A federal judge ruled Jan. 23 that a portion of the USA PATRIOT Act is unconstitutional, marking the first legal decision to set a part of the act aside.

U.S. District Judge Audrey Collins said the PATRIOT Act’s vaguely defined ban on giving expert advice and assistance to organizations deemed international terrorism groups violates the First and Fifth Amendments of the Constitution.

The lawsuit against the act was brought by the Humanitarian Law Project, representing five organizations and two U.S. citizens who wanted to provide expert advice to Kurdish refugees in Turkey. But the lawsuit is but one of hundreds of challenges to the Act being raised in the courts and in legislatures by politicians, average citizens, organizations, and even cities and communities.

The PATRIOT Act’s vague prohibition against advising and assisting international terrorism groups is but one controversial section of many in the Act.

Section 215 of the Act allows the government to force libraries, financial institutions, places of worship, medical and other public agencies to turn over personal records as long as the government can certify to a judge that the records are necessary to protect against terrorism. Section 505 uses an even lower standard: the attorney general can write a “national security” letter to force public agencies to turn over personal records, without any judicial oversight.

Section 218 expands the powers of the Foreign Intelligence Surveillance Act (FISA) of 1978, which allowed the government to conduct secret searches and wire taps on persons suspected to be agents of foreign powers. The PATRIOT Act altered the law so that now the cause for the search need not be foreign espionage but any connection with a terror investigation.

Section 213 expands certain FISA powers to criminal searches, allowing police to search private property without prior notice to the owner. The law says the owner must eventually be notified, but gives law enforcement discretion on when.

Sections 215, 218, 505 and many other parts of the Act sunset – or go out of service – in 2005. But that’s not good enough for many individuals, organizations, and politicians.

Sections 213, 215, 218, and 505 are each under attack. The first lawsuit against the PATRIOT Act came in July 2003 when the ACLU challenged the constitutionality of Section 215 on the grounds that the section allowed the government to collect too much personal information on people not suspected of criminal activity.

Legislation on the federal level is being considered to neutralize other sections of the act as well, and the ACLU reports that more than 230 communities, including Los Angeles, have passed resolutions against certain sections of the Act.

But if the Act eventually dies by dismemberment, some underlying law and historical trends from which it sprang will still be around. One example of underlying law is FISA, written in 1978, which allowed the government to do wire taps and secret searches on those suspected to be involved in foreign espionage.
Historical trends seem to show that when the country is threatened, the Constitution is not so much set aside as interpreted as allowing the kinds of things – and worse – that the PATRIOT Act makes possible.

“There’s always been an argument that the Constitution will allow whatever is necessary to preserve the union,” said Christopher Waldrep, professor of history at SF State.

Waldrep cited the Department of Justice’s actions in January 1942, when thousands of citizens of Italians, Germans and Japanese were rounded up in a manner very like people of Middle Eastern descent were rounded up after the Sept. 11 attacks. Those rounded up in 1942 were not charged for terrorism, but merely sedition – criticizing the government, he said.

During World War I, 10,000 women were rounded up for subverting the war effort – they were suspected of spreading venereal disease to the men, Waldrep said.

Waldrep said suspensions of rights go back at least as far as President Lincoln’s suspension of habeas corpus in the Civil War. Criticism of such suspensions has always been strong – and the effect of the Constitution has never permanently been seriously infringed, he said.

“(Changing the Constitution) is a slow process,” he said.

Another historian highlights another trend that keeps acts like the PATRIOT Act alive -- the scapegoating of immigrants.

“The pattern is suspicion of certain groups of immigrants,” said Austin White, professor of history at City College of San Francisco.

White said that acts infringing civil liberties and constitutional rights have targeted immigrants since the 1790s, when reaction to the French Revolution helped foster the Alien and Sedition Acts of 1798. This was an attack on the French, he said. The Smith Act, following the Red Scare of 1918-19, was targeted to Russians. He also mentioned the Chinese Exclusion Act of 1882 and the Japanese internment during World War II as further examples of this pattern.