Patriot Act Bill Paper

8/2/2019 Patriot Act Bill Paper

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Part I

The terrorist attacks in New York City and Washington D.C. on September 11, 2001

altered, among other things, the policy and direction of our country with regard to foreign

relations and intelligence. These attacks exposed a weakness in our anti-terrorism efforts and

our intelligence community at large. Broad changes were needed to close this gap, but some

would question if the price is too heavy for the changes that were passed. The policies that were

developed in the months after the attacks would come to shape our nations politics and civil

liberties over the next ten years.

The USA PATRIOT Act originated as a proposal submitted by President George W.

Bushs administration on September 19, 2001 (Bettelheim & Palmer, 2001). The proposal was

delivered to Congress through Attorney General John Ashcroft and was not well received in a

nearly split Congress. In order to bring the proposal to the House floor, negotiators from the

House Judiciary Committee worked with the White House to tone down the provisions within

the proposal. Those involved in the negotiations was the Judiciary Chairman, F. James

Sensenbrenner Jr. and the ranking Democratic member, John Conyers Jr. (Lewis & Pear, 2001).

These discussions took place away from public record, but result was a scaled back set of

provisions that would be reviewed by the Judiciary Committee in a hearing. The toned down set

of provisions maintained a large part of the changes suggested by the White House, but the new

set of provisions attached a sunset clause to these provisions that were designed to expire once

there was no longer a need for the heightened surveillance (Lewis & Pear, 2001). It was

apparent in these early talks that the sunset clauses were necessary for bipartisan support of the

bill (Lewis & Pear, 2001). On its way to passage the bill went through several changes. Each


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time the bill granted more power to the White House, but the final version that became the USA

PATRIOT Act retained the sunset clauses.

Shortly after the bills passage, implications of its provisions began to take shape. The

definition of terrorist was expanded and now included any foreigner who uses dangerous

devices or raises money for a terrorist group (Purdy, 2001). This change greatly broadened the

definition of terrorist and the Act also allowed the Attorney General to detain anyone who they

saw as having reasonable grounds to believe that they are a threat to our nations security

(Purdy, 2001). The ambiguity of this definition calls into question the civil liberties at stake

under the Fourth Amendment. This provision allows for the seizure of individuals who may be

participating in legitimate activities, but could, in theory, be linked to terrorism (Purdy, 2001).

While some of these affects were addressed prior to the passage of the bills, the true

consequences of what the legislation implied was fully addressed until after the bill was passed.

Questions about the legality of the Patriot Act arose within the first year of bill being

signed into law. In 2002, the Foreign Intelligence Surveillance Act (FISA) Court declared the

roving wiretap provision of the Patriot Act to be unconstitutional (Lewis, 2002). This provision

allows for approved wiretaps to be mobile with the person, instead of dedicated to a single phone

line. However, that decision was soon overturned by the United States Foreign Intelligence

Surveillance Court of Review on the grounds that the lower court was not in a proper position to

place restrictions on the Justice Department (Lewis, 2002). Both courts were previously

established by the FISA of 1978. This act had been the governing piece of legislation

concerning surveillance until the Patriot Act which altered portions of FISA (Lewis & Pear,

2001). Up to this point the Court of review had never previously met and consists of Judges

from 3 District Courts of Appeals appointed directly by Chief Justice William H. Rehnquist


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(Lewis, 2002). This ruling was unique in that, the next step for appeals is hard to determine.

The Justice Department was the only formal party in the case and their case won in the Court of

Review, while the American Civil Liberties Union (ACLU) and the National Association of

Criminal Defense Lawyers were regarded as friend-of-court status without right of appeal

(Lewis, 2002). Attorney General Ashcroft, who proposed the provision for roving wiretaps,

brought the appeal to the Court of Review after the lower court ruled in opposition to the

provision (Lewis, 2002). As a result of this ruling, the threshold for probable cause to obtain a

warrant for wiretaps was lessened (Lewis, 2002).

