The U.S Constitution and National Security Term Paper

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Abstract

The rights of U.S. citizens to non invasion of privacy, unreasonable search and seizures, which are protected by the fourth and ninth amendments of the U.S. Constitution, are being circumvented by those who claim that we need to protect the National Security of the United States from terrorist enemies from within and outside the borders of the United States. In hast of the Terrorist attacks of September 11, 2001, the Patriot Act was passed by the U.S. Congress that gives the U.S. President broad powers. This act gave the U.S. President, the power to issue almost unlimited warrantless surveillance of its citizens. There are some who call this act a violation of the separation of power that the U.S. Constitution strictly prohibits. There are government officials within the U.S. Government who argue that these powers are required to track and identify Terrorist who want to cause harm to the United States and its citizens. There needs to be serious constitutional discussions to determine how far we must go to protect the rights of U.S. citizens and how to protect the National Security without violating these rights that the U.S. Constitution protects.

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Introduction

On Sept. 11, 2001 the U. S. suffered a shocking series of terrorist attacks, as three passenger planes were hijacked and used as suicide bombers alongside the World Trade Center in New York City and the Pentagon remote Washington, D.C. A fourth hijacked plane crashed in western Pennsylvania, in fact before it could reach its planned target. Afterward, the deterrence of future attacks has turn out to be a top national concern. As a reaction to these attacks, most Americans consent on the need to toughen the nation’s defenses in opposition to terrorism. However, particular antiterrorism proposals have aggravated intense debate. At the center of that discussion is the question of how to best enhance security while maintaining civil rights. In particular, the discussion focuses on the restrictions of suitable government surveillance, particularly in the still emergent area of Internet communication, and the manner in which the government treats immigrant groups in the investigation of terrorist activities.

To fight against terrorism, the Department of Justice has requested Congress for allowance of broad new surveillance authority in criminal investigation. Law enforcement executives say that their capability to track terrorists and put an end to their operations is stalled by unwieldy policies on the use of government surveillance. Such regulations have become outdated, they argue, because mobile telephones and Internet use have basically changed the way communication. The Justice Department also tries to find increased autonomy in its handling of immigrants assumed of terrorist actions. Under the anticipated procedures, the attorney general would be granted permission to deport alleged terrorists devoid of judicial assessment and in a time of “national emergency” would be able to confine immigrant suspects for an infinite amount of time without officially allege them. These adjustments are essential to dislocate the plans of terrorists group found in the U.S., proponents argue. A number of lawmakers and advocacy group consider the Justice Department’s proposals go beyond the limits of adequate government intrusion in people’s lives. They argue that rearranged and raised surveillance power will not considerably weaken terrorists, but will overrun the privacy of everybody and cause the U.S. to grow to be an unfree security state. (Timothy, 2007).

Many civil libertarians also contend that stripping immigrant suspects of their rights under the law subjects them to fundamentally unfair treatment and invites abuse. Targeting immigrants, they continue, increases the risk of discrimination against all members of ethnic groups from whom a small number of terrorists emerge. Finally, the manner in which reform measures are adopted also raises controversy. The Justice Department has asked Congress to implement its proposals instantaneously, arguing that the state facade sustained danger and must be given larger power to identify and avert potential attacks. However, opponents warn that excessively hasty measures will create unproductive solutions that not succeed to attack terrorism, and risk impairment of the nation. Such regulations must be approved only after systematic deliberation, they argue.

Security and Liberty: An Historic Tension

Policy makers have extensively had to equilibrium the need for efficient security with safeguard civil liberties. Although the terrorist attacks that precipitated the passage of the USA Patriot Act took place in 2001, analysts say that to put the law in proper perspective, it helps to look back in time at what was going on in the U.S. The 1950s, 1960s and 1970s saw the birth and growth of major civil rights and antiwar movements throughout the U.S. In that period, both the FBI and the CIA were keeping close tabs on individuals and groups the agency felt posed a threat to the federal government. Specifically targeted were individuals, like Rev. Martin Luther King Jr., and groups, like Students for a Democratic Society (SDS), who stood at the forefront of the two parallel movements.

While the CIA focused on illegally gleaning information by opening people’s mail, the FBI’s basic tactic was to try to discredit leaders and groups by spreading false allegations and rumors via the media. This was accompanied by massive and illegal surveillance campaigns in which the FBI infiltrated various groups and accumulated reams of information about who was involved in the various groups.

The most notorious of those surveillance and misinformation campaigns was the counterintelligence program, called COINTELPRO that the FBI operated against the leaders and members of the civil-rights and black-empowerment groups of that era. When light was finally shed on the bureau’s practices, a congressional committee, headed by Sen. Frank Church (D, Idaho), investigated the FBI and issued a report denouncing its tactics.

