The Patriot Act: Probable Cause and Due Process

Both liberal and conservative groups alike have criticized the U.S. Patriot Act, passed in the wake of the terrorist attacks of September 11, 2001, because they say it violates probable cause and due process rights protected by the Constitution of the United States.

The Patriot Act significantly expanded the power of U.S. law enforcement by giving them unprecedented authority to track and follow terrorists.

The act also gave terrorism investigators access to evidence-gathering tools that agents in criminal inquiries have been able to use for years, but some see these powers as being unconsitutional.

All agree that the government must be able to protect its citizens from terrorism, but the issue is how to do that without eroding the civil liberties of all citizens.

Latest Developments

Attorney General John Ashcroft has released a report to the media that he said proves that the law's most controversial provisions should be renewed before they expire in December 2005. "The report provides a mountain of evidence that the Patriot Act continues to save lives," the attorney general said.

The legislation, does nothing to limit the freedoms of innocent people, Ashcroft has said in recent speeches. "America is more secure today than it was two years ago," he said in Louisville KY. "America is safer today than it was two years ago.

America is freer today than at any time in the history of human freedom."

Since his State of the Union address in January, President Bush has portrayed the Patriot Act as a linchpin in his anti-terrorism efforts, and he has insisted that Congress renew 16 provisions that will expire next year.


The Patriot Act basically extends the government's foreign intelligence surveillance powers over potential "domestic" terrorists, including American citizens. Several of its more controversial provisions include:

  • Federal agents may conduct surveillance and searches against U.S. citizens without "probable cause" to suspect criminal activity. The targeted person is not notified and cannot challenge the action.
  • Agents can conduct "sneak-and-peek" searches without prior notice in common domestic crime investigations. Before the Patriot Act, courts required law enforcement to "knock and announce" themselves before conducting searches.
  • Government agents now have access to any person's business or personal records. These include library records, book-buying habits, medical, marital counseling or psychiatric files, business records, Internet habits, and credit reports.
  • The government no longer has to give notice, obtain a warrant or a subpoena, or show probable cause that a crime has been committed. Persons turning over personal data to the government (such as librarians, co-workers or neighbors) are prohibited, under threat of federal criminal prosecution, from telling anyone they did so.


Those who support the U.S. Patriot Act say the law is necessary in the War Against Terorism and that the world forever changed on September 11, 2001 -- starting a new war, with new rules of engagement. They say that it is the very freedoms that Amercian cherish so dearly, that allows those who would kill us to move and operate so easily among us.

Attorney General Ashcroft says, the Patriot Act "reflects the stakes America has in the war on terror.

When American lives are at stake, we need to have all the capacities to disrupt and to defeat terrorism that we've been successfully using over the last 28 months."

In a letter to Senate leaders, Ashcroft said changes proposed by Congress in the Security and Freedom Ensured Act, known as SAFE, would "undermine our ongoing campaign to detect and prevent catastrophic attacks." He said President Bush would veto any attempt to water down the present Patriot Act provisions.


Opponents of the Patriot Act say the law forces U.S. citizens to give up way too many personal freedoms and constitutional rights in exchange for any level of "safety" the law may provide.

They argue that policing powers granted under the Act and the proposed Domestic Security Enhancement Act (Patriot II) would fundamentally change American society, because the government would be allowed to carry out electronic searches of virtually all information available about an individual without having to show probable cause and without informing the individual that the investigation was being carried out.

Furthermore, if adopted it would allow the government to wiretap a person for 15 days without a warrant; federal agents could secretly arrest people and provide no information to their family, the media or their attorney until charges are brought, no matter how long that took; and it would allow Americans to be stripped of their citizenship for even unknowingly helping a group that is connected to an organization deemed to be terrrorist.

Even further, they say the Act would also make it a crime for people subpoenaed in connection with an investigation to alert Congress or anyone else to any possible abuses committed by federal agents. There is no checks-and-balances system to prevent abuses, they believe.

Where It Stands

ACLU National Media Relations director Emily Whitfield reports that more than 230 communities around the country, most recently Los Angeles, have passed resolutions calling for the repeal of certain controversial sections of the act. Some local governments have ordered their employees to not cooperate with federal agents making inquiries under a Patriot Act investigation.

Provisions of the law are being challenged in court on their constitutional merits. A federal judge in Los Angeles struck down a provision the Act that prohibits providing "expert advice or assistance" to designated international terrorist organizations, because it is a violation of the First and Fifth Amendments and because it is impermissibly vague.

In Detroit, Michigan, an ACLU lawsuit is challenging the Act because it gives federal agents "unlimited and unconstitutional authority to secretly seize library reading lists and other personal records."

Likely, other challenges to the law will arise as other cases develop and the political battles will continue in Congress as the deadline nears on the first Patriot Act provisions.