Resistance to the impositions of the USA PATRIOT Act began to emerge from differing

groups in the years following its passage. One of the more outspoken groups to oppose security

requests from the FBI was a group of librarians that began to shred library records on patrons

usage (Murphy, 2003). The Patriot Act granted law enforcement officers the right to obtain

library records on patrons to track any suspicious research or internet usage. The libraries,

viewing this action as a violation of civil liberties, took it upon themselves to limit the amount of

historical records and destroy any evidence that could be obtained (Murphy, 2003). This action

eventually led to the first, and only, Supreme Court case concerning the USA PATRIOT Act. In

Doe v. Gonzales, a group of librarians from Connecticut, backed by the ACLU, brought a case to

court that argued against the national security letters sent by the FBI to demand private

information recorded on library equipment (Doe, 2005). The clause allowing the national

security letters was deemed unconstitutional by Judge Victor Marrero of the United States

District Court for the Southern District of New York (Doe, 2005). This decision was appealed

by the Justice Department and the case was overheard by Justice Ruth Bader Ginsburg as a

single Circuit Justice and vacated the stay imposed by the Court of Appeals (Doe, 2005). The


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government eventually dropped the appeal and dropped the national security letters language

from the Patriot Act (Doe, 2005). This action was viewed as a victory for plaintiffs of the case.

Despite the growing opposition to the Act and its provisions, President Bush and his

administration wanted to expand its scope and use its effectiveness in the Presidential campaign

for 2004. The administration explained their position as having unreasonable obstacles in their

way in the pursuit of terrorism suspects (Sanger, 2003). New provisions the Administration

wanted to have added to the Act included law enforcement agencies issuing administrative

subpoenas without court approval, expanded death penalty provisions for terrorists, and

increasing the difficulty to obtain bail for terror suspects (Sanger, 2003). The administration

insisted that these new provisions were critical to the continued pursuit of suspected terrorists.

President Bush used this push to also aid his campaign for reelection. During the election of

2004, President Bush toured the nation touting the success of the Patriot Act and appearing on

stage with members of the law enforcement community who benefited from the provisions

within the act (Nagourney, 2004). While on the campaign trail, President Bush pushed for

support of the Patriot Act by chastising any who opposed the legislation and presenting the Act

as the only method to effective curb terrorism (Nagourney, 2004).

The renewal of the Patriot Act in 2005 took several months for both sides to reach an

agreement. A conference of Senators and Representatives devised a bill that would make 14 of

the 16 sunset provisions of the Patriot Act permanent, but opposition arose within both chambers

of Congress (Stolberg, 2005). An agreement could not be reached by the end of the year.

Instead the House and Senate approved a five week extension of the Act in order to resolve the

grievances held by the opposition to the act which included Democrats and Republicans

(Stolberg, 2005). During the extension period, President Bush campaign for the renewal of the


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Patriot Act by insisting that the hold up for passage was based on political reasons and not

substantive ones (Bumiller, 2006). President Bush urged politicians to pass the bill as quickly as

possible (Bumiller, 2006). On March 7, 2005, Congress approved a bill to send to the President

that made 14 of the 16 sunset clauses permanent, but added more judicial oversight by

preventing the FBI from demanding secret requests for information from lawyers and libraries

(Stolberg, 2006).

The three remaining provisions in the USA PATRIOT Act that are set to sunset are back

in discussion for Congress in 2011. Currently the provisions in the Act have been extended

through December 8, 2011 as opposition from Tea Party Members and Democrats did not

provide the necessary votes to proceed with a full renewal of the Act (Savage, 2011). When

talks resume this summer and fall about the renewal of the Patriot Act, the discussion will be

altered after the siege of American forces on May 1, 2011 that resulted in the death of Osama

Bin Laden. Calls for the repeal of the Patriot Act have been discussed for many years, but in the

day following the news of Bin Ladens death, social media and blog discussions are alight with

calls for repeal. This news gives a fresh argument to the case to not renew the act since the

preeminent terrorist and the mastermind behind the September 11, 2001 attacks has been killed

by American forces.

Part II

The initial proposal that would begin major discussion on the Patriot Act was brought to

Congress by the Bush administration through Attorney General Ashcroft. The Administration

submitted its proposal to Congress on September 19, 2001, just eight days after the attacks on

September 11, 2011 (Bettelheim & Palmer, 2001). This proposal contained the wish list of the


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White House for a new anti-terrorism law to be considered by Congress. Proposals in the

recommendation included roving wiretap authority, court orders for authorities that could be

used across jurisdictions, increased access to electronic information, disclosure of internet data,

more power to detain immigrants, merged habeas corpus appeals for immigrants, foreign

obtained wiretaps to be used in criminal proceedings, broader definition of the term terrorist,

and tougher penalties for terrorism (Bettelheim & Palmer, 2001). In the wake of the terrorist

attacks, the administration expected this legislation to be passed within the same week it was

presented to congress, but because of early opposition to the Ashcroft proposal, the proposal was

subject to committee review (Palmer, 2001). Ashcroft presented this proposal as the

Mobilization Against Terrorism Act of 2001 to the House Judiciary Committee on September 24,

2001 (H.R. Rep. No. 107-236, 2001).

