1

!1

" " "

An analysis of the Patriot act as an amendment to FISA: examining the legislation that preceded it, illustrating the procedural changes it evoked and challenging the legislations constitutionality An Extended Essay in Politics

" " " "

Andrew Shekhar Breckenridge Candidate Number: 0039760001 January 2014 Politics Mrs. Pohlonski Word Count: 3866!

!2

Abstract
The first decade of the twenty-first century featured the introduction of the Patriot Act, with its wide array of tools for domestic and foreign intelligence gathering to maintain domestic security. Since, the act has been criticized repeatedly for being 'unconstitutional', that it is 'principally opposite to the first and fourth amendments' and the spirit of the constitution. This paper analyzes the procedural changes brought by the Patriot Act and in the process examines the constitutionality and ethicality of the legislation. The scope of the paper is limited to first identifying the need for intrusive intelligence gathering, then exploring the legislation that preceded the Patriot Act - the Foreign Information Security Act (FISA) - how surveillance used to be conducted before the Patriot Act. Finally examining specific cases where the Patriot Act tools were used unconstitutionally and expounding upon the procedural changes invoked in the relevant governmental organizations, the FBI, the CIA and the NSA. Through analysis, it is found that the use of tools of the Patriot Act violate a number of Constitutional rights Americans are thought to enjoy, the paper provides alternative procedures to provide security through cyberspace.!

!3

Acknowledgments
I would like to thank my fellow Diploma Candidates: Alex, Alina and Shelby at Novi High School for what they call moral support. I am grateful to friends and advisors at Scotts Valley High School who are in the IB Programme as well as the advisors at my high school. Our librarian, Mrs. Bratney, Mr. Brenner, Mrs. Pohlonski and my Computer Science Teacher Mrs. Franchi offered me guidance and support, and I thank them. I am indebted to so many other people for reading over my essay, and providing edits and suggestionsmost notably, Kelly Norris, Akshay Chiwhane, Thatipamula Venkata Saicharan and Shelby Pliska.!

!4

Table of Contents
Abstract Acknowledgments Table of Contents Introduction Background Evolution of Law Then, the Patriot Act Successes of the Patriot Act Abuse of Tools Granted by the Patriot Act A. Mayfield v. United States B. Las Vegas 2 3 4 5 6 7 8 10 11 12 13

C. EPICs Freedom of Information Act Lawsuit of 2005 14 D. Analysis of the Constitutionality of Presented Cases 15 Changes in Operating Procedure Conclusion Bibliography 17 18 20

!5

Introduction
Intelligence gathering has always been a vital aspect of having a safe, controllable home front. The United States grasped this sentiment and subsequently implemented policies towards this end. On determining the extent to which these tools breach the privacy of the surveilled, the U.S. has consistently been more flexible in matters of foreign intelligence when compared to domestic matters. In order to stay within the restrictions set by the Constitution and other fundamental laws, at least while conducting investigation inside the United States, a metaphorical wall was created to encapsulate foreign from domestic intelligence, which separated the more invasive and arguably unconstitutional strategies used in the foreign theatre from the established and stringently monitored policies and tools implemented domestically. This paper will analyze how the P.A.T.R.I.O.T. Act of 20011 tore down this wall and allowed the use of aggressive surveillance, previously only used abroad, in the domestic theatre; specifically what it amended of previous policy and laws like FISA2. Furthermore, by tearing down this wall, this paper will examine how the amendments drastically changed the nature and procedures by which governmental organizations approached intelligence gathering in the U.S. By examining specific cases in which these governmental institutions abused the powers offered by FISA, and then weighing those cases against instances where the tools were used correctly where they were actually invaluable to peacekeeping. Ultimately, analyzing the constitutionality and ethicality of the tools presented by FISA and subsequently amended by the PATRIOT Act.

