Patriot Act: Ten Years Late?

Supporters say the act's enhancement of information sharing would have helped connect the dots between terrorists.

by / July 9, 2004
Law enforcement refers to it as "the wall." They say it prevented authorities from sharing information on suspected terrorists, thwarting efforts to connect the dots between suspects. They say the USA Patriot Act eliminated that wall, making it easier to track suspected terrorists.

The wall resulted from the Foreign Intelligence Surveillance Act (FISA) of 1978, which sought to protect citizens from excessive government intrusion. Under FISA, law enforcement could obtain permission from a federal judge to electronically monitor an individual if the "primary purpose" was to obtain foreign intelligence. Information gathered through these means, however, couldn't be shared for domestic law enforcement purposes.

Under FISA, law enforcement could go to a federal judge, suggest there was reason to believe an individual was dealing with suspected terrorists or terrorist countries, and get approval to monitor that individual with a wiretap or other means.

The court's expectation was that information gathered under a FISA subpoena would not be shared -- not even with another law enforcement officer conducting a criminal investigation. No overlap between criminal investigations and intelligence investigations was allowed. That was to prevent law enforcement from getting foreign-intelligence-gathering subpoenas, which are easier to obtain, and using them for other purposes -- thus the wall.

The Patriot Act, under Title II, does two things: It allows FISA subpoenas for the "significant purpose" of foreign intelligence gathering, rather than for the "primary purpose." It also allows law enforcement to share the information gathered from that subpoena.

The Patriot Act, according to law enforcement, has enabled them to "connect the dots" on suspected terrorists by trading information and piecing together clues, which was more difficult before the act. As proof, law enforcement points to arrests in Portland, Ore., Detroit and New York, and the fact that there have been no more attacks.

In the Portland arrests, sheriffs in neighboring Washington state linked a criminal case to suspected terrorists, which couldn't have been done before the Patriot Act. In Detroit, a man sought by terrorism investigators was held on charges of credit card fraud.

"Whether it's Portland, Detroit or New York, and several others I can't talk about, the information sharing enabled by the Patriot Act enabled us to bring these cases [to trial]," said U.S. Justice Department Director of Public Affairs Mark Corallo. "It has made all the difference in the world. FBI counterintelligence and FBI regular law enforcement couldn't talk in the past."

John Pikus, acting special agent in charge for the Sacramento, Calif., FBI office, said the Patriot Act eliminated frustration felt by agents in recent years.

"An intelligence investigation on some overseas figure may have had contact with people domestically, but we weren't allowed to know that," he said. "That information just never got passed to the criminal guys."

Terrorists often engage in other criminal activities, sometimes to supplement their terrorism efforts, Pikus said, so law enforcement must be allowed to combine criminal and intelligence forces. "It could be that you're doing drug stuff to supplement your terrorism or you're moving contraband to move money overseas to the terrorist organization," he said. "Up until the Patriot Act, if I had a FISA wiretap on you, I could not do a criminal case against you. I'd have to assign it to another agent."

Secret Court
Critics of the FISA court call it the "secret court" because rulings made there are classified. "But we all know it's there, and we all know who the judges are," Corallo said.

The FISA judges, 11 district court judges, have the authority to grant a subpoena to investigate a non-U.S. citizen believed to be engaged in international terrorism or foreign spying, or if the case involves national security, according to Corallo.

"A pretty narrow set of circumstances," he said.

The difficulties of sharing data have hampered investigations for years, Pikus said. "Some people say it was a rush to get [the Patriot Act] passed following 9/11. We say it was probably about 10 years too late. It really would have helped us in 1993 in the first bombing of the Trade Center."

It also might have helped prevent bombings in Kenya and Tanzania during the late 1990s, he said. There was information beforehand on the intelligence side that never was developed domestically, Pikus added. The dots were never connected. "How are you supposed to connect the dots if you don't even know what dots are out there?" said Corallo.

Technological Void
The FBI is noted for being technologically behind in its ability to share and access data. The Patriot Act may also have provided a bridge for much-needed technological advances

The FBI's archaic computer capabilities have been publicly documented, and the organization is scrambling to replace its 1980s technology. It could be argued the information sharing enabled by the Patriot Act would have precipitated a move by the FBI to upgrade its technology sooner.

"I should be able to delve into [information] quickly," Pikus said. "Like an ocean of information, you throw in a name and the system should have the ability to work that name and identify people. We are in the process of developing that."

The many restrictions imposed on law enforcement before the Patriot Act caused a "lack of interest" among FBI personnel to tackle intelligence during the 1980s and 1990s, according to Pikus. The restrictions were the result of tumultuous times during the 1950s, 1960s and 1970s, when the FBI was known to do "black bag jobs," which included conducting searches without a warrant and not telling anyone.

Pikus said that behavior doesn't happen now. "I've run the terrorism program for the last two years, and I don't have agents knocking on doors at two in the morning without search warrants or going to libraries demanding information. If we do have cases on individuals, it's based on solid information that they are in contact with individuals you would want us to be looking at."

Reduces Administrative Burdens
The section of the Patriot Act that leveled the wall is the one critics mention the least, Corallo said, because it is the hardest to attack. "In the Patriot Act, you have oversight at the case-specific level by federal judges, and at the systemic level by Congress, which really doesn't exist anywhere else in American law."

Title II of the Patriot Act, experts say, doesn't give law enforcement any more authority. It just defines and refines the way they can collect and use information. It also makes it easier for law enforcement to obtain evidence in some situations, such as e-mail attachments that contain voice recordings, according to the National White Collar Crime Center (NW3C).

"Largely the investigative enhancements in the Patriot Act [Title II] concentrated on reducing the administrative burdens on law enforcement," said Christian Desilets, NW3C research attorney. "The Patriot Act didn't give law enforcement a carte blanche to violate our electronic privacy. It merely cleared up some gray areas in the law and made authorized investigations easier to coordinate."

Supporters say the Patriot Act brings current law up to date with modern technology, such as cellular and satellite phones, which terrorists have become adept at using.

Since 1986, law enforcement working on domestic criminal cases have been allowed to use roving wiretaps, which track suspects even as they change phones. But until the Patriot Act, roving wiretaps could not be used in a terrorism case.

Despite that, more than 200 communities around the country have passed nonbinding resolutions opposing the Patriot Act. "We like to point out that there are over 18,000 municipalities and cities in America," Corallo said. He called most of the resolutions "cookie-cutter off the ACLU [American Civil Liberties Union] Web site. It's sad because a lot of them don't want to hear the facts about it, and they should because this is something most members of Congress voted for and most still support."

Polls show 70 percent to 75 percent of Americans approve of the 300-plus-page act, Carallo said, citing a recent poll in a Baton Rouge, La., newspaper, The Advocate, where nearly 75 percent of those polled felt freedoms were not being severely restricted.

Congress created the FISA court in 1978 to protect the country from spies and foreign terrorists, but defined its authority strictly to assure the protection of civil liberties. "They said we can't have the FBI wiretapping Martin Luther King anymore under the guise of a national security investigation," Corallo said. "So they injected the Congress and the federal judiciary into the process to provide oversight.

"There is not a perfect system, but this is rigorous system where federal judges get to decide the information you're looking for fits into [the right] category," he continued. "It's a big improvement."