Some of the proposals included in the Administration plan were previously rejected in the

1996 Antiterrorism bill (PL 104-132). Some Republicans, including Rep. Bob Barr who voted

against the provisions in 1996, feared that giving more power to the Administration to look into

the lives of its citizens would be unwise, even in the energized climate after September 11

(Bettelheim & Palmer, 2001). The House and Senate decided to hold committee hearings in

each of the Judiciary Committees to consider separate legislation from each branch of Congress

(Bettelheim & Palmer, 2001).

The House proposal emerged as H.R.2975 or the Uniting and Strengthening America Act

and was held in hearing with the Judiciary committee on October 3, 2001 (H.R.2975, 2001). The

constitutional authority for this bill came from Article I, section 8 of the Constitution (H.R. Rep.

No. 107-236, 2001). Committee Chairman F. James Sensenbrenner Jr. believed that this piece of

legislation had a rightful place in the Judiciary Committee instead of being organized by house


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leadership and decided to hold the committee hearing to maintain the committees power and to

build support for the bill (Palmer, 2001). The bill was brought to the committee hearing by

Chairman Sensenbrenner, the ranking Democrat on the House Judiciary Committee, Rep. John

Conyers Jr., and the Republican members of the committee (Palmer, 2001).

The Hearing for H.R.2975 took place with the presence of 36 members of the Judiciary

Committee (H.R. Rep. No. 107-236, 2001). Chairman Sensenbrenner presented H.R.2975 to the

committee as read and open for amendment on the suggestion that the bill be amended by Title

instead of a comprehensive review of the amendment. Chairman Sensenbrenner stressed the

importance of completing the hearing that same day and chose not to recess the committee until

the hearing was complete and the bill approved by the committee (H.R. Rep. No. 107-236,

2001). The Chairman then reiterated the importance of this bill in an opening statement that

emphasized the events of September 11, 2001 and the urgent necessity of Congress to expand

powers to combat terrorism (H.R. Rep. No. 107-236, 2001).

At this point, the bill has already been altered from its original proposal by the White

House. Key differences between the White House proposal and H.R.2975 included allowing

roving wiretaps only if a court finds the suspect is using multiple telephones to avoid detection,

allowing seizure of property only if it is directly linked to a terroristic crime, and limiting wiretap

evidence only to foreign intelligence and only open to members of the intelligence or

immigration community, limit detention of non-citizens to seven days without charges (Palmer,

2001). In addition to these differences, H.R.2975 also denied the Administration proposals on

allowing secret searches of the suspects property, advanced seizures of property after indictment

and before trial, and allowing the use of foreign wiretaps of American citizens as evidence in

trials (Palmer, 2001). The most important difference between the Administration proposal and


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H.R.2975 was the inclusion of sunset clauses attached to many of the provisions. This

addition was necessary to garner support from both parties and members of the Judiciary

committee who feared giving too much power to the Executive branch (Palmer, 2001, p. 2327).

The draft of the bill presented to the open hearing of the Judiciary committee was drafted

in closed-door sessions and details of those talks are not available, however it is evident that both

parties had a part in crafting the legislation (Palmer, 2001, p. 2327). Chairman Sensenbrenner

stated that the bill already represented compromise and had made no party, the left, right or the

administration, completely satisfied (H.R. Rep. No. 107-236, 2001). Conyers continues the

opening statement by acknowledging the cooperation it took from both parties to reach this draft

of the bill and urged members to continue working together to complete the bill during the

hearing.

During the hearing process eighteen amendments were heard and voted on by voice and

roll call vote (H.R. Rep. No. 107-236, 2001). Many of the amendments that were suggested

made minor changes to the bill and afforded little controversy in passing the committee (Palmer,

2001, p. 2328). One of the amendments that failed to pass by voice vote was the inclusion of a

sunset clause for the portion of the bill that altered current immigration law by Rep. Zoe Lofgren,

a Democrat from California (H.R. Rep. No. 107-236, 2001). Two additional amendments that

were proposed by Rep. Robert Scott, Democrat, of Virginia also failed approval by voice vote.

Rep. Scott proposed that the restrictions on persons obtaining biological agents be lightened to

only include those individuals that have been indicted for a Federal terrorism crime instead of the

original proposal to exclude any person who has been indicted for a crime (H.R. Rep. No. 107-

236, 2001). The second amendment proposed by Rep. Scott that failed by voice vote attempted


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to require actualintent in place of apparent intent in the definition of domestic terrorism

(H.R. Rep. No. 107-236, 2001).