" "
USA PATRIOT Act of 2001: Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001
1 2

FISA: Foreign Intelligence Surveillance Act of 1978

!6

Background
In the summer of 2001, the FBI was desperately trying to locate an al Qaeda operative Khalid al-Mihdhar. FBI Analyst Special Agent, Steve Bongardt, one of the agents on the case, happened upon a communiqu that al-Mihdhar might have entered the US. Bongardts curiosity was piqued, he called a colleague asking for more information. What he got instead was an order to delete the message; it was sent to him by accident.3 Bongardt, outraged, emailed his superior, writing:4 "Whatever has happened to this, someday somebody will die and wall or not, the public will not understand why we were not more effective and throwing every resource we had at certain 'problems'.5 He was right. A few weeks later, Khalid al-Mihdhar helped hijack American Airlines Flight 77 and crashed it into the Pentagon.6 Following 9/11, the intelligence community agreed that national security had to be a distributive functionofficers had to do a better job of sharing information with each other, both internally and between agencies. It was widely accepted that policy had to change; there had to be a freer flow of information to prevent future attacks.7 They wanted to bring down the wall.

" " "

National Commission on Terrorist Attacks upon the United States. (Philip Zelikow, Executive Director; Bonnie D. Jenkins, Counsel; Ernest R. May, Senior Advisor). The 9/11 Commission Report. P. 271. New York: W.W. Norton & Company, 2004.
3

Sales, Nathan Alexander, Mending Walls: Information Sharing after the USA Patriot Act (March 16, 2010). Texas Law Review, Vol. 88, P. 1795-1796, 2010; George Mason Law & Economics Research Paper No. 10-16.
4 5 6 7

Zelikow, Op. cit., p. 271. Sales, Op. cit., p. 1796 Zelikow, Op. cit., p. 271.

!7

Evolution of Law
The Foreign Intelligence Surveillance Act (FISA), passed in 1978, established standards and procedures for the use of electronic surveillance to collect foreign intelligence. FISAs central aims were to: I. protect the U.S. from foreign threats through surveillance and dismantlement.

II. put an end to the Executive Branch's practice of misusing national security surveillance for unethical reasons (the Watergate scandal comes to mind). As FISA was designed to codify procedures and rectify inconsistencies realized in the surveillance of non-U.S. citizens and that too only in other countries, it was not subject to U.S. law. In fact it was principally opposite to the Constitution, against the Bill of Rights. So in order to prevent governmental agencies from misusing the FISA tools to spy on U.S. citizens, something that would be obviously and inordinately unconstitutional, a wall was created between foreign intelligence officials8 and domestic criminal prosecutors9. This essence of the wall is the primary purpose clause, formalized in FISA, wherein the government (an appointed court) had to certify that the primary purpose of the proposed surveillance was to gather foreign intelligence.10 So, if a proposed investigative case was passed through the FISA Court (the court set up to oversee these foreign surveillance requests) it was subject to FISAs comparatively lax surveillance standards,11 bypassing regular constitutional limitations. If it didnt pass through the FISA Court, it would have to satisfy the strict standards that govern garden variety criminal investigations.12 In essence, FISA kept [the]

8 9

Can be considered in practice to be CIA agents, and NSA or FBI analysts Can be considered in practice to be FBI agents, Police officers or any agent who engaged in law-keeping within the US 50 U.S.C. 1804(a)(7)(B) (establishes procedure for judicial orders approving electronic surveillance through FISA)

10 11

In re Sealed Case, 310 F.3d 717, 724-25 (FISA Ct, Rev, 2002) (analyzing the legislative history of FISA and highlighting the possibility that intelligence gathering and law enforcement may overlap in certain areas)
12

Ibid.

!8 cops from evading the legal limits on domestic surveillance by commissioning spies to do the dirty work for them.13 What seems a pragmatic solution to the gathering of massive amounts of intelligence on foreign nationals for investigation, and doing so without breaking American laws and regulations. As, of course, FISA changed these laws and regulations. This idea of separating intelligence and enforcement is no new thing. Going back all the way to 1878, the renowned Posse Comitatus Act separated the military from law enforcement, prohibiting the Army from stepping in to help enforce law except in cases where they were granted explicit permission from Congress. The National Security Act of 1947 which created the CIA is similar, and in hindsight seems like a precursor to the wall mandated by FISA. It said that the CIAs aggressive intelligence strategies would be used outside, and only outside the US, leaving the FBI to enforce domestic security. The internal security ban thus function[ed] as a barrier, preventing the tainted (but perhaps necessary) world of foreign intelligence operations from contaminating the pristine world of domestic peacekeeping.14

"
Then, the Patriot Act
Following the terrorist attacks on September 11th, Congress hurriedly passed antiterrorism legislation in form of the USA PATRIOT Act15; the awkward title coming from its legislative history wherein it combined two anti-terrorism bills: (1) The Senates USA Act16, and (2) the House of

Sales, Nathan Alexander, Mending Walls: Information Sharing after the USA Patriot Act (March 16, 2010). Texas Law Review, Vol. 88, P. 1797, 2010; George Mason Law & Economics Research Paper No. 10-16.
13 14 15

Ibid., p. 1814.

