub. L. No. 107- 296, 116 Stat. 2135 (2002). 

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