Only one amendment proposed during the hearing received a roll call vote. The

amendment, proposed by Rep. Anthony Weiner, Democrat, of New York, proposed that foreign

students who are studying in America be charged a higher fee than other foreign students if they

come from a country that has provided frequent funding for international terrorism acts (H.R.

Rep. No. 107-236, 2001). This amendment passed the hearing on a vote of 25-8 (H.R. Rep. No.

107-236, 2001). The amendment passed with the vote of 19 Republican members of the

committee and six Democrats. All nays were from the Democratic Party (H.R. Rep. No. 107-

236, 2001). The bill then passed the hearing committee by roll call vote of 36-0 (H.R. Rep. No.

107-236, 2001). Chairman Sensenbrenner commented that the act of taking the bill through the

hearing proved successful by earning unanimous support from the committee (Palmer, 2001, p.

2328).

Opposing views of four of the committees Democrats were submitted along with the

committee report. Rep. Frank wrote an additional view piece defending his proposed sunset

clause to the piece of the bill that changed current immigration law. Rep. Frank believed the

change would have re-invoked McCarthy era restrictions on immigration that denied immigrants

passage into the country with differing political views (H.R. Rep. No. 107-236, 2001). Rep.

Scott offered a view of the manager amendment proposed by Rep. Cannon and how it directly

correlated to H.R.3485 and provided his original dissent from that House bill (H.R. Rep. No.

107-236, 2001). Rep. Sheila Jackson Lee wrote her additional view about the concern that the

bill allotted $50 million to improve technology along the Northern border, but the bill did not

specify the clear intention of this allotment (H.R. Rep. No. 107-236, 2001). The final additional


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view from Rep. Maxine Waters showed much praise for the bill and the efforts from the

committee, but she briefly, and vaguely, expressed concerns about the reach of the bill to reduce

civil liberties.

While being reviewed by the Judiciary committee, H.R.2975 was also referred to the

Intelligence Committee, the International Relations Committee, Ways and Means Committee and

the Resources Committee. All committees discharged the bill except the House Committee on

Intelligence, which considered the measure one additional day (H.R.2975, 2001). The Rules

Committee opened discussion on H.Res.264 on October 12, 2001. H.Res.264 provided the

ground rules for discussing H.R.2975 on the floor of the House by allowing one hour of debate,

moderated equally by Chairman and the ranking member of the minority party of the Judiciary

Committee (H.R. Rep. No. 107-238, 2001). The rule also provided that the text of H.R.3108

shall be adopted into the bill recommended by the Judiciary Committee (H.R. Rep. No. 107-238,

2001). H.R.3108, the Uniting and Strengthening America Act of 2001, was incorporated into

H.R.2975 without objection as an amendment in the nature of a substitute introduced by Rep.

Sensenbrenner to complement H.R.2975 by providing additional tools to law enforcement

agencies to combat terrorism (H.R.3108, 2001). This amendment was registered under

H.AMDT.379. H.Res.264 considered the measure to be read and the bill was closed to

amendments (H.R.2975, 2001).

The amendment H.AMDT.379 brought the House bill closer to the competing bill being

pushed through the Senate (Palmer, 2001, p. 2399). According to CQ Weekly, the addition on

this amendment was an attempt to prevent a difficult battle to pass the bill through the Senate

(Palmer, 2001, p. 2399). This sentiment was echoed in the floor discussion of H.Res.264 by

Republican support of the new bill whose goal was for it to reach the White House as quickly as


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possible (H.R. Rep. No. 107-238, 2001). The details of this amendment were discussed and

decided upon in close door sessions with Speaker J. Dennis Hastert, Judiciary Chairman

Sensenbrenner and White House negotiators the day before the floor vote for H.R.2975 (Palmer,

2001, p. 2400).

Democrats became infuriated that they were excluded from the process of rewriting the

bill and were upset that the bill they had developed in the Judiciary committee was being

amended without consent (Palmer, 2001, p. 2400). This sentiment exposed itself during the floor

discussion on the passing of the House rule to vote on H.R.2975. A partisan split occurred

within the House during this discussion. The Democrats argued that the process had become

undemocratic by casting out the bipartisan measure passed by the Judiciary Committee (H.R.

Rep. No. 107-238, 2001). Other sentiments from the dissenting Democrats show that they were

concerned about Congress losing power in legislating by giving too much power to the Executive

Branch, there being not enough time for a thorough review prior to a floor vote and there was o

real reason for urgency (H.R. Rep. No. 107-238, 2001). Opposition from the Democrats

centered on Rep Conyers (H.R. Rep. No. 107-238, 2001).

