The Patriot Act: Security vs. Civil Liberties - Research Paper Example

? The Patriot Act: security vs. civil liberties Introduction The USA Patriot Act was a sweeping piece of legislation that was enacted into law by Congress shortly after the terrorist attacks on the World Trade Center on September 11, 2001. This new law provided for increased powers of surveillance for law enforcement agencies in this country. I will examine different aspects of the Patriot Act, and weigh the value of increased security vs. civil liberties. History The Patriot Act was passed into law on October 26, 2001. Many of the electronic surveillance measures that were codified had been proposed prior to 9/11, and were the subject of debate (EPIC, 2011, p.6). After the tragedy of 9/11, a consensus in Congress was reached very quickly that new laws needed to be enacted in order to protect our country. Russ Feingold was the only Senator to oppose the act (EPIC, 2011, p.7). He was concerned with the potential scapegoating of immigrants of Middle Eastern descent. The Patriot Act added amendments to: the Wiretap Statute (Title 3), the Electronic Communications Privacy Act, Computer Fraud and Abuse Act, Pen Register and Trap and Trace Statute, Money Laundering Act and others (EPIC, 2011, p.7) Electronic Privacy Title 3 is subject to fourth amendment restrictions on search and seizure. However, the Patriot Act uses a 1977 US Supreme Court ruling that says there is “no constitutionally recognized privacy interest in the telephone numbers intercepted by a pen register or trap and trace device” (EPIC, 2011, p.9). A trap and trace device means caller ID. The language referred to the technology of 1977, which was constituted by land-lines and telephones. The wording in Section 216 of the Patriot Act redefines a pen register and a trap and trace device to include “the Internet,…e-mail,…and all other forms of electronic communications” (EPIC, 2011, p,10). In addition, the FBI uses a system called Carnivore, which gives this agency access to all communications of all “subscribers of a monitored Internet Service provider” (EPIC, 2011, p.10). This access is not restricted to a target of an FBI investigation ordered by a court. This power granted to government agencies to intercept and monitor e-communications provides for greater streamlining of information flow between these agencies. It also constitutes an invasion of privacy for citizens. Surveillance orders, “Sneak and Peek” The Patriot Act changed the rules for search warrants. Previously, a court could only order a wiretap or pen register/trap trace device within the geographic borders of its own jurisdiction. Now a court can order a surveillance device anywhere in the US. A service provider in a distant location will find it difficult to appear in court to discuss this issue. Sneak and Peek refers to this: before the Patriot Act, law enforcement needed to provide a suspect with notice, right then and there, that they were going to search the suspect’s home. Now, law enforcement can enter a suspect’s home and do a search without notifying him right away, if the court “finds reasonable cause…that notification of the warrant may have an adverse effect” (EPIC, 2011, p 14). This will help law enforcement, but goes against the 4th amendment of the Constitution, which prohibits unreasonable search and seizure (US Constitution). Preventing Surprise Attacks Posner studies the 9/11 report in his book Preventing Surprise Attacks. He concludes that the report blamed the attacks on “systematic failure of the nation’s intelligence and security apparatus” (2005, p 19). He posits that it is inevitable “that some surprise attacks may succeed”(Posner, 2005, p 19). He characterizes the Patriot Act as removing what he calls “artificial” blocks to the sharing of intelligence information between agencies (Posner, 2005, p 122). According to Posner, prior to the Patriot Act, the FBI was concerned about breaking the law when testifying before grand juries, and the CIA did not want secret information to be released in court proceedings (2005, p 32). The Patriot Act removed these concerns and streamlined communications between government agencies during terrorist investigations. Presidential Power in National Security Fisher’s article deals with the actions taken by President Bush following 9/11, and the similar actions of previous presidents: “If an emergency occurs and there is no opportunity for executive officers to seek legislative authority, the executive may take action--sometimes in the absence of law and sometimes against it--for the public good” (2009, p 348). However, in order to the president’s actions to be constitutional in such a case, he must acknowledge that his actions are not legal, explain the necessity of his actions to the legislative branch, and appeal to them to pass a bill to make the actions legal. Fisher cites Lincoln as needing the sanction of Congress to legalize his actions at the onset of the Civil War (2009, p348). President Bush made no such appeal. He indicts the executive branch under President Bush for “operating on the basis of secret executive orders” and states that there is no defensible reason for withholding legal reasoning (2009, p 356). Fisher also cites the abuse of “Authorizing what is Illegal”(2009,p357). After 9/11, the Bush administration violated the Foreign Intelligence Surveillance Act, which comes under the Patriot Act. The administration then justified this by saying that its Terrorist Surveillance Program was “authorized”, regularly “reauthorized” and was “legal”, using these terms to imply that they were obeying the law. Fisher’s analysis of the Bush administration asserts that, as acting president, Mr. Bush’s actions and policies repeatedly broke with Article 1 Section 8 of the Constitution , which delineates the powers of Congress. The power to declare war was the specific departure point under President Bush. It is my opinion that if President Bush was instrumental in enacting the Patriot Act, then his administration should have obeyed that law. Conclusion In the final analysis, the Patriot Act was both beneficial and problematic concerning the security and the civil liberties of our country. In terms of civil liberties, the act is problematic in terms of the following amendments under the bill of rights: Amendment One, freedom of expression, Amendment Four, search and seizure, Amendment Six, right to speedy trial, confrontation of witnesses, and Amendment Eight, cruel and unusual punishment.(US Constitution, p 12-14). The increased power of government agencies to monitor all electronic communications will need to be addressed by future presidents and lawmakers. President Bush’s actions in the wake of 9/11 perhaps served more to advance his and the executive branch’s power at the expense of the Constitution. This had implications in that the electorate eventually turned to a Democratic candidate. The Patriot Act served to streamline comminications between law enforcement agencies, giving our government more speed and effectiveness in searching for and prosecuting terrorists. The consideration of the Bill of Rights is needed, however. Overall, the tragedy of 9/11 made us as a nation more vigilant. We need to remain vigilant, both for international terrorism and for civil rights abuses at home. References: The Constitution of the United States. Web Site: http://www.usconstitution.net Fisher, L. (2009). Presidential power in national security: a guide to the president-elect. Presidential Studies Quarterly 39,(2), 347-362. GALE Document Number: A201943115 Posner, R. (2005). Preventing Surprise Attacks: intelligence reform in the wake of 9/11. Lanham: Rowman & Littlefield Publishers, Inc. USA Patriot Act. (2001). Retrieved from: Electronic Privacy Information Center. Web Site: http://epic.org/privacy/terrorism/usapatriot/default.html Read More