The Constitution of the US, Issues of Homeland Security, and the Global War on Terror - Essay Example

Legal Process Project This paper explores and examines the Constitution of the United s, issues of homeland security, the global war on terror, and both foreign and domestic policy issues currently facing the country. It will also discuss major and recent events in homeland security. Such events that will be discussed include 9/11 and the events leading up to that tragic day. Other issues to be addressed in this paper revolve around a hypothetical and fictitious event involving legal counsel to a non-governmental militant group. Legal Process Project Task One: Analysis of the Constitution The Constitution of the United States is living document rich with certain rights and freedoms that have greatly contributed to the success of the democratic system. The most important of these institutional rights is the power given to society to enforce laws and the ability to ensure that those same laws are faithfully executed. These powers are including under Section 3 Article II of the Constitution and gives sweeping authority to the President. With this important institutional power, laws enacted by Congress cannot take effect. In addition, in order to carry out the execution of laws, the President oversees the executive branch of the government and can “direct and control United States officers in their duties” (Cunningham v. Neagle, 1890). Within the limits of the Constitutions and various other permanent statutes, the President also has the duty to recommend conditions governing executive agencies in the choosing of employees and also to direct the Attorney General to inform them of the same (International Workers Order v. McGrath, 1950). Aside from this, the President also serves as the individual responsible for enforcing the peace of the country (American Civil Liberties Union V. Westmoreland, 1971). The duties carried out by the President that are specifically designed to enforce existing laws are considered “executive and political”, and cannot be held up by the judicial process (State of Mississippi v. Johnson, 1981). With such important institutional power, the President not only supervises the executive branch of the federal government, but he or she also oversees its activities in light of national affairs (Infousa, p. 1). Personal rights granted to the citizenry are also one of the cornerstones of American democracy. Perhaps the strongest of these granted rights is that granted under the Fifth Amendment. This part of the Constitution, known as the Bill of Rights, stipulates that no person shall be deprived of life, liberty, or property, without having access to a due process of law. This effectively sets a limit on the amount powers that the government has over the individual (Allbright, 1993, p. 20). The Due Process Clause of the Fifth Amendment guarantees that every person has equal protection under the law. Specifically, it states that “all person similarly situation should be treated alike” (International Science & Technology Institute v. Inacom Communications, Inc., 1997). This important right invokes the ‘rule of law’ concept as well as the Constitutional “guarantee of equal protection’ and requires the government to be impartial to those seeking its assistance (Romer v. Evans, 1996). The Due Process Clause also gives deference to the rest of the Constitution by not only requiring the executive branch to abstain from divesting the public of their public of their liberty without permission, but also mandating that Congress not grant such authorization or permission except under “a law that respects all of the right enshrined in the Constitution” (Hyman, 2013, p. 239). For these reasons, rights granted under the Fifth Amendment different from those in other sections of the document, giving a limitation to the government in its exercise of power. An institutional power that should be considered for elimination is the Migration or Importation Clause contained in Section 9, Article I of the Constitution. This section provides that, “The migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.” This effective prevents Congress from forbidding the “Importation of slaves into any of the original states”, which were inclined to accept them for a period of time until 1808 (U.S. Const. Art I, cl. 1). By the time this period of time elapsed, most states had already enacted laws forbidding such importation of slaves (Du Bois, 1896, pp. 71-74). As a result, this institutional power has been made obsolete since Amendment XIII Section 1 prohibits the institution of slavery. Another right that also be removed is the one situated under Amendment III. This section stipulates “No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.” This constitutional provision is actually outdated as it was intended to counter the British military practice of “quartering soldiers” in the homes of the Colonists (U.S. Senate, p. 1). As commented in one case, the constitutional right to privacy is now broad enough to include the Third Amendment (Griswold V. Connecticut, as cited in Dugan, 2009, p. 555). One further power that could prove to be effective and beneficial for the country as a whole is to grant Congress the power to promote full respect for human rights and laws concerning environmental protection. This additional power should prove to be upheld by various international conventions and treaties to which the United States of America is a signatory. Being a part of the international community, Congress should work to bring America more into compliance with such objectives. On the other hand, the additional right that must be considered is the right of the people to possess information on matters of public concern, subject to limitations that may be provided by law. This information, which includes official acts and decisions made or transactions conducted as a basis for