Republicans countered these arguments by insisting that the bill, as amended by

H.R.3108 was similar to the bill proposed by the Administration three week prior and that the

House had sufficient time for review (H.R. Rep. No. 107-238, 2001). Republicans also retorted

that the amendment strengthened the weakened Judiciary Committee bill and that speed was of

the utmost importance due to eminent dangers to our nation (H.R. Rep. No. 107-238, 2001). The

House Republicans believed that the amended H.R.2975 would expedite the approval process in

the Senate and reach the White House quicker than the bipartisan version (H.R. Rep. No. 107-

238, 2001). H.Res.264 passed by a decidedly partisan margin of 214-208 with three Democrats


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voting in support of the rule and three Republicans against the rule (H.R. Rep. No. 107-238,

2001).

Floor discussion on the amended H.R.2975 echoed many of the same concerns expressed

in the rules discussion, but the bill had more bipartisan support (H.R.2975, 2001). Most

Democrats who opposed H.Res.264 were concerned about the process and not the substance of

the bill (H.R. Rep. No. 107-238, 2001). The bill passed the House on a roll call vote of 337-79.

Only three Republicans and less than half of the Democrats voted against the bill (H.R.2975,

2001). The House bill was then presented to the Senate

The Senate bill, S.1510 took a decidedly different route to being voted on. The details of

the Senate bill were the result of closed door session between the Senate Judiciary Chairman,

Patrick J. Leahy, the committees ranking Republican, Republican Orrin G. Hatch and

negotiators of the White House (Palmer, 2001, p. 2331). Unlike the House bill, S.1510 gained

the support of the White House and granted Ashcroft many of the provisions he desired.

Changes from the Administrations proposal included some limits on secret searches, limits on

who could receive the information from a roving wiretap and limiting detention on non-citizens

to seven days without being formally charged (Palmer, 2001, p. 2330). The bill sponsored by

Leahy and Hatch bypassed committee hearings and proceeded straight to a floor vote in the

Senate (Palmer, 2001, p. 2331).

In floor discussions concerning S.1510 it is revealed that some of the members,

particularly Senator Arlen Spector were concerned that the bill had bypassed committee hearings

and that legislation has not been passed (S.1510, 2001). Other concerns heard during the floor

discussion include a number of amendments brought forward on S.1510 that concerned portions


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of the bill that limited the 4th Amendment to the Constitution and provisions that would add

sunset clauses to S.1510 (S.1510, 2001). These amendments were largely championed by

Senator Russell Feingold. All amendments were struck down and were moved to be tabled by

Senator Tom Daschle (S.1510, 2001). No amendments were formally considered and the bill

moved on to a floor vote (S.1510, 2001). S.1510 passed the Senate on a vote of 96-1 (S.1510,

2001).

As a result of the House passing the amendment to the original H.R.2975, no conference

took place between the Senate and the House; instead, a new bill was introduced to the House.

The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept

and Obstruct Terrorism Act of 2001, the USA PATRIOT act, was presented to the House on

October 23, 2001. Despite being referred to several House committees, none of them held

further hearings on the bill (H.R.3162, 2001). Rep. Sensenbrenner moved to suspend the rules

and pass the bill as it stood, but the house proceeded with one hour of debate on the suspension

(H.R.3162, 2001). The debate largely centered on the minor differences between the bill being

considered, H.R.3162, and the bill originally passed by the house (S.1510, 2001). Many

concerns centered on the lack of review and the urgency that was being thrust upon the House by

the administration, but most parties supported the bill (S.1510, 2001). The day following the

floor discussion a motion to suspend the rules and the bill was approved through a roll call vote

of 357-66. Those opposing the vote included 62 Democrats and three Republicans (H.R.3162,

2001). The bill then moved to the Senate for a floor vote that same day. The Senate approved

the measure 98-1 with Senator Russ Feingold being the lone nay vote (H.R.3162, 2001).

President Bush signed the bill on October 26, 2001 and H.R.3162 became Public Law No. 107-

56 (H.R.3162, 2001).


