...the one-legged man and a room full of rocking chairs?

Well, that's me. Too damned busy and too mixed up to see straight. It's 1 a.m. where I'm at and I have to get up at 7 a.m., load up the Jeep, make a few phone calls, get up to Zionsville by 10 a.m., sign my new lease, unpack the Jeep, assemble two ceiling fans, stop by Financial Aid and tell them I'm not coming back, get to class by 1 p.m., sit there for five hours, come home, load up the Jeep again, and get to bed.

Not bad, but considering I'm going to be just as or even busier for the rest of the week is enough to give me a migraine. I just finished my research project paper and it's perhaps one of the most poorly written papers that I could ever hope to write. It's for a class called Research Methods and the first lesson in the book (no kidding here) states that research is not going to a library, looking something up, and putting it into a report.

Well....what the hell is it, you ask?

Unfortunately, I've got that question answered but none of it is in focus with me, tonight. Yeah, the information will be useful come spring when I head up to Purdue for my Masters but as of right now, it's not coming to me.

I may have posted somewhere else....as a matter of fact, I'm sure of it, that I'm not returning to ITT Tech next semester. I was severely let down by the quality of the school and to learn that it doesn't quite have the reputation that they think they have. Additionally, I also spent $1,500 on a class that I took online when I feel that paying that kind of money, I want a person in a classroom with me teaching me the stuff.

So, this week's treat is you being able to read my final research project paper. When I talked with the instructor, I told her that I might not be able to keep passion out of my writing since this is a topic that I'm pretty hot about but she said that she wanted to see passion in it. Well, she got what she wanted.

Enjoy it if you want or don't read it...

Until next week, stay safe out there,

Rob

EDIT: Went to attach the Word doc when I realized that it has personal info in the Properties section. So, I cut and pasted to Notebook and that's what you see below.

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21 August, 2005

USA PATRIOT Act: A Blatant Violation of the Fourth Amendment

Imagine if you will an ordinary, law abiding citizen, with growing concern over the lack of confidence he has in his leaders take part in a large demonstration march in the streets of the capital city in his native country. The citizen arrives and participates in the peaceful demonstration march, only to be by the end of the day arrested, handcuffed, spirited away to an unknown destination, denied access to any sort of legal representation or access to immediate family members, being denied as detained by his government, for an unspecified time period lasting anywhere from a couple of hour to a couple of years…or even never. This is the sort of nightmare scenario we read about in the newspapers and magazines; however, these scenarios always occur in non-democratic countries. Unfortunately, this is no longer true. The scenario I just described could very well happen in the United States of America and it would be, as the saying goes, “legal as next Tuesday” under the ambiguous language contained in §802.A.5 of the USA PATRIOT Act.

With the passage of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act, or USAPA), the people of the United States suffered a far worse fate than those who oppose our way of life could have possibly hoped for. The goal of the masterminds behind the attacks on the United States that took place on the 11th of September, 2001, was to strike fear into “the heart of the infidels”, or non-believers of Islam. What took place in the hallowed halls of our government just over a month later was a strategic victory for our enemies, both here and abroad. The people of the United States lost a valuable part of their freedom and caused much confusion and fear in our confidence of our elected leaders.

This research paper is designed to take you through, step by step, on exactly how the USA PATRIOT Act blatantly violates, both literally and in the spirit of, the Fourth Amendment of the United States. A poorly written bill, introduced within a week after the September 11th terrorist attacks, was signed into law by President G. W. Bush on the 26th of October, 2005. The bill, which was a “repackaged”, compromised version of the Anti-Terrorism Act of 2001, transferred enormous power to the Executive Branch, much of it immune from the system of checks and balances that has sustained our way of government for over 200 years.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, 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. (Fourth Amendment, Bill of Rights, United States Constitution).

To begin, we shall examine the first part of the Fourth Amendment, the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated”. It could be successfully argued that this phrase is the first mention of any guarantee issued by the government that its citizens have the right to the expectation of privacy from the government. In plain language, this phrase gives every single person in the United States who has not committed a crime or having been found through a system of checks and balances stemming from an application from the executive branch to the judicial branch to be safe from non-warrant governmental intrusion.

