The PATRIOT Act’s Poisoned Tree
AMERICAN HISTORY NEITHER began nor ended on 9/11. That day’s vile events shoved the nation down a darker path than it might otherwise have trod, but just as the attack inflicted on America was the poisoned fruit of past policy crimes and mistakes, the resultant flowering of government surveillance and information capture grew from roots set far deeper than the rubble from the Twin Towers.
Within a month of the assault, a bill called the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, giving the federal government vast new snooping powers, appeared on the floors of the House and the Senate. The USA PATRIOT Act, soon to lose the USA in standard usage, was signed into law by President George W. Bush on October 26, 2001. Voting against it were 66 House members and just one senator: Russ Feingold (D–Wisc.).
Two decades down the line, after a confusing array of follow-on intelligence-gathering laws (including the 2015 USA FREE DOM Act, which supplanted various PATRIOT Act provisions), it is not obvious that America has indeed been “strengthened.” The law has been used overwhelmingly to prosecute the war on drugs, not the war on terror, during a time when the country began moving away from prohibitionism. The new tools are error-prone, have not been shown to have prevented terrorism on U.S. soil, and have nonetheless been used as a pretext for successive administrations to construct vast, constitutionally dubious secret surveillance networks.
But efficacy wasn’t a big part of the original debate; the preventive utility of an information-gathering dragnet was widely—and wrongly—assumed. Back then, supporters and opponents were more apt to argue over the impact on civil liberties.
A common argument defense lawyers make when trying to get courts to dismiss evidence obtained illegally against their client is that it was the “fruit of the poisoned tree.” The PATRIOT Act itself was the fruit of the tree of law enforcement’s relentless desire to be free of the inconveniences of the Fourth Amendment and its guiding principles of privacy and due process.
THE WISH LIST
CRITICS OF THE law warned that it heralded the “death of privacy.” Proponents retorted that, in fact, the law wasn’t some huge departure for American surveillance. On that narrow point at least, the hawks weren’t wrong.
For example, the controversial “national security letters”—warrantless demands for data about people from third parties such as phone companies, without notifying the target of the investigation—had already been in use, authorized by the 1978 Right to Financial Privacy Act (RFPA) and the 1986 Electronics Communication Privacy Act (ECPA). The shadowy Foreign against previous surveillance abuses.