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Part III

Prior to the events of September 11, 2001, the USA PATRIOT Act would have likely

failed in the House or Senate based on the restrictive proposals that it contained, but the terrorist

attacks changed the political and cultural attitude of America. Looking back to the campaign of

2000, George W. Bush promised a more humble attitude towards foreign policy (Pfiffner, 2009,

p. 37). This idea seemed to carry through the first nine months of his Presidency as he pushed

for reformative domestic legislation such as the No Child Left Behind Act. During his first

year in office, President Bush was faced with a divided congress, despite being a Republican

majority, and he possessed little political capital to pull favor within Congress (Thurber, 2009, p.

4). This political position afforded little Executive power in terms of legislation. Perhaps his

campaign foresaw this situation with the Legislature and centered his Presidential campaign on

promises of a bipartisan government (Thurber, 2009, p. 9). Legislative proposals from the Bush

Administration saw little support within congress for approval or recognition. During this time

the Bush Administration was alienated from the legislative process with little recourse for power

(Thurber, 2009, p. 4).

The conditions within Congress did not bode well for unified support either. The Senate

chamber was split equally with 50 Republicans and 50 Democrats (Thurber, 2009, p. 2). Power

in this chamber relied more on compromise and cooperation and less on partisan politics. The

Republicans controlled the House,by a narrow margin of 221 Republicans and 211 Democrats

with 2 Independent candidates (Thurber, 2009, p. 3). This majority gave the Republicans an

upper hand on committee power, but the power of the floor vote was largely equal. The

Administration could not rely on party influence at this time to pass legislation and relied on

compromise bills that would appease both parties in the House and Senate. In most situations


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the President is likely to have legislative success with a unified Congress, but the roughly equal

split in both chambers did not allow for easy passage of Executive legislation (Thurber, 2009, p.

16). Government at this time witnessed similar conflicts to a Congress and Executive divided

across party lines would experience due to the narrow margin of Republican control (Thurber,

2009, p. 17). The political climate had the potential to maximize effective policy making by

forcing to bipartisan compromises that can be achieved when Congress and the Executive

Branch are out of congruence (Thurber, 2009, p. 6). To bypass the division in Congress, 2001

saw an increase in attempts for the House to bypass standard procedures to pass bills without

engaging in chamber debates or votes (Thurber, 2009, p. 20).

Even though President Bush enjoyed the first two years of his term with a Republican

majority, the close margin acted as a split congress. Implications of a split Executive and

Legislative branch mean that both sides must be willing to work cooperatively in order to create

meaningful policy (Sinclair, 2009, p. 88). In the end, both branches of the government rely on

one another for success and have political incentive to work with one another productively

(Sinclair, 2009, p. 86). The President needs support and action in Congress on the key

legislation in order to be considered successful (Sinclair, 2009, p. 84). This separation of power

is an obstacle placed in front of a legislatively minded President to ensure the policies coming

from the Executive Branch are congruent to the will of the people (Conley, 2009, p. 170). On

the other hand, Congress is reliant on the President to support the policies coming from the

Legislative branch by preventing use of the veto. Members of Congress also rely on a popular

President to gain political support with voters by working cooperatively with the President on

bills that have public support (Conley, 2009, p. 170).


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This situation changed after the attacks of September 11, 2001. The President and

Congress now had a common objective to work towards. The attacks of September 11, 2001

demonstrated weaknesses within the anti-terrorism efforts of the U.S. government and the

Administration was quick to propose new legislation. The attacks granted the Administration

political capital to propose sweeping changes to our anti-terrorism policy (Pfiffner, 2009, p. 37).

This new found support came from within government and the American people. Internally,

Congress was asked to stand with the President on this matter to show solidarity within the

government (Thurber, 2009, p. 32). This act may have precipitated feelings of pressure and

urgency discussed in Part II of this paper. Regardless of how Congress aligned with the

President, Bush had the popular support of the American people after September 11,2001.

President Bushs approval rating rose from 51% in a poll taken from September 7 to September

10, 2001 to 86% in a poll taken from September 14 to September 15 (Pfiffner, 2009, p. 50). This

rise in approval came prior to the proposal of anti-terror legislation to congress on September 19,

2001 and was based on promises of action rather than the action itself.

Once proposed, the USA PATRIOT Act garnered the attention of Congress and the

citizenry. The Administration had the support of the general population, except for some civil

liberty watchdogs, to help push this proposed bill through Congress (Thurber, 2009, p. 24).

