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A Permanent State of Emergency

Jean-Claude Paye is a Belgian sociologist studying the transformations of the juridical forms of the state. He has published many articles on this topic, as well as two books, Vers un Etat policier en Belgique? (EPO, 2000) and La fin de l’Etat de droit (La Dispute, 2004), which was translated into the main European languages. James H. Membrez translated this essay from the French.


The function of criminal law has been altered within the context of the anti-terrorist struggle. Normally, criminal law treats prosecuted persons as individuals. The criminalization of terrorist organizations and the criminalization of participation in or support for such organizations create offenses of collective responsibility. The object is to attack actual or potential organizations. It is no longer just the act of committing a crime or even the intention of doing so that is prosecuted. Merely belonging to a group that is considered terrorist by the government is sufficient for punishment.

Criminal law acquires a constitutive role. It reorganizes the relation between society and state. This change is effected first in the name of a state of emergency, of the obligatory war against terrorism. The September 11 attacks and the Patriot Act, which was originally proposed just several days after these events, legitimize a change in the law that precedes these attacks. This “war” is of indefinite duration. The exceptional procedures passed in the context of the emergency become permanent and the measures taken against particular groups in the population tend to be expanded to cover everyone. If these measures are incorporated into the law, citizens must be prepared to give up their individual and collective freedoms on a long-term basis.

A New Legal Order

The Patriot Act represents the perfect example of this process of incorporating the exception into the law, into the legal order. It is not the only American law that mounts a frontal attack on the rule of law, but in this case the administration openly claims responsibility for its action. First of all, this law has an ideological function. It legitimizes a change in the political system, granting to the executive power the prerogatives of the judiciary.

To achieve this objective, the Patriot Act undertakes a twofold erasure of the boundaries between police functions and intelligence work by means of measures that authorize surveillance of the population. On the one hand, it incorporates into criminal investigations criteria that authorize surveillance and the seizure of information that were originally established for counter-espionage activities by the Foreign Intelligence Surveillance Act (FISA) of 1978. The latter gave exceptional prerogatives to administrative authorities by removing any true judicial control over their actions, other than preliminary authorization by exceptional, frequently secret, courts, without any further monitoring. On the other hand, it allows intelligence services to use particular measures previously reserved for criminal investigations, such as the use of the so-called Magic Lantern device. The use of these particularly intrusive techniques used to be counterbalanced by assorted guarantees of judicial control and the protection of the rights of the defense.

Finally, evidence obtained by investigations carried out under a FISA warrant, easy to obtain and governed by reduced standards for protecting freedoms, can be handed over to criminal courts, which are normally guided by a much higher level of protection for privacy. The Patriot Act also creates permanent authorizations for widespread exchange of information between intelligence agencies and police forces by allowing them to overstep administrative barriers established to prevent such exchanges. Article 905 requires the attorney general to provide to the director of National Intelligence “foreign intelligence” information obtained by criminal investigations. Article 504 authorizes the transfer of FISA intelligence to federal law enforcement agents.1 The Department of Justice has admitted to having sent around 4500 FISA files to the criminal division. The number of proceedings undertaken is unknown.2

The Patriot Act Reauthorization

The renewal of the Patriot Act makes it possible to incorporate measures into the law on a long-term basis that, since their initial adoption in 2001, had been justified by an emergency situation. The exceptional measures taken by the U.S. government after the September 11 attacks are based on a congressional authorization stipulating “[t]hat the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”3

The Patriot Act authorizes the imprisonment, for an indefinite period of time, of foreigners suspected of terrorism, without trial or indictment. At the same time it establishes widespread surveillance of the whole population. Some of these surveillance measures are permanent, while others were adopted for a period of four years. The latter, contained in sixteen articles, expired at the end of 2005.4 The extension of these measures was debated and voted on by Congress.

While the Patriot Act was approved very rapidly, this was not the case for its renewal. President Bush could not sign the Patriot Act Improvement and Reauthorization Act until March 9, 2006.5 The Senate was the focal point of organized resistance. While the extremely long process made possible, for the first time, a congressional debate on the content and issues at stake in the law, the government’s bill ended up being adopted. The administration succeeded in avoiding the introduction of any restrictive judicial controls over permanent measures. It also succeeded in getting fourteen temporary measures, adopted in 2001 as emergency procedures, made permanent.

