The sun rises on the US Patriot Act: four more years of American exceptionalism

Last week President Barrack Obama signed an extension to H.R. 2975, an Act to Provide Appropriate Tools Required to Intercept and Obstruct Terrorism Act (2001). It is commonly referred to as the Patriot Act.

The Patriot Act was put in place following the September 2001 attacks on America. The provisions expanded the abilities of law-enforcement officials to conduct surveillance of suspected terrorists both in the U.S. and abroad. A New York Times article from 2 October 2011, described its passage as: "the climax of a remarkable 18-hour period in which both the House and the Senate adopted complex, far-reaching antiterrorism legislation with little debate in an atmosphere of edgy alarm, as federal law enforcement officials warned that another attack could be imminent."

President George W. Bush signed the Act into law on 24 October 2001. It was estimated by the Congressional Budget Office that implementing the 2001 Patriot Act would cost about US$1 billion over the 2002-2006 period. The 2001 Act built upon a previous 1978 American statute, the Foreign Intelligence Surveillance Act. The 2001 Act substantially augmented the powers of American authorities (FBI, CIA, NSA, and American armed forces) in their acquisition of confidential information. Unlike other domestic criminal surveillance laws, such as the 1968 Omnibus Crime Control and Safe Streets Act (known as the 'Wiretap Act') federal authorities needed only to demonstrate probable cause to surveill a foreign agent or even a foreign state, even if there was no reason to believe a crime was imminent.

Signing of the Patriot Sunsets Extension Act (2011) renews three central federal powers: the 'roving wiretap' powers which allows ongoing electronic surveillance of foreign suspects regardless of communication device or location; the 'library provisions' power which allow a very broad range of personal material to be investigated; and the 'lone wolf' provisions which give the government authority to investigate foreigners, even if they have no known affiliation with terrorist groups. The only requirement for these provisions is that an order from secret federal courts are required.

Some Republicans claimed that the 2001 Patriot Act led to the killing of Osama bin Laden. Hence, its renewal was essential to protect American from possible retaliations for bin Laden's death. This view was supported by the Democrat's Senate Majority Leader Harry Reid (Nevada). Not all Republicans supported the renew of some aspects of the Patriot Act. Republican amendments sought to limit government authority to investigate gun records and financial transactions, seen as impinging on citizen's liberties. These were rejected before the vote began. Democrat efforts to include increased oversight and audits on the court orders were also rejected. In response, Democrat's Senator Patrick Leahy (Vermont) said he would introduce a separate oversight bill.

The Justice Department testified to the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security in March 2011 that roving wiretaps and warrants for business records were used sparingly. Justice Department testimony also claimed that the lone wolf authority had yet to be used. The American Civil Liberties Union (ACLU) argued court approvals for business record access jumped from 21 in 2009 to 96 in 2010. The civil liberties organisation contended the Patriot Act had blurred the line between investigations of actual terrorists and those not suspected of doing anything wrong.

The vote over the Patriot Sunsets Extension Act divided the American congress, just as it divides Americans. The House of Representatives voted 250 to 153, with 31 Republicans and 122 Democrats opposed. The Senate approved the bill 72 to 23 votes. Four Republicans - Rand Paul (Florida), Dean Hellero (Nevada), Mike Lee (Utah) and Lisa Murkowski (Alaska) joined 18 Democrats and Independent Senator Bernie Sanders of Vermont in voting against the measures. The Senate debate created unusual coalitions with the left's Al Franken (Minnesota) joined in support from Rand Paul, considered one of the most conservative Senators.

Senator Rand argued: "We shouldn't be fearful of freedom, we shouldn't be fearful of individual liberty." He rejected claims made by Senator Reid that he was "in favor of putting weapons in the hands of terrorists." Senator Mark Udall (Democrat, Colorado) argued that provisions of the Act such as collecting business records overly exposed law-abiding citizens to government scrutiny. "If we cannot limit investigations to terrorism or other nefarious activities, where do they end?" he asked. The Republican's Senate Minority Leader, Mitch McConnell (Kentucky) said after the vote: "Today's extension of the Patriot Act means that our intelligence community, military and law enforcement professionals will continue to have the tools they need to safeguard us from future attacks."

Just as the 2011 Act divided lawmakers over issues of liberties, security, scrutiny and safety the Patriot Act divides American voters. In February 2011, 42 per cent of American's surveyed by the Pew Research Centre said the Patriot Act was a necessary tool that helped the government find terrorists, 34 per cent said Act went too far and posed a threat to civil liberties.

The Concerned Citizens Against the Patriot Act (CCAPA) argue the Patriot Act contravenes the U.S. Bill of Rights. They argue that although the federal government is required by the provisions of the Constitution to respect individual citizen's basic rights, the most significant guarantees for individual civil rights are contained in the Bill of Rights (Amendments 1-10). The First Amendment, for example, guarantees freedom of religion, speech, and the press, the rights of peaceful assembly and petition.

In relation to the Patriot Act and the newly ratified Patriot Sunsets Extension Act the CCAPA argue that Amendment IV provides the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizure; 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. Yet the Patriot Act etal ensures that the government may search and seize Americans' papers and effects without probable cause to assist "terror investigation".

The CCAPA also claim that Amendment VI entitles accused criminals the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime has been committed; to be informed of the nature and cause of the accusation; to be confronted with the witnesses against then; and to have the assistance of counsel for defense. Under the anti-terrorism laws the government may jail Americans' and others indefinitely without a trial. Australian's have first hand experience of this, as David Hicks and Mamdouh Habib know.