government policy, should be afforded to the public in order that they may participate in and be knowledgeable of the actions of their government. The Constitution, we must remember, is designed to create a government by the people and for the people. Task Two: Examples of Homeland Security Issues in Popular Culture Art has long symbolized the feelings and emotions of an individual, society and, indeed, a nation. The events of 9/11 affected not only Americans, but also the hearts and minds of humanity. From country to country, there were numerous expressions of emotion and outrage, as well as sympathy toward the thousands that lost their lives and the millions that lost their sense of safety and security. One of the outpourings that arose out of this tragic terrorist event were painted murals in locations around the global. These expressions of concern and compassion demonstrate how modern art can be used as an expression towards some global or cultural event. The Internet site graffit.org portrays many such murals and the expressions of unity that followed. The interesting aspect of these expressive pieces of art is how accurate they represent the security concerns of America moving forward. Consider the mural by a group from Johannesburg, South Africa (www.graffiti.org). Here we see the destroyed landscape of NYC with smattering of terrorist still surviving and looking quite big in the scheme of things. American security is increasingly concerned with terrorist groups that are becoming too big and powerful. The mural accurately depicts America rising from the ashes and striving to become bigger than such organizations. To do this, laws must be drafted that dramatically alter, in many cases, the civil liberties that Americans have counted on for centuries. In order to combat terrorist, they must be struck down at the core. In order to do that, as these murals represent in graphic form, government authorities must be permitted to become bigger and more powerful than their terrorist counterparts. Part of combating terrorism involved being united. A common theme express in popular culture today is “United We Stand”. In order to rise up against evil, as the mural by a group in New York City (www.graffiti.org) portrays, Americans, and the world, need to be united in the fight. This mural actually shows a giant of a man holding an American flag, surrounding by the slogan “United We Stand”. Americans after 9/11 were ready to take the fight to the terrorists. This did not necessarily mean through force, but rather the focus was on community. Building stronger communities, such as those represented in murals from China to South Africa and back to America, show us the power of the populace. If people come together and are united against terrorists, then evil can begin to be fought against. I found these collections of murals to be most interesting in their depiction of modern culture and its stance against terrorist actions and its promotion of community. Art is not the only form of modern day artistic expression. Many turn to poetic language to express their feelings after traumatic life events. Few events can be more tragic to both the individual and the collective community than a terrorist event. Such events are not only tragic, but they also provide the country and the world with an opportunity to reflect on the state of society and where we are heading as a populace. Laws are examined, new ones created, and existing ones strengthened – all in the name of security. The site www.poetry.about.com contains some great examples of poetry that arose out of the events of 9/11. I find one of the most powerful examples of such poetic expression to be the poem “In the Wake of America” by Tony Beyer. In this poem, Beyer expression his dismay over the vents of that day be recounting the various events from his perspective. He speaks about how he found out the troubling news and how it dramatically impacted his life, and those of others around him, forever. Through poetic verse, he talks about enemies in the office began hugging and comforting each other. Words were softer and more gentler in the weeks after the event. In short, society seemed to regain a sense of decency that had been lost prior to the event. This was the spirit of America. The government portrayed a sense that we would go after the terrorists and strike them down where they are. People, however, began expressing concern for one another on a grander scale. It was a grass roots effort to begin living decent lives once again – looking out for each other and identifying those who would strive to do harm. Beyer effectively summed up the spirit of the nation, and much of the world, through his poetry. These are just two of the myriad of examples of homeland security issues as expressed in modern day and popular culture. While terrorist events have been occurring for centuries, with the advent of the Internet and other popular media sources, the populace is no longer relegated to the sidelines in this battle. It is important that people have a voice, and today’s culture gives us that. From painting a mural to publishing a poem, people are now able to express their feelings and dismay over what is happening in our world. The murals that were painted more than a decade ago, for example, stand today as reminder that evil can strike at any time. It is up to society to guard against that, to strive to do good, and to push out those who try to harm. The issues reflected in this paper overall express the emotions felt in popular culture today. We cherish our liberties, yet we expect the government to protect us. The same rights and liberties afforded to Americans, however, are the same ones that protect the terrorists. These murals and poems express feelings that cannot be discounted. Moving forward, we will need to learn to temper our need for freedom with the reality that some freedoms might need to be compromised for