The opponents of the Patriot Act wanted to use the renewal process to introduce control measures that guarantee individual liberties. The administration wanted to increase the prerogatives of the FBI. It did not succeed in that objective. However, it did succeed in its essential objective. The few changes made by the Senate are far from re-establishing the balance in favor of judicial authority and the measures most threatening to individual and collective liberties, such as “sneak and peek” and “National Security Letters,” were extended, without any controls over their area of application.

Article 213, which permanently authorizes very intrusive investigative techniques called “sneak and peek,” was extended. The FBI is permitted to enter a home or an office in the absence of the occupant. During this secret investigation, FBI agents are authorized to take photos, examine computer hard drives, and install the Magic Lantern on them. Once installed, this system records all computer activity, not just that transmitted over the Internet.

Article 505 is another permanent procedure that was extended. This clause expands the possibilities for the FBI and other administrative agencies to obtain a National Security Letter. The letter is a type of administrative subpoena granting access to personal medical and financial data, as well as data from travel agencies, casinos, automobile rental agencies, and library records. The FBI is able to obtain such authorization outside the context of any counter-espionage investigation. The applicability of this procedure is thus greatly expanded for any supposed criminal activity. During the congressional debates, it became known that the administration has used 30,000 National Security Letters per year since the September 11 attacks.6 By imposing silence on those presented with such letters and by making it difficult for the subject of such a letter to seek legal counsel, these administrative subpoenas effectively prevent individuals from exercising their rights of defense.

Subordination of Judicial Authority to the Police

All of the measures contained in the first version of the Patriot Act end up strengthening the power of the police to the detriment of citizens and judicial authority. Article 220, already permanent in the first version, authorizes an ordinary local court to issue a search warrant for the collection of electronic evidence. This warrant is valid at the federal level, anywhere on U.S. territory. This article considerably strengthens the prerogatives of the police in relation to judicial authority. It allows police officers to obtain a warrant from a judge who has nothing to do with the case in progress. For example, it is possible to undertake a search in New Jersey with a warrant obtained in Florida. In fact, the police are allowed to choose the judge and thus obtain a warrant that corresponds to their expectations. This measure actually makes it impossible for judicial authorities to have any control over police work. The balance of power between the judiciary and the police has been permanently shifted to the benefit of the latter.

While, on the whole, the attempt of the administration to increase the prerogatives of the FBI through the Patriot Act reauthorization failed, it did succeed in imposing, amidst an almost general indifference, the establishment of a new police force whose function is openly to attack civil liberties, such as the rights of assembly or demonstration. A measure contained in Section 605 of the Patriot Act Reauthorization creates a new federal police, the United States Secret Service Uniformed Division, which has the power to “make arrests without warrant for any offense against the United States committed in their presence or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony.”7

This new police force reports directly to the Secretary of Homeland Security. It has multiple jurisdictions, including “a special event of national significance.” These terms are not defined. Such an event does not necessarily include the presence of a “protected person,” such as the President or Vice-President. It is thus the administrative authorities, more precisely the police, which designate an event as having a “national significance.” Thus it is possible for the police to carry out arrests at its pleasure.

The terms used, such as “offense against the United States” or “reasonable grounds to believe,” are particularly vague. Their meaning depends quite closely on the interpretation that is made by the police themselves.8 The arbitrary actions of administrative officials are justified by the meaning that they themselves give to the events that lead to their intervention.

From State of Emergency to Permanent State of Exception

The important thing to note about the Patriot Act Reauthorization is that it changes most of the temporary measures of the law, initially enacted for a period of four years, into permanent ones. These surveillance measures thus become the basis of a new political order. We move from a state of emergency into a permanent state of exception.

Article 212, which became permanent, authorizes telephone companies and Internet access providers to disclose to the government the content and record of communications if these companies reasonably believe that they present an immediate danger of death or constitute a threat of serious physical injury. There is no a posteriori judicial monitoring, such as a court review, of the results of a company’s forwarding such information. The person concerned is not notified that the information has been disclosed to the government.