Congress was wary to pass this legislation as quickly as requested, but they were asked to

support the president on this bill and to pass the legislation as quickly as possible (Thurber, 2009,

p. 32). In particular, the Presidents own party saw fit to champion the proposal through

Congress (Thurber, 2009, p. 30). If an effort to promote the proposal, they defended the clauses

as necessary and rushed discussions concerning civil liberties in the name of security as

evidenced by the process in which the bill proceeded through both chambers. President Bush


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was able to use this situation to strengthen party bonds in order to gain support for the newly

adopted bill (Skowronek, 2005, p. 111). Party strength increased as Republican leaders worked

with the administration to re-work the bill in closed-door sessions. In the end, it was evident that

the President and Congress must work together to get the bill passed (Thurber, 2009, p. 25).

Under this understanding, the final bill contained concessions that limited the scope and

influence of the original bill proposed by the Administration.

For matters that pertain to foreign relations, the structure of our government divides the

control between the Executive and Legislative Branches. The Presidency acts as a point of

formal communications with foreign entities, but the power to pass legislation rests with

Congress and the approval of treaties lies with the Senate. According to the structure laid out by

the Constitution, no one branch has sufficient control to make unilateral decisions regarding

foreign policy. In a statement made by John Yoo, a Deputy Assistant Attorney General for the

Justice Department, he argued that the Executive branch had inherent powers during wartime

that granted the President unilateral power in making war (Hamilton, 2009, p. 287). Yoo

acknowledged that Congress had the power to declare war, but this power is simply a matter of

public record and not a form of action (Hamilton, 2009, p. 292). His argument stated that the

power to declare war is different than the power to make war (Hamilton, 2009, pp. 293-294).

The power to declare war has long been held as the same power to make war, but the distinction

here Yoo makes in the Presidents role as Commander-in-Chief. The President alone has the

power to authorize the action of war and combat because the military does not answer to the

commands of Congress. Yoo further states that the authority of Congress to restrict the military

actions of the President lies within controls of the money to fund war efforts, but Congress has

no real control over the actions of the President during wartime (Hamilton, 2009, p. 298).


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Interpretations such as this can lead to near limitless power of President during wartime and

supremacy of the Executive branch over the other branches within the government effectively

removing the system of checks and balances.

Following September 11, 2001, President Bush emerged as a strong President with the

backing of public support during the next few years in office as he led the nation in the War on

Terror. Conversely, Congress was forced to take a more subdued role in government as actions

against the Presidents will were considered to be out of favor with the public. Hamilton and

Madison struggled with this balance of power between the two branches as well when they were

working to build support for the Constitution. Hamilton argued that the President needed to be a

strong figure and a cornerstone of good government (Federalist Papers number 70). The

structure of the American Executive branch is conducive to a strong President by ensuring that

the power given to the Executive branch rests, ultimately, with one individual. Hamilton writes

about the consequences of having power of the executive divided by insisting that unified power

prevents a weakened executive through dissention (Federalist Papers number 70). This,

according to Hamilton, is especially true during times of war when dissention with a divided

executive branch could lead to a breach in national security (Federalist Papers number 70).

Hamilton wrote about an energy that is necessary to the Presidency. This energy could be

wielded effectively by the President to carry out laws effectively and provide leadership for a

nation looking for guidance.

Madison took a more poised view of the branches by discussing the importance of checks

and balances between them. Madison worried about the appearance of powerful rulers or

factions within the American society that could threaten the liberty granted by the Constitution

(Federalist Papers number 51). Madison was largely concerned about majority factions within


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society oppressing the minority, but also recognized that a powerful ruler could arise and take

advantage of the Executive position to gain extraordinary powers outside of the framework of the

Constitution (Federalist Papers number 51). Madison insisted that safety checks be put in place

to prevent such an occurrence. The first proposal was that each branch should be wholly

independent of one another (Federalist Papers number 51). Independence ensured that each

branch was acting within its own prescribed role and without influence or corruption from the

other branches. The second proposal from Madison was that each branch is responsible for their

role and faithfully executed their role in the protection of the Constitution and the rights of the

people it governs (Federalist Papers number 51). The responsibility inherent in each branch of

the government ensures that actions taken by one branch of government can be counter-acted by

another branch to prevent one from usurping the others.

After September 11, 2001 and under the advice of John Yoo, President Bush took a

decidedly Hamiltonian view of the Presidency. President Bush used the powers inherent in the

Commander-in-Chief role to expand the Presidencies power in line with the theory that Hamilton

had in mind for the Presidency during times of war (Pfiffner, 2009, p. 52). President Bush

intended to use this power to develop a unilateral foreign policy that excluded the Congressional

branch of the government (Pfiffner, 2009, p. 38). The expansion of surveillance and other anti-

terrorism tactics that were proposed by the White House were a means to legitimize the action

that the President was already authorizing under expanded Executive powers.