the sake of security. Task Three: Identification of pre-9/11 Security Event The U.S. Commission on National Security of the 21st Century was created in July, 1998. The group is commonly referred to as the Hart-Rudman Commission. The Commission released its first report back in September of 1999. The findings contained in that report were later said to prophetic in scope. The report contained “warnings of America’s increasing vulnerability to attacks on the homeland, as well as the emergence of a radically different security environment” (Homeland Security and Defense Business Council, 2011, p. 1). Seven months before the attacks of September 11, 2001 occurred, the commission released its concluding report and mainly recommended “the creation of a new independent National Homeland Security Agency with responsibility for planning, coordinating, and integrating various government activities involved in homeland security (Homeland Security and Defense Business Council, 2011, p. 1). Legislation designed to implemented various recommendations of the Commission were presented to Congress, but it was determined at the time that no impetus existed to allow a legislative body to critically consider the recommendations and enacts laws based on the report (Homeland Security and Defense Business Council, 2011, p. 1). Sadly, six months later, nearly 3,000 innocent people in America were killed by terrorists, thereby re-opening debate about the very issues presented to Congress previously (Homeland Security and Defense Business Council, 2011, p. 1). The U.S. Navy destroyer Cole was attacked on October 12, 2000 by a small boat loaded with explosives. This attack occurred while the destroyer was in port in the harbor of Aden, Yemen for a brief refueling (Perl, 2001, p. 1). Seventeen crewmembers were killed and thirty-39 others were wounded as a result of what was later labeled as a suicide terrorist attack. As a result of the incident, the ship was left in a seriously damaged condition (Perl, 2001, p. 1). The pieces of evidence gathered after the incident suggested a possible connection to a terrorist network under the command of Osama bin Laden and carried out by Islamic militants (Perl, 2001, p. 1). The FBI, Department of Defense, and the navy conduced numerous investigations to establish culpability for such an attack and to revisit security protocols that allowed the attack to happen in the first place (Perl, 2001, p. 1). A Department of Defense special panel completed a review of the incident on January 9, 2001 and issued a report avoiding blame, but establishing important inadequacies in the “training and intelligence” to secure the ship against terrorist attacks (Perl, 2001, p. 1). On January 23, 1001, then Senate Armed Services Committee Chairman John Warner announced his intention to conduct an external investigation of the incident as well (Perl, 2001, p. 1). This particular terrorist attach raised significant issues including “(1) procedure used the Cole and other U.S. forces overseas to protect against terrorist attacks; (2) intelligence collection, analysis, and dissemination of data as it relates to potential terrorist attacks; and (3) U.S. anti-terrorism policy and how the U.S. should respond to this attack” (Perl, 2001, p. 1). Questions related to “intelligence collection, analysis, and dissemination” and especially U.S. anti-terrorism policies as a whole were raised (Perl, 2001, p. 1). Concerns surrounding the FBI’s role “in overseas counter-terrorism invesetigations” and the appropriateness of being on the front line in the “overseas investigations of terrorist attacks” were also drawn up. These two significant events/threats are similar to the homeland security events that raise major concerns on the U.S. policy on anti-terrorism. It has served to raise the awareness of not taking important intelligence and commission reports for granted. Various agencies and organizations tasked with the security of national defense interests must begin to take more of an interest in such reports moving forward. Task Four: Legal Counsel Exercise In this situation, President Obama is permitted to order a military attack against the Scorpions as he “has the power to recognize the existence of a state of war” (Matthews v. McStea, 1875). In addition to this power, if war is caused by the “invasion of a foreign nation,” the President would not only be authorized to act, but his is actually obligated to resist such actions by force. Also, “he is bound to accept the challenge without waiting for special legislative authority” (The Amy Warwick case, 1862). Being designated as the Commander in Chief, the President of the United States is empowered to instruct military forces to be moved and placed under his command, and he is permitted to engage their services in any way he deems most effective at “harassing, conquering and overcoming the enemy” (Fleming v. Page, 1850). Although Congress is the governing body that has the power to declare war under Article I clause 11 of the Constitution (Holtzman v. Schlesinger, 1973), there are occasions where they can be bypassed in the interim. This can occur if the “United States Armed Forces is equipped for combat already and located in a foreign nation, the President must then submit to the Speaker of the House of Representatives and to the President Pro Tempore of the Senate within 48 hours a written report stating the circumstances requiring the use of military introduction, the constitutional and legislative basis/authority for such action, and the approximate scope and period of such hostilities or involvement (50 U.S.C.A. 1543(a)). The President is required within sixty calendar days after the report has been submitted or required to be submitted, whichever is earlier, to conclude the United States Armed Forces are necessary unless (1) there is a declaration of war by Congress or they have “enacted a specific authorization for such