Article 214, which also became permanent, allows the FBI to obtain, within the context of FISA, electronic and telephone connection data, both incoming and outgoing. Capturing this data does not require a legal warrant. Prior to the Patriot Act, the government had to prove that the person under surveillance was an agent of a foreign power. Now, the government simply has to indicate that the captured information is “related” to an investigation concerning terrorism. The vague character of this qualification makes it possible to justify any kind of search. This article makes it easy for the FBI to obtain telephone and Internet data under FISA “for any investigation to gather foreign intelligence information”9 without showing that the surveillance is being carried out against a foreign agent or a person involved in international terrorism. Eliminating the reference to a foreign power modifies the very nature of the procedure, allowing it to be applied to U.S. citizens.

Article 218, which is also now permanent, authorizes secret searches of a residence or office, without notification, if there is “reasonable presumption” to believe that the residence or office contains information relative to the activity of an agent of a foreign power. The existence of any proof or indication of a crime is not required. Agents obtain a warrant from a secret court, established by the FISA. Prior to the Patriot Act, federal agents had to certify that the primary objective of the search concerned obtaining intelligence in connection with the suspect foreigner. Article 218 lowers this standard in a significant way, since now the agents no longer have to state that the seizure of information in connection with the suspect foreigner is a “significant objective” of the search.10 Hence this law permits secret searches of anyone’s home, foreigner or U.S. citizen, on the mere suspicion that this individual is more or less linked to terrorism.

Article 216 became permanent, which allows a federal judge or a judge from another jurisdiction to issue a warrant to record incoming and outgoing data from an electronic connection without having to specify the IP number concerned. The warrant can be issued anywhere on U.S. territory.

Article 216 also modifies the criteria for accessing the numbers of incoming and outgoing telephone calls. The agent simply has to certify that the sought after information is “pertinent for the investigation of a crime in execution.” The level of proof required is less stringent than that contained in probable cause, in which “a crime was committed or is on the point of being committed.”

Article 216 does not permit the capture of the content of intercepted messages. While the content of telephone messages is separate from incoming and outgoing connection data, this is not the case for electronic messages. This information is communicated by “packets.” It is the FBI, or another administrative agency undertaking the interception, which, in principle, is responsible for separating the communication data from the content. In other words, the agents are expected to read the former and ignore the latter. This is a veritable blank check given to federal agents. In order to obtain authorization, the agent simply has to certify that the sought after information is “pertinent for the investigation of a crime in execution.” The judge must issue the authorization at the moment the agent’s certification is received, even if he or she is not in agreement with the procedure involved.

State of Exception or Dictatorship?

The lack of boundaries between criminal inquiries and counter-espionage investigations contributes significantly to the subordination of judicial authority to executive power, particularly to the police. It clearly reveals the concentration of all the prerogatives of power into the hands of the administration. The president demanded full powers, within the context of a state of war, after September 11. However, contrary to the initial version passed by the House in June 2005, the legal form ultimately adopted in the Patriot Act Reauthorization remains one of a state of exception rather than dictatorship. The resistance of the Senate made it possible to maintain and introduce several possibilities for judicial control and recourse, without actually weakening the prerogatives of the FBI and the government. Moreover, the two most controversial measures were extended for another four-year period, although a vote of the House in June 2005 had favored a ten-year extension.

Article 215 has been extended until 2010. It allows the FBI, by means of a secret authorization from a court, to have access to medical data, bank accounts, library circulation data, or “any tangible thing” without the investigators having to demonstrate that the inquiry bears on facts in connection with terrorism or a foreign power. No one is allowed to reveal that such information has been disclosed. Article 215 stipulates that “no one should reveal to another person that the FBI sought to obtain or has obtained ?tangible things’ under this section.” The new version of the article makes it possible to challenge this stipulation after a waiting period of one year. Thus a formal process for contesting such a “gag order” is provided for anyone subject to it. Such an individual has the right to submit a request to a FISA judge11 to modify or annul the non-disclosure requirement.12 However, the government has the right to override such a challenge for reasons of national security. Thus the new law makes it almost impossible in practice to modify these “gag orders.”