One of the most famous litmus test of this part of the Fourth Amendment arises from a very popular case known as Katz v. United States , 389 U.S. 347 (1967). In this case, the Petitioner was convicted of 18 United States Code 1804 (Transmission of Wagering Information) in a lower court when the Federal Bureau of Investigations (FBI) had attached electronic monitoring equipment to a phone booth known by the FBI to have been frequented by Mr. Katz. Mr. Katz had been suspected of transmitting wagering information across state lines. The lower court handed down a decision that since the government did not intrude into his personal space that no expectation of privacy existed, and the appellate court upheld that decision. However, the United States Supreme Court overturned that ruling stating that a person must be guarantee this right, irregardless of the setting, whether it be their house, office, hotel room, or even a telephone booth.

The second part of the Fourth Amendment reads, “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”. Like every Amendment to the United States Constitution, these are also very powerful words guaranteeing every person in the United States that the government will not without a system of checks and balances unlawfully search anyplace in which you have an expectation to privacy nor will they confiscate any of your property unless probable cause has been found that you have committed a crime and/or that you are in possession and/or concealing evidence that a crime had been committed. In short, the executive branch of the government, with approval from the judicial branch, cannot search and/or seize any of your property without reason unless they have a level of suspicion to believe that you have committed and/or have participated in a criminal activity.

Many challenges have been made to this phrase of the law, most notably Terry v. Ohio, 392 U.S. 1. John Terry, along with an accomplice, was noticed by a Cleveland police detective acting in a suspicious manner. When the detective approached, he immediately performed a pat-down of the two suspects and discovered that both were carrying an unlicensed loaded weapon upon their person. Mr. Terry sued the State of Ohio, arguing that the Cleveland police detective violated his Fourth Amendment rights against unreasonable search and seizure. The United States Supreme Court ruled differently, however. They ruled in an 8-to-1 decision that the search had been limited in scope and was performed only to protect the officerÂ’s safety.

When these two phrases are combined, it strikes out and defeats much of the tyranny that the colonists were subjected to prior to the American Revolution against the British Crown. It granted freedom from the government in the area where many had felt it most necessary, upon their persons and in their homes. Never would any of them have guessed that their sacrifice would be undone through a single act of terror.

The first indication of gross negligence in the USA PATRIOT Act is Section 204, Clarification of Intelligence Exceptions From Limitations on Interception and Disclosure of Wire, Oral, and Electronic Communications. At first glace, many believe the purpose of this section is to simply bring the existing wiretap laws up to date with the technological age. Prior to the enactment of the USA PATRIOT Act, the federal government was only allowed to intercept details such as e-mail address, originating and destination locations, and the size of the electronic communication but not the content of the electronic communication.

With the vast reaches of the internet, many people are unsure of exactly where our communiqué will travel once it leaves our monitor screen. Simply sending an e-mail to an associate across town could possibly be re-routed through several different servers, one perhaps located outside the United States. Under the language written in Section 204, the federal government is no longer constrained by statue to simply gather the details and are free to also gather the content of the communiqué, too, simply as no one specific U.S. citizen is not targeted. Roving intelligence gathering of foreign based servers have now become a huge intelligence asset to the U.S. government and one that is being utilized with maximum resources. No longer can a person in the United States have the expectation of privacy of sending an electronic communication to another person in the United States because they do not know whether or not the communication will be relayed through a foreign based server.

Another violation of the average person within the United States could easily be violated under Section 206, Roving Surveillance Authority Under the Foreign Intelligence Surveillance Act of 1978. With this section, the federal government is authorized unlimited “John Doe” search warrants when a person suspected of being a foreign intelligence agent is under investigation. Imagine having this person move in next door and one day shaking hands and introducing yourself over the fence or out in the front yard getting the mail. In the strict context of this section, you have now made yourself a candidate for a non-warrant search of your person, your house, and other areas where you have an expectation to privacy and/or have all your communications at home, on your cellular, your office, or any other piece of equipment you use to communicate with on a regular basis, simply by having met another person under investigation for being a foreign intelligence agent, irregardless of whether or not the person under investigation has any access to those means of communication. Perhaps the most terrifying aspect of this section is that the warrant not need be in your name; rather, it is issued to the person under investigations to include “John Does”.

Additionally, these warrants are granted not by a judge within the normal judicial system that you and I have access to; rather, they are issued by the Foreign Intelligence Surveillance Court (FISC). The FISC is a court appointed of post-USA PATRIOT Act of 11 judges, three of which are within 20 geographical miles of Washington, D.C. and closed to the public, both in proceedings and in their record keeping. The court is so secret in nature that only government attorneys are permitted to be present before it, shutting out any access that you may have for providing your own legal representation.