use of force,” (2) the sixty-day period has been extended by law, or (3) the President is physically unable to meet as a result of an armed attack upon the United States (50 U.S.C.A. 1544(b)). To further illustrate this point, under the Authorization for Use of Military Force Act, “The President can act anywhere he determines the enemy to be – to include the continental United States – thereby imposing no geographic limitations on the use of force” (Geltzer, 2011, p. 94). The Obama Administration is currently utilizing the spirit and intent of this Act (Hollywood, 2013, p. 8). Furthermore, the Obama Administration banks upon the “inflexible notion of what constitutes an ‘imminent’ attack,” wherein America has consistently been held in accordance with customary international law that “a state may employ force in self-defense if, in addition to being attacked, an armed attack is determined to be imminent” (Bovarnick, 2011, p. 40). Applying this rationale, it has been held that “a state is not required to absorb the ‘first hit’ before it can resort to the use of force in self-defense to repel an imminent attack” (Bovarnick, 2011, p. 40). Hence, given this scenario, the attack undertaken by the Scorpions may be considered as an imminent attack and thus President Obama may employ such force for the country’s self-defense. The transfer of detained prisoners from the United State to another country, such as Saudi Arabia, for questioning is most commonly referred to as Extraordinary Rendition. Current U.S. public policy allows such a practice, which started with the Bush Administration after the attack of September 11, 2001 (Murray, 2011, p. 15). The rationale for applying such a policy was “to remove terrorists from the streets and inhibit their ability to plan and execute terrorist operations” (Murray, 2011, p. 15). One argument against such a policy is that it “completely undermines greater U.S. foreign policy goals, is not in the spirit of U.S. and international law, and is linked directly with the torture of detainees” (Murray, 2011, p. 16). Subsequently, some feel that the practice violates the treaty obligations of the United States under Article III of the Convention against Torture and Other Cruel, Inhumane, or Degrading Treatment or Punishment. That Article clearly states “no State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture” (Human Rights Web, n.d., p. 1). Nevertheless, such policy may still be considered lawful in the United States has taken steps to ensure that the place where the detainee shall be transferred will not subject the latter to torture. Otherwise, if America has prior knowledge of such practices of torture and yet still transferred the detainee to such a place, then the practice must be rendered unlawful. Detained soldiers currently have access to the federal court system. Previously, under the Bush Administration, those soldiers or prisoners who were detained for a reason such as that presented in this scenario were considered to be enemy combatants. As such, the Administration determined that they were not entitled to certain protections granted under the Geneva Convention (Jurist, 2013, p. 1). As a result of this, they were tried as war criminals under various military commissions (Jurist, 2013, p. 1). This practice, however, was challenged by the detainees as they questioned their status as ‘enemy combatants’ and contended that the “military commissions lacked jurisdiction,” and that this fact alone violated the Geneva Convention (Jurist, 2013, p. 1). Commission Order No. 1 was subsequently revised and commission procedures redefined around August of 2005. After this time, Congress enacted the Detainee Treatment Act of 2005. This imposed “jurisdictional limitations on the federal courts” in examining military commissions (Jurist, 2013,p. 1). The U.S. Supreme Court, however, struck down such commissions in 2006 via the case Hamdan v. Rusmfeld. This decision stated that the government did not have the authority to establish commissions and that they failed to justify the deviation from the rules of a court-martial. Furthermore, they failed to observe Article 3 of the Geneva Convention (Jurist, 2013, p. 1). Furthermore, this particular Supreme Court ruling allowed the ‘Guantanamo Bay prisoners’ to dispute their detention before the U.S. federal court system (Lebrer, n.d., p. 2). A recent ruling in Federal Court by Judge Chief Judge Royce Lamberth stated that “previous rules established by the U.S. District Court in Washington four years ago were working well and would continue to govern lawyers’ access to Guantanamo prisoners” and that “In the case of Guantanamo detainees, access to the courts means nothing without access to counsel” (Sutton, 2012, p. 1). Hence, such detainees must be given access to the federal court system. A military tribunal or commission, as opposed to a regular civilian criminal court, sees military officers acting as both judge and jury (Constitutional Rights Foundation, n. d., p. 1). Guilt is decided after a hearing is completed and “by a vote of the commissioners” (Constitutional Rights Foundation, n. d., p. 1). As opposed to a trial by jury, a decision in this case need not be unanimous (Constitutional Rights Foundation, n.d., p. 1). “The first recorded use of military commissions” was during the Mexican-American War in 1847 (Wintrhop, 1920, p. 832). At that time, the increasing “acts of lawlessness committed by the indigenous population” of Mexicans disturbed General Winfield Scott “who [found that they] could not be tried under the Articles of War”. Without any other available tribunal, General Scott then “established a military commission to try offenses against the law of war” (Winthrop, 1920, p. 832). Military commissions were also used broadly during the Civil War (Ex Parte Milligan, 1866). The Obama Administration currently continues to use military commissions reasoning that they serve to