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA Patriot Act) of 2001, U.S. H.R. 3162, Public Law 107-56. (2001) (enacted). Print.
16

Senate Bill 1510

!9 Representatives Patriot Act17. It's exceptionally quick adaptation no doubt was a result of it riding on the outrage of American perception of the 9/11 attacks. The Patriot Act amended a great deal of intelligence policy that was previously under FISAs jurisdiction. It broke down the wall between foreign and domestic. Though the Patriot Act can and has been debated over time and time again, a brief summary is all that is necessary for the purposes of analysis. The Patriot Act is a comprehensive, ten-sectioned article of legislation that collected and integrated hundreds of minor amendments to federal law into ten subparts; to reducing the perceived terrorist threat. It addressed matters ranging from warrantless wiretaps to the seizing of financial business records to (of most interest to this paper) breaking down the long-standing wall between foreign and domestic intelligence gathering.18 The Patriot Act has been repeatedly examined whether it is contrary to the Constitution. The American Civil Liberties Union (ACLU), a nonpartisan nonprofit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States.19 said about the Patriot Act when it was passed:
While it contains provisions that we support, the American Civil Liberties Union believes that the USA PATRIOT Act gives the Attorney General and federal law enforcement unnecessary and permanent new powers to violate civil liberties that go far beyond the stated goal of fighting international terrorism. These new and unchecked powers could be used against American citizens who are not under criminal investigation, immigrants who are here within our borders legally, and also against those whose First Amendment activities are deemed to be threats to national security by the Attorney General.20
17 18 19

House Bill 2975 U.S. H.R. 3162, Public Law 107-56. (2001) (enacted). Print. (USA PATRIOT Act of 2001)

"American Civil Liberties Union." American Civil Liberties Union. N.p., n.d. Web. 11 Nov. 2013. <https:// www.aclu.org/guardians-freedom>. Murphy, Laura W., Director, ACLU Washington Office, and Gregory T. Nojeim, Associate Director & Chief Legislative Counsel. ACLU. Letter to United States Senate. 23 Oct. 2001. MS. N.p.
20

!10 Their complaint illustrates a widely faced criticism of the PATRIOT Act, that the broad expansion of governmental powers that were to allow intelligence agencies to engage in electronic surveillance was problematic, constitutionally so. It cited how US citizens were being spied on by their own government and how non-U.S. citizens residing legally in the country were targeted for even more surveillance and investigation their privacy, for all practical purposes, did not exist.

"
Successes of the Patriot Act
The Patriot Act was a compelling toolbox, invaluable to investigators. The Justice Department accredits it with cracking several cases. For example, in the investigation of the Portland Sevena terror cell in America that attempted to travel to Afghanistan in 2001 in order to join the Talibaninvestigators were able to put the group leader, Jeffery Battle, under secret surveillance using the Patriot Act tools. In the course of the investigation, investigators had only enough evidence to imprison him (not enough for the other members of his group), so by putting him under this FISA surveillance, they were able to: I. Ensure that he would not be able to organize attacks on synagogues, something that he had been suspected of planning, and II. Learn the names of the other members and hopefully gather enough evidence to prosecute them along with the leader. They were ultimately successful, collecting sufficient evidence to charge all seven members of the group;21 the Patriot Act was functional and helpful. Another example of the Patriot Act having aided an investigation was with the Lackawanna Six in 2003, a terrorist cell thought of being involved with drug trafficking to supplement their
Abramson, Larry, Maria Godory, and Katie Gradowski. "The Patriot Act: Justice Department Claims Success." Web log post. NPR. National Public Radio, 20 July 2005. Web. <http://www.npr.org/templates/story/story.php? storyId=4756706>.
21

