FBI historian discusses Patriot Act evolution

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By Carol A. Clark

ALBUQUERQUE — As a young boy studying government in school, Stephan Marshall never imagined he would be dealing with the Fourth Amendment every day as an adult.

Now, as chief division counsel and historian of New Mexico’s Federal Bureau of Investigation, Marshall has no doubts about its relevance, he recently told a class of FBI Citizens’ Academy participants as he explained the evolution of the USA Patriot Act.

“The Fourth Amendment is the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized,” he said.

Marshall explained that the Fourth Amendment was designed as a response to the controversial writs of assistance or general search warrants, which were a significant factor behind the American Revolution. The amendment specifies that judicially sanctioned search and arrest warrants must be supported by probable cause.

Marshall pointed out societal differences and events between 1896 and today that have led up to the need for the USA Patriot Act. He explained that in 1928, the Supreme Court held that wiretapping was not within the coverage of the Fourth Amendment.

In 1934, the Federal Communications Act did allow law enforcement to intercept phone calls, as long as they didn’t tell anyone outside of government, he said.

Race is an example of major change, Marshall said. The 1954 United States Supreme Court decision “Brown v. Board of Education” dismantled the legal basis for racial segregation in schools and other public facilities.

By declaring that the discriminatory nature of racial segregation violates the Fourth Amendment, the case laid the foundation for shaping future national and international policies regarding human rights, he said.

Marshall talked about the Hurricane Katrina disaster in which the government evicted people from their homes and seized their guns. “Usually entering a citizen’s home to seize records and other possessions requires a search warrant if the feds look to get items from a resident’s possession,” he said. “A subpoena is typically required when documents need to be seized from a suspect’s bank or other outside source.”

Title III of the Omnibus Crime Control Act of 1968 established new guidelines and procedures for criminal wiretaps but expressly did not cover national security. “That was a long time ago, communications-wise,” he said.

Marshall recalled asking his 92-year-old grandmother what the biggest change was that occurred during her lifetime and she said it was the telephone.

“Imagine being able to talk to anyone in the world in a matter of seconds. It revolutionized everything,” he said.

In 1978, Congress created the Foreign Intelligence Surveillance Act (FISA) in order to regulate wiretapping in national security investigations.

“We rocked along from 1978-2001,” Marshall said. “Where do the terrorists fall into this? Right smack in the middle – so post-9/11, on Oct. 26, 2001, Congress passed the USA Patriot Act, ‘Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.’ It was meant for uniting and strengthening America by providing appropriate laws for the times.”

The act expands the vast authority of U.S. law enforcement agencies for the stated purpose of fighting terrorism in the United States and abroad, Marshall said.

Among its provisions, the Act increases the ability of law enforcement agencies to search telephone, e-mail communications, medical, financial and other records.

It also eases restrictions on foreign intelligence gathering within the United States; expands the secretary of the treasury’s authority to regulate financial transactions, particularly those involving foreign individuals and entities; and enhances the discretion of law enforcement and immigration authorities in detaining and deporting immigrants suspected of terrorism-related acts, he said.

“Modern technology and roving electronic surveillance present new challenges in today’s terrorism and intelligence cases,” Marshall said. “The USA Patriot Act expands the definition of terrorism to include domestic terrorism, thus enlarging the number of activities to which the act’s expanded law enforcement powers can be applied.”

Santa Fe City Council passed a resolution opposing the Patriot Act because they were worried about civil liberty violations, Marshall said.

“The federal government does not tell local law enforcement to violate people’s rights, in fact, the FBI prosecutes law enforcement who violate people’s rights,” he said. “What people don’t understand is that the process to obtain a Title III warrant is neither quick nor easy.”

Initially, he said, the FBI must draft an affidavit explaining probable cause, which typically runs 60-100 pages in length.

Then the document must first be approved by an FBI squad supervisor then by Marshall, followed by the assistant special agent in charge and then the special agent in charge.

Once those approvals are met, the document is sent to Washington, D.C., where it is simultaneously reviewed by FBI headquarters and the U.S. Attorney’s Office Department of Justice.

“Title III warrants are requested much less often than people think,” Marshall said. “From start to finish – on a good day – it takes several months. In an emergency, we can get a warrant sooner but we must follow-up with everything else later.”

Albuquerque’s FBI Special Agent in Charge Tom McClenahan agreed, telling the class, “These warrants are so manpower-intensive that we only do two or three a year and they’re usually for drug king pins. The idea that we’re going after regular citizens is just ridiculous.”