protect “sensitive sources and methods for intelligence gathering”, guard the “safety and security of participants,” and allow for the gathering of evidence from the field that may not “be effectively presented in federal courts” (Goldsmith, 2012, p. 1). According to various new reports, the National Security Agency (NSA) spies on every U.S. citizen without the need for a warrant. According the NSA whistleblower William Binney, there is a top-secret surveillance program unknown to the public that “can track electronic activities – phone calls, emails, banking and travel records, and social media – and map them to collect ‘all the attributes that any individual has’ in every type of activity and build a profile based on that data” (Kelley, 2012, p. 1). The objective of such a program is “to monitor what people are doing and who they are doing it with” (Kelley, 2012, p. 1). Since this program is, in itself, perceived to be an intrusion to the right to privacy of any American citizen, military participation in this program would be inappropriate. If the United States is going to attack the Scorpions, as discussed previously, they can also employ force in self-defense when there is a determination that an armed attack is imminent. They can do this without waiting for the Scorpions to attack first (Bovarnick, 2011, p. 40). The Constitution provides structure by creating a federal system of government that is given particular power not “reserved to the states” (Encyclopedia Britannica, n.d., p. 1). The system provides for the three branches, consisting of the executive, legislative, and judicial along with their respective functions, and it mandates a separation of powers and checks and balances. This serves to ensure that no branch of the government can be subordinated to the other branches (Encyclopedia Britannica, n.d., p. 1). Our system of government also clearly outlines a set procedure about how to amend the Constitution. Finally, it contains the Bill of Rights, which serves as a limitation to the powers of the government with respect to individual freedoms. It is my opinion that the most powerful branch of the government is the executive. Since the event of 9/11, there have been activities specifically pertaining to war powers and anti-terrorism that were decided and implemented mainly by the executive branch of the government. This was done largely without the permission of Congress. The so-called War on Terror has brought about U.S. military action in other parts of the world without first seeking the approval of Congress or waiting for a Declaration of War to be issued. Activities, such as spying on its own citizens, have also been conducted without any legislative support or judicial action that would stop such programs from being implemented due to privacy concerns. Such incidents only point to how powerful the executive branch of the government has become, bypassing the very checks and balances that each branch of the government was designed to uphold. Task Five: Statute Draft AN ACT To further protect and guard against potential terrorist acts in the United States and around the world, and to provide law enforcement with additional resources to combat cyber terrorism, and for other purposes of national security. Be it enacted by the Senate and House of Representative of the United States of American in Congress assembled, SECTION 1. SHORT TITLE AND TABLE OF CONTENTS (a) SHORT TITLE – This Act may be referred to as the “Protecting and Maintaining the Virtual Security of America by Creating New Policies for the Governance of the Internet Act of 2013.” TITLE I – ENHANCING CYBER SECURITY AGAINST TERRORISM SEC. 101. CYBER SECURITY TASK FORCE (a) ESTABLISHMENT – The Department of Homeland Security is authorized to establish a separate division aimed at the creating of a cyber security task force. This force shall remain in effect indefinitely as the threat from the Internet is perceived to be long lasting – (1) to require that all Internet users in the United States be registered users with personal information on file (2) to require that all wireless Internet networks be password protection with an adequate level of encryption in order to guard against unauthorized use (A) establishes the authority of the task force to detain for questioning any individual who is using Internet services without first registering with the proper authorities (B) providing support to relevant local authorities in the capture of any individual suspected of sending unlawful messages via the Internet (C) establishes the authority to restrict access to any Internet site which is deemed to be a threat to the national security of the United States (D) mandates the censorship of any site known to support terrorism or terrorism related activities (E) allows for the censorship of any information deemed not necessary for the general populace SEC. 101. CRIMINALIZATION OF CERTAIN INTERNET RELATED ACTIVITIES AND PRACTICES (a) FINDINGS – Congress makes the following findings (1) Moving forward, the Internet poses a grave national security threat to the United States of America (2) The Internet must be secured to guard against the unlawful or harmful dissemination of information to individuals who seek to do harm to the country (3) Cyber visitors from outside, as well as inside, the country must be checked and the information they share be checked against known terrorist threats (4) Federal and local authorities must be able to track Internet users in the even of unlawful or improper use of the service (5) Wireless networks must be secured in order to better track which individuals are using any given device (6) The law must be designed to equally guard against terrorism, both domestic and foreign (b) SENSE OF CONGRESS – It is the sense of Congress that – (1) Certain civil liberties must be compromised in the interest of national security. 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