!11 foreign terrorism activities. Previously, the wall between foreign and domestic would have forced the stratification of the case into two parts: I. a domestic security case dealing with drug crimes in the US

II. and a FISA Court case looking into the foreign terrorism. The tools presented by the Patriot Act allowed for both of these cases to become one, leading to better information sharing between the investigators (agents were more familiar with every aspect of the case) and thus, a successful conviction.22 Over its usage in Operating Procedure (O.P.) since 9/11, U.S. Authorities have foiled at least 39 terror plots.23

"
Abuse of Tools Granted by the Patriot Act
Though the Patriot Act helps governmental organizations immensely, as shown in the previous section, I will argue that the tools are unconstitutional. To illustrate the same, I will present examples and accompanying analysis of instances of misuse of these tools how they can and have been used in unconstitutionally.

" " " " "

Abramson, Larry, Maria Godory, and Katie Gradowski. "The Patriot Act: Justice Department Claims Success." Web log post. NPR. National Public Radio, 20 July 2005. Web. <http://www.npr.org/templates/story/story.php? storyId=4756706>.
22

McNeil, Jena B., and Jessica Zuckerman. "After Bin Laden: Support the PATRIOT Act." The Heritage Foundation. N.p., 17 May 2011. Web. 13 Nov. 2013. <http://www.heritage.org/research/reports/2011/05/after-bin-laden-supportthe-patriot-act>.
23

!12

A. Mayfield v. United States

In Mayfield v. United States24, the FBI held suspect Brandon Mayfield as a material witness for over two weeks, under suspicion that he was involved in the 2004 Madrid train bombings.25 The FBI used a provision of the Patriot Act to conduct warrantless surveillance: a sneak-and-peak search of his house, a search that was conducted without probable cause, unquestionably contrary to the fourth amendment. After being released, he received a formal apology from the Federal government, as well as $2,000,000 as compensation for wrongful detention. Mayfield (a lawyer by profession) tried to sue the United States Government, on the grounds of infringing on his Fourth Amendment rights: to be secure against unreasonable searches and seizures without probable cause.26 But, his settlement of two million dollars voided his right to injunctive relief, that is, to attempt to sue the government in court. Nevertheless, his case to prove that that the amendments to FISA27 28 were unconstitutional29 was strong. He had been: I. Racially profiled for being a Muslim, which is against the equal protection ideals of the Fourteenth Amendment30, II. Subjected to a sneak-and-peak search;31 a search where investigators can clandestinely acquire physical access to a private premises without a warrant from a judge. Basically, the

Mayfield v. United States. United States Court of Appeals For The Ninth Circuit. 2009. Web. 12 Nov. 2013. <http:// cdn.ca9.uscourts.gov/datastore/opinions/2009/12/10/07-35865.pdf>
24

Known in Spain as the 11-M, was a series of coordinated bombings against the Cercanas commuter train system of Madrid, Spain on the morning of 11 March 2004
25

Mayfield v. United States. United States Court of Appeals For The Ninth Circut. United States Court of Appeals For The Ninth Circut. 5 Feb. 2009. Print.
26 27 28 29 30 31

US Const. amend. XIV. Print. Mayfield v. United States., Op. cit. ibid. U.S. H.R. 3162, Public Law 107-56. (2001) (enacted). Print. (USA PATRIOT Act of 2001) Title X, Sec. 1002. Ibid., Title II, Sec. 213.

!13 investigators don't need probable cause to search premises and seize evidence. This was contrary to the legal paradigm innocent until proven guilty, and though not unconstitutional, is base precedent in practiced law, III. Subjected to having his documents seized. Since he was a lawyer by profession, the files that had been seized were confidential under Attorney-Client Privilege. By looking through Mayfields clients files, the investigators broke another omni-established law, and IV. Held for two weeks as a material witness. A categorization that was misused as the officials never intended to have him testify in court.

