The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 was the immediate legislative response to the attacks of September 11, 2001. The USA PATRIOT Act is primarily directed towards the detection and investigation of terrorist activities. It amends various items of existing legislation to provide for this. Several sections of the USA PATRIOT Act and one section of the Intelligence Reform and Terrorism Prevention Act of 2004 were originally scheduled to expire on December 31, 2005. A separate bill, the USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006 provided civil liberties safeguards not included in the conference report.

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The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 was the immediate legislative response to the attacks of September 11, 2001. The USA PATRIOT Act is primarily directed towards the detection and investigation of terrorist activities. It amends various items of existing legislation to provide for this. Several sections of the USA PATRIOT Act and one section of the Intelligence Reform and Terrorism Prevention Act of 2004 were originally scheduled to expire on December 31, 2005. A separate bill, the USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006 provided civil liberties safeguards not included in the conference report.

The United States sees itself as being engaged in an armed conflict with Al Qaeda and the Taliban, commencing prior to the events of September 11. This position has been reaffirmed by the President of the United States in his Executive Order of 20 July 2007.

Terrorism-related offences

Terrorism is referred to within various items of legislation in the United States, including Title 18 to the US Code. The PATRIOT Act introduced new terrorism offences and increased the penalties for those who commit terrorist crimes. The Act created a new offence that prohibits knowingly harbouring persons who have committed or are about to commit a variety of terrorist offences. It increased maximum penalties for various crimes likely to be committed by terrorists including arson, destruction of energy facilities, material support to terrorists and terrorist organizations, and destruction of national-defence materials. It also enhanced a number of conspiracy penalties, including for arson, killings in federal facilities, attacking communications systems. The Act additionally eliminated the statutes of limitations for certain terrorism crimes and lengthens them for other terrorist crimes.

Financing of terrorism

It is an offence under Title 18 of the US Code to provide any material support or resources, including currency, financial instruments or financial services, to a designated foreign terrorist organization (FTO), as prescribed under the Immigration and Nationality Act (see below). Any US financial institution that becomes aware it has possession of or control over funds in which an FTO has an interest is obliged to retain possession or control and report the funds to the Office of Foreign Assets Control.

Proscription of terrorist organizations

The Immigration and Nationality Act provides for the designation of “foreign terrorist organizations” (FTO). As well as establishing the offence of providing material support or services to such a designated FTO, representatives or members of such an organization, if they are aliens, are inadmissible to and, in certain circumstances, removable from the United States. The United States has reported to the Counter-Terrorism Committee that it does not intend to allow for designation of domestic organizations (see UN Doc S/2006/69 para 3).

Investigation methods

The PATRIOT Act allows investigators to use the tools that were already available to investigate organized crime and drug trafficking, and facilitates information sharing and cooperation among government agencies. It updated the law to reflect new technologies and new threats, such as allowing law enforcement officials to obtain a search warrant anywhere a terrorist-related activity has occurred, and providing victims of computer hacking with the ability to request law enforcement assistance in monitoring the “trespassers” on their computers.

The PATRIOT Act of 2001 also expanded the provisions of the Foreign Intelligence Surveillance Act of 1978 (FISA) so that applications for a surveillance warrant need only establish that foreign intelligence gathering is a significant purpose of the proposed surveillance rather than “the purpose” of surveillance, as previously required under FISA. It should be noted that the Attorney General’s guidelines on the availability of surveillance warrants for the investigation of terrorist and related offences, or the gathering of related intelligence, is classified, as are the “minimization procedures” required under Title 50 of the US Code to ensure that the surveillance of US persons is undertaken by the least intrusive means possible.

Operating outside the scope of FISA was a National Security Agency (NSA) program of secret surveillance without warrant, authorised by an secret Executive Order of the President. Following media reports in 2005 exposing the existence of the program, nd a ruling that such surveillance was unconstitutional, the US President acknowledged the existence of the program and stated that NSA surveillance would in the future be carried out under FISA.

The PATRIOT Act of 2001 has expanded the potential use of National Security Letters, a form of administrative subpoena facilitating expedited access by the Federal Bureau of Investigation and other intelligence agencies to private records. The Act broadened the type of records accessible under National Security Letters and extended the authority to counter-terrorism investigations.

As a result of an apparent internal leak from the Central Intelligence Agency (CIA), the media in the United States learnt and published information about “enhanced interrogation techniques” used by the CIA in its interrogation of terrorist suspects and possibly other persons held because of their links with such suspects. By Executive Order of July 2007, the Director of the Central Intelligence Agency is now required to now ensure that interrogation practices are “safe for use”, based upon professional advice, and that there is effective monitoring of the CIA interrogation programmes.

Prosecution

Ordinary courts have presided over terrorism-related prosecutions, including charges of conspiracy and material support for terrorism, such as the prosecution in United States v Padilla and others in the US District Court at Miami.

Military Commissions have also been established for the purpose of trying persons detained at the military facility at Guantánamo Bay. These persons have been categorized by the United States as alien “unlawful enemy combatants”. By Military Order in 2001, the President of the United States established military commissions for the purpose of trying enemy combatants. Applicable rules have since been replaced and expanded upon under the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006. The UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism has expressed serious concerns about the ability of detainees at Guantánamo Bay to seek a judicial determination of their status (UN Doc A/HRC/6/17/Add.3, chapter II(A)). The Special Rapporteur also raised concerns about the jurisdiction of Military Commissions under the 2006 Act, their composition, the use and availability of evidence during Commission trials, including that obtained by torture or other forms of cruel, inhuman or degrading treatment, and matters concerning the equality of arms, the trial of civilians, the imposition of the death penalty, and consequences following acquittal (UN Doc A/HRC/6/17/Add.3, chapter III).

Preventive detention

Preventive detention measures have not been provided for under the law of the United States, although immigration and refugee law allows for the detention of persons constituting a threat to the security of the United States.

Deportation, extradition and transfer

The REAL ID Act of 2005 is primarily concerned with preventing the use of false identification and eliminating identity theft, but contains provisions concerning the prevention of “terrorists” from obtaining relief from removal from the territory of the United States. The Act raises the threshold concerning the credibility of asylum claims, and modifies court review possibilities for asylum seekers.

Various sources have pointed to the rendition by the CIA of terrorist suspects or other persons to “classified locations” (also known as places of secret detention) and/or to a territory in which the detained person may be subjected to indefinite detention and/or interrogation techniques that amount to a violation of the prohibition against torture, or cruel, inhuman or degrading treatment. While such conduct is extra-legal, the existence of classified locations was confirmed by the President of the United States on 6 September 2006 when he announced the transfer of 14 “high value detainees” from these locations to Guantánamo Bay. Although the President announced that at that time the CIA no longer held any persons in classified locations, he reserved the possibility of resuming this programme.

Witness protection

A Special Operations Group of the US Marshalls has, as one of its objectives, the provision of tactical support to judicial districts holding terrorist or terrorism-related proceedings. It provides prisoner escort, as well as personal protection for court staff and witnesses in such proceedings.

Protection and compensation of the victims of terrorism

No legislation exists in the United States dealing specifically with the issue of compensation for the victims of terrorism.

State of emergency

The United States has not proclaimed a state of emergency relating to any threat of terrorism against it.

Analysis provided by: dr Alex Conte (alex.conte@soton.ac.uk)

Posted: February 2008

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