The Constitutionality of the Patriot Act: Examining Section 213
In the aftermath of September 11, Congress was eager to put laws on the books to prevent another attack. In an unprecedented spirit of bipartisan patriotism, a law was passed in the House by 357 to 66 (Clerk of the House) and in the Senate by 98 to 1 (Secretary of the Senate). The title of the act, USA PATRIOT Act, is an acronym for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism. Since its historic passage there has been much debate on the constitutionality of the act. Some would claim the Legislative and Executive branches acted opportunistically and enacted a law that infringes on the rights of Americans. This paper, for sake of brevity, focuses on Section 213 of the Patriot Act, the “sneak and peak” section. The purpose of this paper is to evaluate the arguments on both sides of the issues and determine whether or not Section 213 of the USA PATRIOT Act is indeed unconstitutional. This paper examines the history of the Patriot Act, evaluates recent litigation concerning this act, and considers precedents that would give or withhold from Congress the authority to enact such a law.
This first section provides a brief explanation of the history of the Patriot Act. A common misconception about the Patriot Act is that it takes away personal liberty and is an unprecedented power grab by the federal government. What most people do not realize is that the Patriot Act, for the most part, only amends and updates current law, as opposed to creating entirely new laws. In his remarks on the Senate floor while pushing for passage of this act, Senator Patrick Leahy acknowledged that some of the amendments presented for consideration may have been unconstitutional. Leahy said, “After that terrible day of September 11, we began looking at our laws, and what we might do. Fortunately for the country . . . we took time to look at it, we took time to read it, and we took time to remove those parts that were unconstitutional and those parts that would have actually hurt liberties of all Americans” (Leahy). There have been a few dark moments in the history of the United States where individual freedoms, guaranteed by our Constitution, have been trampled. The Alien and Sedition Acts, the suspension of habeus corpus during the Civil War, and the internment of the Japanese during WWII are glaring examples of good intentions for the purpose of national security run amuck.
Congress and President Bush were careful not to fall into that trap. After the September 11 attacks, President George W. Bush declared a war on terror and signed the USA PATRIOT Act. The purpose of the law was to provide U.S. law enforcement agencies more authority and more resources for investigating criminal and terrorist acts. The authority that was granted by the Act was supposed to make it easier to catch terrorists, discourage terrorists from carrying out their plots, and stop terrorist actions before they started. At the time, this was exactly what Americans wanted: a plan signed into law by Congress that would make it easier to foil plots that were taking place here on our soil. However, some would say that the Act was signed into law quickly and without much debate, because America needed some kind of reassurance after the worst attacks on our country. On September 19, 2001, only eight days after the attacks, Attorney General John Ashcroft met with members of the Senate and House and began work on a bill to accomplish the above stated goals.
One reason for the controversy surrounding Section 213, is the alleged lack of continual congressional oversight. Often, Congress will add a “sunset clause” to controversial pieces of legislation as a way to provide continual congressional oversight on a piece of legislation. It requires that a particular section or the entire piece of legislation must be re-passed regularly, or else the legislation becomes void. Many portions of the Patriot Act do have a sunset clause, but Section 213 does not. Section 213 amended the Omnibus Crime Control and State Streets Act of 1968 to allow the authorities to delay the presentation of a search warrant, if there is “reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result” (USA PATRIOT Act). The purpose of this section is to provide law enforcement officials the ability to seize evidence, without prior notification of the suspect, in order to prevent suspects from hiding evidence or, once realizing their inevitable capture, carrying out terrorist plots. This section has been misrepresented all too often. The proper implementation of this section allows investigators to search the homes of suspects, without providing notice that might jeopardize an investigation. Investigators are still required, though, to explain why they want to delay notice, and must eventually tell the suspect about the search.
This second section of the paper will focus on recent litigation concerning Section 213. The legality of these searches was first challenged in Katz v. United States. In Katz, the Supreme Court held that the requirements of the Fourth Amendment applied equally to electronic surveillance and to physical searches, including “delayed-warrant searches” (389 U.S. 347). However, in Katz, the Court did not address whether such requirements apply to issues of national security. Shortly after, though, the Court took up the issue in United States v. United States District Court, Plamondon (407 U.S. 297). The court held that court approval was required only for the domestic surveillance in order to satisfy the Fourth Amendment. In United States v. Nicholson, the defendant moved to suppress all evidence gathered under a “sneak and peak” warrant (955 F.Supp. 588 Va. 1997). The court denied the motion and rejected claims that FISA violated either the Fourth or Fifth Amendment. In Wilson v. Arkansas, the Supreme Court held that police officers must "knock and announce" before entering a house. The “knock and announce” doctrine would seem to eliminate the ability to conduct “sneak and peak” searches.