"
B. Las Vegas
In December of 2003, the FBI received intelligence about a possible Al Qaeda operation in Las Vegas around the new year. It led the FBI into a full-scale inquisition of hotel and rental agency records on some 250,000 vacationers, to uncover some terrorist threat.32 Using its new data-mining strategies to analyze terabytes of seized customer records, the FBI planned to search through records of every citizen in the city; records that were off limits under the minimization ideal of FISA, but made fair game under Section II33, the library records provision34 of the Patriot Act. The library records provision35 allows agency officials to produce tangible materials to combat terrorism. Basically this means that the FBI can ask for information without reason from any business. The section also contains a gag order stipulation saying that once the organization has handed over the data, that "no person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation
Young, Rick. "What Happens In Vegas..." PBS. PBS, 15 May 2007. Web. 12 Nov. 2013. <http://www.pbs.org/wgbh/ pages/frontline/homefront/etc/producer.html>.
32 33 34 35

U.S. H.R. 3162, Public Law 107-56. (2001) (enacted). Print. (USA PATRIOT Act of 2001) Title II. Ibid., Sec. 215. Ibid., Sec. 215.

!14 has sought or obtained tangible things under this section.36 The FBI can, in essence, get private information from a business, and then forbid the business from telling customers that their data had been handed over to the FBI. In this case of a terrorist threat in Las Vegas, the FBI demanded businesses turn over all of their sensitive financial records without giving any reason, and not allowing them to tell their customers that their financial information had been provided to the FBI. This mass access of private data, regardless of whether or not it diverted an actual terrorist threat, disregards the civil liberties of American citizens. Specifically: I. The First Amendment: By putting a gag oder on the queried business. Suppressing their freedom of speech. II. The Fourth Amendment: By the seizing of masses upon masses of private data that the FBI definitely didnt have probable cause for. III. The Fourteenth Amendment: Investigators targeted mainly Muslim and Sikh owned business to be put under greater scrutiny, a second level of investigation, in the search. All these freedoms were disregarded in this one declassified use of the PATRIOT Act. The gag order discussed in Title II, Sec. 215 of the Patriot Act has probably covered up other instances of similar cases. Very recently, some of these cases have been unearthed.

"
C. EPICs Freedom of Information Act Lawsuit of 2005
A Freedom of Information Act (FOIA) lawsuit37 by the Electronic Privacy Information Center (EPIC) from 2005 showed that the FBI had conducted clandestine surveillance on some hundred U.S. citizens without proper paperwork or supervising oversight. Occasionally, they initiated

36 37

Ibid.

EPIC v. Department of Justice. United States Court For The District of Columbia. N.d. EPIC.org. N.p., n.d. Web. 12 Nov. 2013. <http://epic.org/privacy/nsa/complaint_doj.pdf>.

!15 surveillance without even notifying the Department of Justice, a colossal infraction. David Sobel, EPICs general legal counsel, elaborated by saying that were seeing [what] might be [just] the tip of the iceberg at the FBI and across the intelligence community... existing mechanisms do not appear [to be] adequate to prevent abuses.38

"
D. Analysis of the Constitutionality of Presented Cases
The three cases (see A, B, C) of governmental organizations misusing the Patriot Act are evidence to how it is against the Constitution and conventional U.S. Law. The implications of this will be explicated in this section denominating some of what is wrong with the Patriot Act. I. An overgeneralizing Section 206: Roving Wiretaps used under the Patriot Act allow the monitoring and logging of more than just one particular person. This violates the Fourth Amendment saying that the two requirements for criminal warrants are probable cause and particularity: a reason and specific scope. Usually of a person or location. Under the Patriot Act, the target can be extended to a group, entity, or foreign power.39 So the roving wiretaps could be used to secure John Doe warrants, that don't specify a location, phone line, or account. These are extendable to literally anyone the investigators want. Ask for a warrant to surveil foreign Iranian threat in US, and youre able to spy on every Iranian immigrant or visitor, without further oversight. II. What Attorney-Client privilege? As discussed in Mayfield v. United States, when Mayfields documents were seized following his arrest, the U.S. Government disregarded one of the oldest privileges in Anglo-American jurisprudence. It allowed investigators to circumvent the

Eggen, Dan. "FBI Papers Indicate Intelligence Violations." The Washington Post 24 Oct. 2005: n. pag. 24 Oct. 2005. Web. 12 Nov. 2013. <http://www.washingtonpost.com/wp-dyn/content/article/2005/10/23/ AR2005102301352.html>.
38 39