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The so-called Church Committee also recommended that new safety measures be put in place to ensure that the federal law enforcement community could never again wreak as much havoc as COINTELPRO had caused. “Too many people have been spied upon by too many government agencies and too much information has been collected” by illegal methods, the Church report said. (Sanford, 2006).

After the Church Committee issued its report, a barrier was erected between the FBI and the CIA that was meant to curtail information-sharing between the two agencies. One of the most important laws to come out of the turmoil of the 1960s and 1970s was the Foreign Intelligence Surveillance Act (FISA), which Congress passed, and President Jimmy Carter (D, 1977-1981) signed, in 1978.

Before the passage of FISA, the FBI had simply conducted illegal surveillance operations whenever it wanted to, and justified the operations, if and when the agency was questioned about them, as matters of national security. Often, the bureau charged that those it was watching were connected to foreign governments, usually the Soviet Union. By invoking the threat allegedly posed by the communist regime, the FBI was able to insulate itself from criticism.

FISA mandated that the bureau demonstrate to a secret court that the purpose of a particular act of surveillance was to gather foreign intelligence. Because the burden of proof required to get a warrant for surveillance was significantly lower in the FISA court than in regular court, the law stipulated that such surveillance could not be used for domestic criminal cases. That provision was intended to protect Americans from illegal surveillance ostensibly for the purpose of monitoring a foreign power.

The effect of this stipulation in FISA was to split the FBI and the CIA, the U.S.’s chief investigative and intelligence agencies, respectively. That separation was undone by the USA Patriot Act, and became a major source of contention between Justice Department officials, who applauded the removal of the wall between intelligence and criminal prosecution, and civil libertarians, who decried the change.

Following the September 2001 attacks, many in the Justice Department wanted to use FISA warrants more liberally, in situations in which gathering intelligence was intent of a warrant but not the sole intent. The USA Patriot Act was crafted to include a provision to that effect.

In May 2002 the Foreign Intelligence Surveillance Court issued a ruling in which it asserted that the gathering of intelligence against a foreign power must be the purpose of a warrant. The ruling was issued in response to a government request for a warrant. While the FISA court granted the warrant, its ruling contradicted the wording of the USA Patriot Act. Since the court issued its ruling in favor of maintaining a separation between intelligence and criminal prosecution, which runs counter to the Justice Department’s stance on the issue, the department appealed the ruling to a review court.

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In November 2002, the Foreign Intelligence Surveillance Court of Review, which is the appeals court for the FISA court, issued its ruling. It ended the forced separation of the FBI and CIA, reversing two decades of government policy regarding interaction between the two agencies.

In its ruling, the review court said that a nation fighting terrorism must derive maximum benefit from the use of all its assets. That, according to the review court, included encouraging intelligence and law enforcement agencies to work cooperatively. “Effective counterintelligence, as we have learned, requires the wholehearted cooperation of all the government’s personnel who can be brought to the task,” the court wrote. “A standard which punishes such cooperation could well be thought dangerous to national security.” (Sanford, 2006).

In fact, the review court wrote, creating a wall between intelligence and law enforcement purposes and agencies was never the intent of FISA. Rather, that standard had been adopted in the years since FISA was passed. “In sum, we think that the FISA as passed by Congress in 1978 clearly did not preclude or limit the government’s use or proposed use of foreign intelligence information…in a criminal prosecution.” (William, 2007).

Recent Antiterrorism Measures

In 1978, mainly in reaction to emergent evidence that the Federal Bureau of Investigation (FBI) had used its surveillance control against home political rebel working within the law, Congress approved the Foreign Intelligence Surveillance Act (FISA). FISA established the legal structure for surveillance of possible intelligence and terrorization. The regulation permits investigators to get approval from secret courts for wiretaps on persons suspected of work together with foreign supremacy. (Under the law, “foreign powers” is understood to include hostile organizations based in other countries, not just national governments). However, the information achieved from such covert taps is not allowable in criminal trials, since the defendant is not set access to the evidence offered to the secret court. Calls for expanded federal powers to combat terrorism increased in 1995, after a bomb exploded in a federal building in Oklahoma City, killing 168 people. (Sanford, 2006) In reaction to this bombing, Congress permitted the Antiterrorism and Effective Death Penalty Act of 1996. The act confines the number of petition accessible to death row convict and sanctions the use of secret proofs in extradition hearings. Both of these provisions sparked intense criticism from civil liberties advocates, who claimed that they violated crucial constitutional protections.

The law’s framers had originally sought to expand the government’s wiretapping authority and mandate the use of chemical “taggants” in gunpowder and explosives – which allow forensics experts to trace the source of substances used in attacks. However, those provisions were ultimately abandoned following vigorous objections from a coalition of civil rights groups. As a result of the destruction caused by the Sept. 11 attacks, many viewers have concerns over the competence of the country’s security procedures. (Timothy, 2007) Only foremost breaches in intelligence could have permitted such an immense attack to occur, they argue, so the key to evade further devastation is to close those breaches. Antiterrorism efforts are focused mostly on better surveillance of alleged terrorists, and recognizing and discontinue individuals who come to the U.S. to help organize terrorist assault.

