A Guide to the Patriot Act, Part 1

The law, lawyers, and the court.
Sept. 8 2003 11:06 AM

A Guide to the Patriot Act, Part 1

Should you be scared of the Patriot Act?

Illustration by Mark Alan Stamaty

What's hot for fall of 2003?

Well, the USA Patriot Act, for one thing. Although it passed in Congress almost without dissent in the aftermath of Sept. 11, it's suddenly being revisited, and this time around some of the folks holding opinions have actually read the thing. Among its detractors are 152 communities, including several major cities and three states, that have now passed resolutions denouncing the Patriot Act as an assault on civil liberties. More than one member of Congress has introduced legislation taking the teeth out of its most invasive provisions. And in a huge shock to the Justice Department, in July the so-called "Otter Amendment"—which de-funded the act's "sneak-and-peek" provision—passed in the House by a vote of 309-118. Introduced by a conservative Republican congressman from Idaho, C.L. "Butch" Otter, the amendment revealed the extent to which the Patriot Act engenders jitters across the political spectrum. Then there are the lawsuits, including one filed recently by the ACLU, urging the court to invalidate provisions of the act that threaten privacy or due process. All these reforms are wending their way through the system and the national consciousness as Americans start to take a sober second look at what the act really unleashed.

On the other hand, there's the John Ashcroft "Patriot Rocks" concert tour, launched last month, which has him visiting 18 cities and talking up the act to local law enforcement officials. The DOJ also unloosed a new Web site last month, designed to shore up support for the act. Ashcroft contends that had the Patriot Act been in place earlier, 9/11 wouldn't have happened and that absent a Patriot Act, the country may have seen more 9/11s over the past two years—a double-double negative that's unprovable, but enough to scare you witless. There have also been a raft of op-eds and articles—some evidently written by Ashcroft's U.S. attorneys at knifepoint—simultaneously making the point that the act has staved off unspeakable acts of terror while maintaining that it made only tiny infinitesimal changes to the existing laws.

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Part of the impetus for all the new activity is that some of the really great bits of the act are set to sunset in 2005, and some Republican senators are planning to introduce legislation to repeal the sunset provisions altogether. Copies of "Patriot II"—the act that was intended to follow Patriot and grant the government even broader powers—were leaked to the press last winter, and while the ensuing ruckus ensured that Patriot II is dead, much of it will evidently rise again this fall in the guise of the VICTORY Act, Orrin Hatch's attempt to deploy Patriot powers in the war on drugs. One of the reasons that Patriot is fighting for its life, then, is so that its creepy progeny may someday live as well.

How bad is Patriot, really? Hard to tell. The ACLU, in a new fact sheet challenging the DOJ Web site, wants you to believe that the act threatens our most basic civil liberties. Ashcroft and his roadies call the changes in law "modest and incremental." Since almost nobody has read the legislation, much of what we think we know about it comes third-hand and spun. Both advocates and opponents are guilty of fear-mongering and distortion in some instances.

The truth of the matter seems to be that while some portions of the Patriot Act are truly radical, others are benign. Parts of the act formalize and regulate government conduct that was unregulated—and potentially even more terrifying—before. Other parts clearly expand government powers and allow it to spy on ordinary citizens in new ways. But what is most frightening about the act is exacerbated by the lack of government candor in describing its implementation. FOIA requests have been half-answered, queries from the judiciary committee are blown off or classified. In the absence of any knowledge about how the act has been used, one isn't wrong to fear it in the abstract—to worry about its potential, since that is all we can know.

Ashcroft and his supporters on the stump cite a July 31 Fox News/Opinion Dynamics Poll showing that 91 percent of registered voters say the act had not affected their civil liberties. One follow-up question for them: How could they know?

If you haven't read all 300-plus pages of the legislation by now, you should. If you can't, in the following four-part series, Slate has attempted to summarize and synthesize the most controversial portions of the act so you can decide for yourself whether you want Patriot, and the Patriots that may follow, to be a part of your world. Part 1 tackles Section 215, the law dealing with private records. Part 2 will address changes to the Foreign Intelligence Surveillance Act, or FISA, and "sneak and peek" warrants. Part 3 will discuss new electronic surveillance, and Part 4 will discuss miscellaneous provisions, including alien detentions. 

Section 215, aka "Attack of the Angry Librarians"

Section 215 is one of the surprising lightning rods of the Patriot Act, engendering more protest, lawsuits, and congressional amendments than any other. In part this is because this section authorizes the government to march into a library and demand a list of everyone who's ever checked out a copy of My Secret Garden but also because those librarians are tough.

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