50 U.S.C.

!16 zone of privacy, a principle the Attorney-Client privilege facilitates to allow people to get sound legal advice. III. Non-Minimizing Patriot Act: Minimization was a major part of surveillance under FISA that has been left out of the Patriot Act. It refers to deleting or disregarding innocent civilian communication while conducting investigations. In Las Vegas in 2003, the FBI was nibbling at all the data to find what it was allowed to see thus being allowed physical access to data that the agency (in this case, the FBIs Carnivore program) did not have warranted access to.40 IV. Warrantless Surveillance: Section II of the Patriot Act, titled Enhanced Surveillance Procedures, is perhaps the most controversial part of the legislation. It allows the government to conduct surveillance on both U.S. and non-U.S. citizens. A huge departure from FISA, where the primary purpose had to be to gather foreign intelligence.41 Now that the purpose of surveillance doesn't have to be to gather foreign intelligence, it can be used without reservation to gather evidence on U.S. citizens as well. It has been established that the Patriot Act tools are against the Bill of Rights, and explicitly allowing the use of the tools against U.S. citizens just furthers the descent of the act into more questionably legal mire. V. Spying on Foreign Agents Who Aren't Foreign, The Lone Wolf Provision42: The Lone Wolf provision was a formalization of unspoken FISA contingency, as a way to use the aggressive FISA spy arsenal on non-foreign individuals. This allowed the use of the unconstitutional FISA toolbox to spy on U.S. citizens, lone wolves, who might be involved in terrorism. This section featured objections to the Patriot Act, and arguments that have led to a consensus that the act is unconstitutional. But the reality is much of the language in the Patriot Act is so broad, that

Orin S. Kerr, Internet Surveillance Law After The USA Patriot Act: The Big Brother That Isn't, 92 Northwestern University Law Review. 653 (2003)
40 41 42

USA PATRIOT Act (U.S. H.R. 3162, Public Law 107-56), Title II, Sec. 218.

Sanchez, Julian. "Keeping Lone Wolves from the Door." Reason.com. N.p., 5 Oct. 2009. Web. 13 Nov. 2013. <https://www.reason.com/archives/2009/10/05/should-the-patriot-act-keep-lo>.

!17 there can be entire divisions of intelligence that have been kept secret, to supposedly protect us from terrorist threats.

"
Changes in Operating Procedure
This section is nothing but an examination of the implications of the Act. What should be clarified before delving into this analysis is that some of the most relevant cases cases that have information critical to this analysis are confidential. So are the current operating procedures of CIA, NSA, FBI and other governmental agencies. So many of the inferences drawn from the cases might be flawed. The data is limiting, and everything discussed is viewed through either an examination of law or through the few cases that have been made public. There is a very narrow slit through which the subject matter is to be examined. There might be mistakes, but attempts have been made at great length to be as objective and based-in-fact as possible. The politically-correct, original, and ideal operating procedures of how governmental organizations should surveil are pretty well established. They should adhere completely to the spirit of the law and constitution. They should be completely open, transparent and easily understood. But over the course of time, this ideal has mutated to stay on par with the agencies in the rest of the worldan arms race of sorts in intelligence. One country changes it's intelligence policy, others change to be more secure than the first, and so on. Problems arise when the government gradually and continuously increases its power in tandem with the citizens slowly becoming less inquisitive of the government they now blindly and completely trust. The Patriot Act has radically changed the procedures for domestic criminal investigation (domestic as in directly affecting U.S. Citizens) by giving domestic criminal investigators tools that were previously only available in foreign surveillance. This led to a change in investigative strategy, with no longer a need for probable cause nor a warrant, the burden of proof becoming lower and

!18 easier to tip in favor of the state, moving from a culture of probable cause to one where all an investigator needs is a suspicion.