Moving on to Section 213, Authority for Delaying Notice of the Execution of a Warrant, a non-expiring provision of the USA PATRIOT Act, we find the most damaging Fourth Amendment provision. With the specific wording of this provision, the government, upon obtaining a search warrant through either the Foreign Intelligence Surveillance Court or through the normal federal court process, can search your house, car, work place area, or any other place where you have an expectation of privacy, and may withhold informing you of the search for an indefinite amount of time. In doing so, you are denied any opportunity to visually inspect the warrant to ensure that the address is correct and you are denied the opportunity through lack of knowledge to have legal counsel present to ensure that the federal government does not go beyond the scope of what can and cannot be searched under the authority of the search warrant. This denies you your Fourth Amendment right to be secure in your person, etc. because you are denied the knowledge that you were singled out by the government for an intrusive search, irregardless of whether or not the federal government limited themselves to the scope of the search or even if they searched the right address.

When combined with Section 215, Access to Records and Other Items Under the Foreign Intelligence Surveillance Act, the legislative branch of the government has now granted the executive department of the United States government an enormously frightening amount of totalitarian power far outside the realm of the original intent of the drafters of the United States Constitution. Under Section 215, law enforcement officials simply have to “certify” to a judge in the Foreign Intelligence Surveillance Court that, although you are not a suspect, granting federal authority to access your personal records (whether it is your library, medical, ISP, or even grade school report cards) is for an authorized investigation to protect against international terrorism or clandestine intelligence activities. Did you notice the key word in the previous sentence? Yes, the law enforcement official must only “certify” that this is necessary and to “certify”, they are not required to give even one articuable fact; rather, just a statement that it is necessary. No more, no less. The Fourth Amendment specifically states that probable cause must be established prior to the warrant being issued and this provision is a deliberate, transparent, and unashamed attempt to undo over 200 years of freedoms enjoyed by the people of the United States.

Moreover, the FISC judge is not permitted to deny the law enforcement official the special court order. The judges themselves have their judicial power subjugated to the whim of the executive branch. The public themselves are also denied their power as citizens insomuch as the FISC is not open to public hearings nor are non-government lawyers permitted to appear before that court. In essence, should you discover that your personal records have been investigated by the federal government under the auspice of whatever information they gleaned is essential to the ongoing investigation of a foreign intelligence agent operating within the United States and/or the investigation of the broadly defined term in the USA PATRIOT Act of terrorism, irregardless of whether or not you are the subject of that investigation.

The provision to “certify” an ex parte application for surveillance is not strictly limited to Section 215. Unfortunately, Section 216, Modification of Authorities Relating to Use of Pen Registers and Trap and Trace Devices, also contains the same language as it applies to electronic communications. You may have your e-mail intercepted, documented, and, if you are fortunate enough, have the contents of the e-mail examined should it happen to have passed through a foreign based internet service provider under authority granted in Section 204. Furthermore, these ex parte applications for a warrant through the FISC drops all pretense that it involves foreign intelligence gathering or relating to terrorism. Instead, the wording applies this section to only ongoing criminal investigations which may or may not have any evidence in the first place that you have committed any wrongdoing at all. Imagine that the local police pick up a drug dealer known to have frequented your neighborhood. The drug dealer, in an effort to save their own skin, may offer up your name as a buyer in exchange for being allowed to plead guilty to a lesser degree. Now, through the false statement of a criminal, you have now become the target of an investigation in which all of your electronic communications are now being intercepted and monitored. Your expectation of privacy guaranteed under the Fourth Amendment is now being violated based upon a false statement without one articulable fact.

The USA PATRIOT Act goes further in violating many other rights guaranteed under the Bill of Rights to persons of the United States, from limiting free speech and the right to assemble under the First Amendment by broadening the definition of exactly what encompasses terrorism and terrorist activities to violating the Fifth Amendment by forcing persons to be a witness against themselves to the Sixth Amendment by denying persons of the United States the right to a speedy and public trial.