In an effort to avoid future intelligence collapse, the Bush administration is approaching for increased power to watch suspects, collect intelligence and gain access to criminal networks. The legislative package that the administration favors, proposed by the Justice Department and championed by Attorney General John Ashcroft, would make substantial changes to the rules governing wiretapping and electronic communications. (Jeffrey, 2001) Under existing law, if the administration wishes to listen a suspect’s conversations, it must get a warrant from a magistrate. The warrant be valid to a precise phone, so if a suspect uses another line the police cannot listen in lacking gain another warrant.

The Justice Department is looking for to change and expand that law in quite a few ways. First, it wants to move from an arrangement of phone-specific wiretaps to one of “roving” wiretaps, where surveillance power is linked to particular suspects and no matter what phone they turn out to use. The government also desires to adjust surveillance of Internet use in a way it asserts is similar to surveillance of phone communication. The Justice Department’s suggestion would fundamentally treat the Web sites an individual visits and the electronic mail address a person uses as comparable to the phone numbers an individual dials. (Sanford, 2006).

The government would also require Internet Service Providers (ISPs) to put in so-called Carnivore software onto their systems, which would assist government supervision of their customers’ online activity. Carnivore screens electronic correspondence for key words that investigators determine to be linked to criminal or terrorist activities. Using Carnivore, administrations could interrupt all communications that use definite words or phrases, and then scrutinize them to see if they emerge to be connected to criminal activities. (Elizabeth, 2006).

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The Bush administration would also permit courts to judge proof gathered by other governments adjacent to U.S. citizens living overseas, even if the surveillance used would have been measured unlawful in the U.S. Finally, the government wants to eliminate restrictions on the sharing of intelligence between government agencies. Currently there are firm boundaries designating who has access to information gained in criminal investigations, but the administration wants information to flow easily between agencies. Under the proposed reforms, criminal investigators could share information with any federal official.

Increased Surveillance Questioned

Some of the Justice Department’s proposed surveillance measures have met with practically no resistance. For example, there is fairly wide agreement that wiretapping laws ought to be updated to account for the mobility available to criminals through cell phones. However, many critics say that other proposals threaten to illegitimately expand government authority. Those observers question the effectiveness of the proposed standards in preventing attacks, and say that they could fundamentally damage the nation by curtailing a variety of freedoms. “We do not want the terrorists to win by having basic protections taken from us,” says Sen. Patrick Leahy (D, Vt.). (Timothy, 2007).

The monitoring of electronic communication is a major source of contention. Opponents particularly criticize the Justice Department’s attempt to create practices similar to those used in phone surveillance. Unlike a list of phone numbers, which reveals none of the actual content discussed in the communication, the electronic equivalents convey more substantive information.

For example, e-mail routing includes the e-mail addresses of sender and receiver which, unlike phone numbers, are almost always attached to only one person as well as the message’s subject line. Also, tracking suspects’ Internet activities can reveal the URLs (Uniform Resource Locators) of the sites they have visited. Investigators would therefore be able to learn what suspects have been reading and what terms they have used to search for information. “This is like giving law enforcement the power based only on its own certification to require the librarian to report on the books you had perused while you visited the library,” says the American Civil Liberties Union. (James, 2007) That type of data, critics argue, falls well within the bounds of constitutionally protected privacy, and investigators should not be able to access it without meeting a high burden of probable cause.

Even if the legislation consent that information could be used only for lawful purposes, some civil libertarians articulate concern on condition that the government with authority that it could simply exploited. By allowing agencies greater right to use personal communications, enlarged surveillance authority persuade invasive strategy for intentions outside of law enforcement, critics argue. “The danger whether or not it’s severe enough to refuse the proposal is that this could make it too trouble-free for the government to trace its political opponent as well as terrorists and street criminals”.(Timothy, 2007).

Critics point to historic examples of government agencies using surveillance for political purposes. Even if the formal provisions of the legislation seem reasonable, they argue, policy makers must be wary of unchecked government access to people’s lives. For example, Rep. Barney Frank (D, Mass.) points to the “savage fight of defamation waged by J. Edgar Hoover as chief of the FBI against Dr. Martin Luther King” as indication of the need for strong restrictions on government surveillance. (Timothy, 2007) Indeed, critics argue, the many examples of misuses of authority makes limiting surveillance the only sensible policy. Eric Foner, a professor of history at Columbia University in New York City, writes: “No one objects to more stringent security at airports. But current restrictions on the FBI and CIA limiting surveillance, wiretapping, infiltration of political groups at home and assassinations abroad do not arise from an irrational desire for liberty at the expense of security. They are the responses to real abuses of authority, which should not be forgotten in the zeal to sweep them aside as ‘handcuffs’ on law enforcement.” (Foner, 2001).