"
Conclusion
The Patriot Act was (hopefully) created with good intentions, to allow the monitoring and act as preemptive defense against possible terrorist attacks, but the tools provided drastically overstep bounds set by the Constitution. Civil liberties are an integral part of what makes America, America. The freedoms and rights, established centuries ago are the American way of life; the Patriot Act makes these liberties meaningless. It bypasses the system of checks and balances, making them much easier to used abusively. Benjamin Franklin once said, "he who would trade liberty for some temporary security, deserves neither liberty nor security.43 If you are willing to give up liberty in the name of security, you are foolish and deserve neither. A healthy but difficult to achieve alternative is to maintain security without nulling the liberties of the citizens that you are trying to protect. A near impossible goal, but what policymakers should strive for. The paper has shown examples of how the Patriot Act is used and misused. The relevant question is whether we think it is worth it. Is it worth giving up what makes us American to supposedly protect ourselves against terrorism? It is my belief that we must find another way to safeguard ourselves from attacks. It has been shown that the Patriot Act, by allowing nonminimizing surveillance, make us less secure. That the tools designed to protect us actually lessen our security. My recommendation (though it carries no weight) is that we must find a way to be secure against these attacks while not reducing the security we would have otherwise. Of course, the scope of this investigation was limited. The current operating procedures of the CIA, FBI, and NSA is deemed classified, so only previous released accounts of investigation
43

The Papers of Benjamin Franklin, vol. 6, p. 242, Leonard W. Labaree, ed. (1963)

!19 were used for this study. Even with supplementation from additional cases where evidence was declassified, it is hard to have a complete picture of how the Act is actually being used. This subject of the ethicality and constitutionality of what FISA is now is entitled to a fortiori; when more of the information is made publicly available.!

!20

Bibliography
50 U.S.C. Abramson, Larry, Maria Godory, and Katie Gradowski. "The Patriot Act: Justice Department Claims Success." Web log post. NPR. National Public Radio, 20 July 2005. Web. <http:// www.npr.org/templates/story/story.php?storyId=4756706>. "American Civil Liberties Union." American Civil Liberties Union. N.p., n.d. Web. 11 Nov. 2013. <https://www.aclu.org/guardians-freedom>. Eggen, Dan. "FBI Papers Indicate Intelligence Violations." The Washington Post 24 Oct. 2005: N. Pag. 24 Oct. 2005. Web. 12 Nov. 2013. <http://www.washingtonpost.com/wp-dyn/ content/article/2005/10/23/AR2005102301352.html>. EPIC v. Department of Justice. United States Court For The District of Columbia. N.d. EPIC.org. N.p., n.d. Web. 12 Nov. 2013. <http://epic.org/privacy/nsa/ complaint_doj.pdf>. McNeil, Jena B., and Jessica Zuckerman. "After Bin Laden: Support the PATRIOT Act." The Heritage Foundation. N.p., 17 May 2011. Web. 13 Nov. 2013. <http://www.heritage.org/ research/reports/2011/05/after-bin-laden-support-the-patriot-act>. Murphy, Laura W., Director, ACLU Washington Office, and Gregory T. Nojeim, Associate Director & Chief Legislative Counsel. ACLU. Letter to United States Senate. 23 Oct. 2001. MS. N.p. National Commission on Terrorist Attacks upon the United States. (Philip Zelikow, Executive Director; Bonnie D. Jenkins, Counsel; Ernest R. May, Senior Advisor). The 9/11 Commission Report. New York: W.W. Norton & Company, 2004.

!21 Mayfield v. United States. United States Court of Appeals For The Ninth Circut. United States Court of Appeals For The Ninth Circut. 5 Feb. 2009. Print. Re Sealed Case, 310 F.3d 722 (FISA Ct, Rev, 2002) Sales, Nathan Alexander, Mending Walls: Information Sharing after the USA Patriot Act (March 16, 2010). Texas Law Review, Vol. 88, P. 1795, 2010; George Mason Law & Economics Research Paper No. 10-16. Sanchez, Julian. "Keeping Lone Wolves from the Door." Reason.com. N.p., 5 Oct. 2009. Web. 13 Nov. 2013. <https://www.reason.com/archives/2009/10/05/should-the-patriot-act-keeplo>. Schwartz, Paul M. "Warantless Wiretapping, FISA Reform, and the Lessons of Public Liberty: A Comment on Holmes's Jorde Lecture." California Law Review 97.407 (2009): 407-32. Web. The Papers of Benjamin Franklin, vol. 6, p. 242, Leonard W. Labaree, ed. (1963) U.S. Const. amend. XIV. Print. U.S. H.R. 3162, Public Law 107-56. (2001) (enacted). Print. Young, Rick. "What Happens In Vegas..." PBS. PBS, 15 May 2007. Web. 12 Nov. 2013. <http:// www.pbs.org/wgbh/pages/frontline/homefront/etc/producer.html>.