The Department of Justice has always stated that Article 215 of the Patriot Act has never been used to obtain library records. However, since 2001, federal agents or local police have visited libraries to obtain such records, 178 of them obtained by FBI agents. The real number of these requests can only be much higher, since the Patriot Act makes illegal any disclosure on the part of the institutions concerned.

Article 206 has also been extended for four years. It authorizes the use of “nomad” connections. FBI agents do not need to identify the suspect in order to obtain the authorization to install their communications surveillance devices. An “undercover” connection is installed on all the telephones in the neighborhood of the targeted individual or on the telephones of his or her relatives. It is not necessary to demonstrate that the individual under surveillance even uses these telephones. That explains why such a measure is called a “John Doe” connection. Since the person in question does not have to be named before being subjected to surveillance, the government can legally monitor the telephone of any individual, without having to show that that individual is connected, in some manner or another, with a foreign power, terrorism, or any criminal activity.

Prior to the Patriot Act, “nomad” connections were used solely in criminal investigations, including terrorism cases, but were not allowed in intelligence investigations. A criminal inquiry includes a series of measures to safeguard the protection of privacy. Such a connection must specify the identity of the person under surveillance or the telephone proposed for surveillance. To move from one device to another, the government must make sure that the object of the surveillance identified by the warrant currently uses that device. With the Patriot Act, “nomad” connections are authorized for intelligence gathering as investigations under FISA without including these protection measures.

The reauthorization of Section 102 of the Patriot Act extended Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004 for four years.13 This authorizes surveillance of isolated persons suspected of being terrorists. These individuals are called “lone wolves.” They are part of international terrorism but act alone. This article redefines the concept of “agent of a foreign power” by including persons engaged in “international terrorism” or in “preparing for terrorist actions.” Thus to be considered an agent of a foreign power, it is no longer necessary to be in contact with such a power. This measure applies to individuals who are not U.S. citizens.

While the Patriot Act Reauthorization retains the legal form of a state of exception, it is important to remember that when the first version of the act was passed by a large majority of the House in June 2005, there was little awareness of the legal prerogatives granted in a semipermanent manner to the administration. The possibility, at the level of the written law, to set up a dictatorship or, in other words, a permanent and general state of exception, remains a constant objective of the administration. As the process leading to the reauthorization of the Patriot Act demonstrates, temporary measures are, from the beginning, expected to become permanent. The proposed Patriot Act II explicitly reveals that exceptional measures applicable to specific categories of the population, such as foreigners, are designed to be extended to everyone, including citizens.14

Notes

  1. Kate Martin, “Why Section 203 and 905 Should be Modified,” American Bar Association’s Patriot Debates, http://www.patriotdebates.com.
  2. Oversight answers, submitted by Jamie E. Brown, Acting Assistant Attorney General, May 13, 2003, on file with the House Judiciary Committee.
  3. Authorization for Use of Military force, Pub. L. 107-40, 1–2, 115 Stat. 224.
  4. “USA Patriot Act Sunset,” Electronic Privacy Information Center, http://www.epic.org.
  5. H.R. 3199, final version, http://thomas.loc.gov.
  6. Associated Press, “Senators Question Terrorism Inquiries,” Washington Post, November 7, 2005, http://www.washingtonpost.com.
  7. House Report 109–333 USA Patriot Improvement and Reauthorization Act of 2005, Sec. 605, http://thomas.loc.gov.
  8. Paul Graig Roberts, “Unfathomed Dangers in Patriot Act Reauthorization,” January 24, 2006. See archives on http://antiwar.com.
  9. “USA Patriot Act Sunset,” Electronic Privacy Information Center, http://www.epic.org.
  10. “Memo to Interested Persons Outlining What Congress Should Do About the Patriot Act Sunsets,” ACLU, March, 28, 2005, http://www.aclu.org.
  11. A secret court composed of eleven judges named by the attorney general.
  12. USA Patriot Act Additional Amendments Acts of 2006 (s.2271), February 17, 2006.
  13. Intelligence Reform and Terrorism Prevention Act of 2004; “Lone Wolf” Amendment to the Foreign Intelligence Surveillance Act, http://www.fas.org.
  14. Domestic Security Enhancement Act of 2003, http://www.eff.org.
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