The risk of officials abusing their surveillance authority, critics continue, is increased by allowing information to flow freely between government officials. “As written, a criminal researcher could share with the White House staff information collected about foreign policy reviewer of the administration. The stipulation, at the very slightest, should be considerably curtailed,” says the Center for Democracy and Technology, an organization that opposes censorship and regulation of the Internet, in an analysis of the Justice Department’s proposals. (James, 2007) Furthermore, many civil libertarians argue that broaden the reach of surveillance authority in fact grants terrorists their ultimate victory the devastation of the U.S.’s idiosyncratic commitment to an open society. We can very well achieve ourselves what the terrorists couldn’t do on their own: wipe out the U.S. as we know it,” warns Lauren Weinstein, director of PRIVACY Forum, an online clearinghouse for the debate of privacy and technology. “Even if you don’t tear the Constitution up explicitly, we can do it one piece at a time.” (James, 2007).

A Fair and Deliberative Process Sought

In the wake of the Sept. 11 attacks, some policy makers have sought quick approval of stronger anti-terrorist measures. For example, immediately after the attacks, Ashcroft pushed for swift passage of changes to rules regarding federal law enforcement–initial legislation was approved by the Senate on the evening of the attacks, making it easier for the FBI to get warrants to monitor computer transmissions. (Jeffrey, 2001).

Supporters say that time is not a luxury that policy makers currently possess. “Each day that surpass is a day that terrorists have a lead,” says Ashcroft. “We are today sending our forces into the new field of battle with traditional weapons.” (Sanford, 2006) Yet some analysts warn that careful scrutiny and discussion of legislation is even more crucial during an emergency than under normal circumstances. Historically, government has tended to pursue abusive and discriminatory policies during moments of widespread fear or anger, they argue, citing examples like the Japanese-American internments during World War II.

Furthermore, some civil libertarians express concern that law enforcement officials are using the national alarm caused by the terrorist attacks to push through changes that they had long sought, but which had previously been dismissed as too dangerous. “The intelligence organizations have an extended list of effects they would like to be done,” said Morton H. Halperin, senior fellow at the Council on Foreign Relations, a foreign strategy think tank. “They’ve been waiting for an occurrence to give good motive for them.” (James, 2007).

Conclusion

Despite disagreement over specific policies, analysts say that it is likely that fairly substantial changes to law enforcement and antiterrorism will be enacted in the near future. The enormous national distress at the Sept. 11 attacks, and Bush’s assurance to make the war on terrorism the focus of his administration’s agenda, almost guarantee some sort of revamp of national security strategy, they say. Still, even with an unprecedented degree of bipartisan support for most of Bush’s measures, drastically rising surveillance authority and check over immigrants raises complicated issues. Many observers are preparing to resist moves that they claim overextend the government’s reach. In the short term, the discussion regarding the bill that Congress delivers to the president. Because consensus reigns on many provisions, analysts say, some version of the legislation favored by the Justice Department will likely become law. The issue, they say, is how the law will be weighing scale the need for larger security with protecting civil rights.

However, many observers say that the debate might continue even after the legislation is approved. The debate could be shaped by other administrative actions, collectively with military action, and by possible future attacks. In addition, they say, as often happens with legislation that raises civil rights concerns, it is possible that whatever antiterrorism legislation is enacted will be challenged in court, where its legitimacy will be determined. But in the current situation, analysts say, it is not clear if the courts would be willing to intervene, even on issues that would normally draw their attention. Many legal historians say that, in times of war or national emergency, the courts tend to defer to Congress. If history implies anything it proposes that the courts will permit the government to get away with a lot.

References

Elizabeth Price. (2006) Liberty for All: Reclaiming Individual Privacy in a New Era of Public Morality. Foley Yale University Press.

Foner, Eric. (2001) “The Most Patriotic Act.

James B. Rule. (2007) Privacy in Peril: How We are Sacrificing a Fundamental Right in Exchange for Security and Convenience. Oxford University Press, USA.

Jeffrey Rosen. (2001) The Unwanted Gaze: The Destruction of Privacy in America. Vintage Books.

Sanford Levinson. (2006) Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It). Oxford University Press, USA.

Timothy Harper (2007) The Complete Idiot’s Guide to the U.S. Constitution. Alpha Publishers.

William Martin. (2007) The Lost Constitution. Forge Books.

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IvyPanda. (2021) 'The U.S Constitution and National Security'. 28 October.

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IvyPanda. 2021. "The U.S Constitution and National Security." October 28, 2021. https://ivypanda.com/essays/the-us-constitution-and-national-security/.

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