President Bushs administration effectively altered the way in which the United States

conducts itself during wartime by asserting detention of war criminals without bringing formal

charges, the treatment of prisoners during war time and the scope and reach of communications

monitoring the public (Pfiffner, 2009, p. 52). Apart from bypassing Congress on a number of


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these decisions, President Bush also bypassed the courts by asserting that no judge issued

warrant was needed to carry out communications monitoring when national security was at stake

(Pfiffner, 2009, p. 52). It was evident that President Bush took a distinctive style to the

Presidency after the events of September 11, 2001 by becoming direct, decisive and unilateral

(Owens, 2009, p. 311). In order to justify his actions, President Bush insisted that he was

following extraordinary powers granted to him in the Constitution (Pfiffner, 2009, p. 38). He

was the first President to take these powers this far. This action attacks the base of the separation

of powers dictated by the Constitution (Pfiffner, 2009, p. 38). President Bush declared that

because he was granted the powers of Commander-in-Chief, he was able to take the Hamiltonian

position that the Executive branch has the power to bypass the other branches of government for

the need of national security. With the public support and sympathy, President Bush was able to

use the national security line to validate the extreme measure proposed.

Despite the usurpation of power by President Bush from the Congressional branch,

Congress also failed to act in their Madisonian responsibilities to secure their powers and their

role in government. According to Madison, the system of checks and balances is intended to

work only when each branch is acting to prevent the other two from gaining too much power.

After September 11, 2001, Congress had a difficult task ahead of them in order to secure and

defend their power. President Bush had the full weight of public opinion supporting his actions

that were riding on a wave of new found patriotism. Following the attacks on New York,

Congress passed a bill that allowed President Bush broad discretion to act militarily on any

country he deemed necessary (Pfiffner, 2009, p. 50). This effectively waived Congresss

constitutional duty to declare war and gave unilateral power to the Presidency.


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In the face of national security, growing public support and an ambitious President,

Congress faltered in its governmental role. The bill passed on September 14, 2001, showed that

Congress would not act on its own constitutional role to make declarations of war. Instead, it

transferred the power of declaring war to the Presidency and unified the powers of foreign

relations (Pfiffner, 2009, p. 46). It was generally understood that Congress lacked the fortitude

to counter the ambitious President as prescribed by Madison (Pfiffner, 2009, p. 41). This action

was against Madisons proposals to separate powers within government and risked putting too

much power in the Executive (Owens, 2009, p. 311). One reason for the fear behind the

unification of powers is that these powers may not be reversible once transferred and the

Congressional body may remain weakened in foreign relations because of this action.

During the process of passing the proposals that would become the USA PATRIOT Act,

Congress began to reassert itself in the defense of their constituencies and for civil liberties.

President Bush used his expanded position and the recent events to push for legislation that

favored stronger surveillance and anti-terrorism legislation (Owens, 2009, p. 315). However,

this legislation still had to pass the House and Senate. Instead of approving and passing the

Administrations proposals outright, Congress placed restrictions on these powers to protect civil

liberties (Pfiffner, 2009, p. 53). One of the more important restrictions that Congress added to

the Presidents proposal in the original USA PATRIOT Act was the sunset clauses of most of the

provisions. Congress believed that these provisions would no longer be necessary once the war

effort was complete and they did not wish for the Executive branch to retain these powers.

However, none of these provisions have been allowed to expire. Most of these provisions have

been made permanent in legislation passed when their renewal came up and the others have been


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extended as each sunset date approaches. In the end, the USA PATRIOT Act became legislative

justification for the Presidents War on Terror(Owens, 2009, p. 318).

The passage of the USA PATRIOT Act challenges the foundation of our Constitution by

the process of how the bill was passed originally and the substantive portions of the bill that, in

some views, limit civil liberties. Congress has slowly gained back a position of power by

showing less attachment to the Administration with each renewal of the USA PATRIOT Act, but

has still given the Presidency unilateral control on anti-terrorism measures by maintaining and

renewing the provisions within the Act. The methods used by Congress to renew and possibly

repeal that Act in the future can demonstrate the lasting effect on Presidential and Congressional

relations. Congress needs to uphold its Madisonian role in government to protect its

independence from other branches. Congress also needs to react to current public opinion to

takes steps to reverse the limits placed on civil liberties. This discussion continues to play an

important role in our politics and will influence our views on separation of power into the future.

Add House Report 107-236 and House Report 107-238 to bibliography also HR3108 and fix

HR2975 and S.1510 and H.R.3162

Documents

Patriot Act Bill Paper