The USA PATRIOT Act was, in essence, a good idea. However, the cultural atmosphere in the wake of the September 11th, 2001 terrorist attacks vacated many of our citizens, both in and out of the government, of the capacity to make a sound judgment when the USA PATRIOT Act was presented for passage. Unfortunately, conservative opportunist seized upon America’s emotion of fear to enact an agenda that debases and devalues the very foundation in which our democratic society is based upon, yelling loudly for all to hear that if this Act wasn’t enacted “as is” and within a week that we would suffer more terrorist attacks and no one would be to blame but the politicians themselves. Much of this Act could be reformed and become a valuable tool for law enforcement agencies to use wisely within the system of checks and balances that our forefathers sought to entrench into the culture of our government. For example, removing such vague definitions of terrorism as found under Section 805 would be a step in the right direction:

SEC. 802. DEFINITION OF DOMESTIC TERRORISM.
(a) DOMESTIC TERRORISM DEFINED- Section 2331 of title 18, United States Code,
is amended--
(1) in paragraph (1)(B)(iii), by striking `by assassination or kidnapping' and inserting `by
mass destruction, assassination, or kidnapping';
(2) in paragraph (3), by striking `and';
(3) in paragraph (4), by striking the period at the end and inserting `; and'; and
(4) by adding at the end the following:
`(5) the term `domestic terrorism' means activities that--
`(A) involve acts dangerous to human life that are a violation of the criminal laws of the
United States or of any State;
`(B) appear to be intended--
`(i) to intimidate or coerce a civilian population;
`(ii) to influence the policy of a government by intimidation or coercion; or
`(iii) to affect the conduct of a government by mass destruction, assassination, or
kidnapping; and
`(C) occur primarily within the territorial jurisdiction of the United States.'.
(b) CONFORMING AMENDMENT- Section 3077(1) of title 18, United States Code, is
amended to read as follows:
`(1) `act of terrorism' means an act of domestic or international terrorism as defined in
section 2331;'.

Other steps, such as removing the language requiring that law enforcement officials must “certify” with language that law enforcement officials must show probable cause before a warrant is issued and allowing persons who have been subjected to search warrants the opportunity to appear before the FISC with legal representation of their own choosing and defend themselves would restore much of the value lost to the Fourth Amendment.

Our forefathers fought valiantly for the opportunity to self-govern themselves and to live in a free and democratic society. If we were to succumb much as we have in enacting the USA PATRIOT Act in the days immediately following the September 11th, 2001 terrorist attacks, then we have lost much more ground than we could have possibly ever gained with any good intentions that the Act might have had. In the words of my favorite science fiction author, Robert A. Heinlein, “you can have either peace or you can have freedom…don’t count on having both at once.” (p. 244)


Works Cited

United States. The United States Congress. The Bill of Rights. 1st Congress, 1789.

United States. The U.S. Supreme Court. Katz v. United States. Washington, D.C., 1967.

United States. The U.S. Supreme Court. Terry v. Ohio. Washington, D.C., 1968.

United States. The United States Congress. Uniting and Strengthening America by

Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001

(USA PATRIOT Act, or USAPA). Washington, D.C., 2001.

Heinlein, Robert A. Time Enough For Love. New York. Ace Books, 1988.

Great work Rob. Even though you claim it is a rush job, it does flow well and gets the point across.

BTW, you may want to check this out...

Quote: Originally Posted by Wordbiker Great work Rob. Even though you claim it is a rush job, it does flow well and gets the point across. BTW, you may want to check this out...

Hey, you folks are just lucky that I didn't use the word, "ain't"...

You know, I did debate of usage of that word as yes, it does constitute a "double-negative" of sorts, but I'm dealing with the midwest here....you have to cut me some slack. For example, my mother loves say the word "wash" with an -r sound in it..."warsh".

Very nicely written, Rob! I share your opinion of the Patriot Act: a good idea that needs a bit of work, and i think that you've covered the aspects that made most people cringe (er..if they did cringe).

One thing that i've seen precious little of is suggestion on how to fix the Act without completely gutting it or nullifying it. Hats off to you for providing some easilly enacted suggestions/fixes.

The paper reads well, however, Wordbiker has a very valid point about the use of "irregardless".
An academic paper is generally given a lot less leeway with language (slang, etc.). It really depends on the professor (i've had some who allowed a marvelous amount of creative space with language, and i've had some who slapped me down for not using simple sentences....go figure). Since it's not a paper for an English class, you're probably ok. However, if you change "irregardless" to "regardless", you're golden (better safe than sorry ).

There is a bigger crime here ladies and gentlemen:

Quote: Originally Posted by ROB ...stating that a person must be guaranteed this right, irregardless...

OMG WTF GG NO RE!1one!

F

Just kidding!

Very spirited paper with great intro and outro PG's. Informative as well since I have still not read the Patriot Act . Worthy if the "A" it will surely receive.

PS - I wish for just one day I could switch places with a teacher a scrawl that on one of those annoying tards papers.