However, in his opinion Justice Clarence Thomas wrote that the "Fourth Amendment's flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests.” Those interests include situations, "where police officers have reason to believe that evidence would likely be destroyed if advance notice were given" (514 U.S. 927 1995). After this ruling, the standard was set that if there was probable cause, law enforcement would be able to bypass the “knock and announce” requirement. Later, in Richards v. Wisconsin, however, the requirement of probable cause was replaced with reasonable suspicion. "The reasonable suspicion . . . standard--as opposed to a probable cause requirement--strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no notice searches” (520 U.S. 385 1997).
Section 213 is constitutional based on the prevailing understanding that the Fourth Amendment does not condemn delayed notice warrants. When a search is conducted under a warrant, issued by a court order, it adopts the delayed notification standards of 18 U.S.C, Section 2705, which have been found to be constitutional by the multiple court rulings stated. In United States v. Freitas, the Ninth Circuit considered the constitutionality of a search warrant, during a criminal investigation, allowing surreptitious entry without revealing the existence of the investigation. While the court ruled that the covert search was permissible, it further held that the warrant's failure to specify when notice must be given was impermissible. The court set as a standard that notice must be given within "a reasonable, but short, time" and ruled that that period could not exceed seven days absent "a strong showing of necessity” (800 F.2d 1451 9th Cir. 1986).
This third section examines legal precedents that would give or withhold from Congress the ability to enact Section 213 of the Patriot Act. According to the Fourth Amendment an individual is protected from unreasonable searches, unspecified searches, and searches without a warrant. The legality of the “sneak and peek” provision is affected by conflicting interpretations of the Fourth Amendment. The searches are conducted with a search warrant, and they are conducted with specific targets in mind. The biggest question here is, “Is the search reasonable?” Prior to the Patriot Act, there was no statutory authorization for clandestine searches of private premises in criminal investigations, however FISA (the Foreign Intelligence Surveillance Act) introduced these types of searches, but strictly for national security purposes. FISA, which became a model for the Patriot Act, was first passed in 1978. FISA opened the door for future “enhanced surveillance techniques.” FISA allowed “sneak and peak” searches, but only if the property was solely used by a foreign entity, the individuals suspected were foreign agents, and the matter being investigated involved national security (FISA). The Counterintelligence and Security Enhancements Act of 1994 amended FISA to “authorize the President, acting through the Attorney General, to authorize physical searches for foreign intelligence purposes without a court order for periods of up to 1 year (FISA).” President Clinton, by Executive Order 12949, extended the ability to authorize these warrants to members of his cabinet. By 1994, “sneak and peak” searches could be authorized by members of the Cabinet, the FISA court, and the President. Section 213 of the Patriot Act did not create delayed-notice search warrants, nor did it expand the use of delayed-notice warrants. It merely expanded the application of FISA. Section 213 codified the authority that law enforcement had already possessed for decades, clarified the standard for its application, and established a uniform national standard for the use of covert searches.
In conclusion, although delayed-notice warrants, or “sneak and peak” searches, are a decades-old law enforcement tool, they have received increased attention since the USA PATRIOT Act established a uniform nationwide standard for their use. Unfortunately, the public debate about how delayed-notice warrants work and why investigators need them has featured a great deal of misinformation. Long before enactment of the USA PATRIOT Act, the Supreme Court expressly held in United States v. Dalia that “covert entry” pursuant to a judicial warrant does not violate the Fourth Amendment, rejecting the argument that it was unconstitutional as "frivolous” (441 U.S. 238 1979). In 2000, in United States v . Simon, a decision that stemmed from a warrant to seize evidence in a criminal investigation, without any national security implications, the Fourth Circuit ruled that delayed notification was constitutionally permissible (206 F. 3d 392 4th Cir., 2000). In that decision, though, the court ruled that a 45-day initial delay was constitutional. It was clear long before the USA PATRIOT Act that judges have the authority to authorize some delay in giving the notice of a search warrant's execution that is required by Rule 41 of the Federal Rules of Criminal Procedure (Fed. R. Crim. P. 41. 2011).
However, the law governing issuance of delayed-noticed warrants was a mix of inconsistent rules, practices, and court decisions varying from jurisdiction to jurisdiction. Section 213 does not, as some critics have claimed, expand the government's ability to use delayed-notice warrants or authorize law enforcement to search private property without any notice to the owner. Rather, Section 213 merely codified the authority that law enforcement had already possessed for decades and clarified the standard for its application. By doing so, the USA PATRIOT Act simply established a uniform national standard for the use of this vital crime-fighting tool. Both before and after the enactment of Section 213 of the USA PATRIOT Act, immediate notice that a search warrant has been executed has been standard procedure. As has always been the case, delayed-notice warrants are used infrequently and judiciously — only in appropriate situations where immediate notice likely would harm individuals or compromise investigations, and even then only with a judge's express approval. The Patriot Act provides law enforcement and government agencies the tools they need in order to investigate and catch terrorists and bring them to justice. Section 213 of the Patriot Act is constitutional, and has never been found to be otherwise by any court.
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