Legal Issues in Fight against Terror - Term Paper Example

Legal and Constitutional Issues in Fight against Terror s] Involvement of laws in recognition of various loopholes that terrorism continues to exploit in perpetrating destructive activities is critical in modern legal regimes. In view of the various legal and constitutional perspectives that terrorism issues continue to occupy, rapid changes in way of life, technology and legal authority to respond determine how countering terrorism progresses. In this discussion, the role of the Department of Homeland Security in countering terrorism as backed by various laws forms a brief introduction to the underlying issues. A background of origin of tense environment between America and the world of terrorism sharply identifies foreign variables in defining the current conditions in the country. The implementation gap on effective anti-terrorism policies identifies in detail the nature of evolving terror environment backed by technology and online computer usage to support the magnitude of current terror threats (Saskia, 2011). The nature of legislation and criminal justice system with respect to provisions of the constitution dominate the remaining sections of the discourse, with case laws illustrating the standoff to flawless war on terror. Two classical cases that defined the interaction between the fight against terror and legally supported government polices illustrate the apparent standoff. Finally, opinion is given on different issues touching on the overall global status of US effort in fighting terrorism. Legal and Constitutional Issues in Fight against Terror Introduction The Department of Homeland Security is a constitutional establishment that takes up the task of ensuring that the country wards off crime and potentially harmful actions, in accordance with the requirements of the constitution with regard to provision of protection by national government. The government deploys resources within its control for provision of a safe environment through the Department of Homeland Security. Internal threats precipitated by actions happening within the country or beyond the borders constitute the concerns of the Department at all times. It is increasingly impossible for America to remain safe, with the impact of foreign intrusions dwelling on the country than ever before. In view of the state of threats to national security, America devotes the largest fraction of its national budget to fund departments entrusted with ensuring that America is safe. If the country did not perceive such threats to be as serious, perhaps the proportion of budgetary allocation across the other departments would not show such a huge disparity. Role of Foreign Impact on Prevailing Conditions Aggression against America from certain locations in the Middle East, perhaps tracing back to the ties that America has with Israel continues to rise. Alternatively, America’s involvement in world affairs as a super power appears to take a misconstrued perception among these regions, amounting to a stern standoff between the two sides. Evolution of terrorism to take a global presence, with roots in these regions underscores the importance of a vigilant Department of Homeland Security, to counter potential harm emanating from tarnished American image (Buss and Mitchelle, 2008). The role of political interventions that America participates in troubled regions around the world takes as many enemies as friends, which does not improve chances of retaliatory attacks from the angered sides. As an illustration, the terrorism ideology spread by global and regional terror groups such as the Al-Qaeda, AL-Shabaab, and Taliban marks the point of reference for the aggression as America’s continued intervention in curbing their expansion agenda. In addition, the foreign policy for instance on Israel that most Arabs perceive as a perennial enemy justifies the branding of America as an automatic enemy. Due to the negatively politicized image of America in the Arab world, non-political participations of Americans in the Arab world takes a suspicious scrutiny even for activities such as business and tourism (SC Staff, 2010). Sympathizers of the extremism perspective on the US at home poses serious uncertainty on the amount of attention that the authorities can put in place to avoid reprisals within and without the country. The perceived need for high-level preparedness and vigilance to counter homeland security threats has prompted various interventions, which often find it difficult to silence critics of the due process model of crime control (Pangi, 2003). The due process of crime management as contained in the Sixth Amendment provides for observation of constitutionally protected civil rights in pursuing criminal elements as opposed to use of force either as deterrent signal or as a counter activity followed in crime control model. In terms of the constitutional values in America, it is difficult for the government to roll out stern actions against homeland security breaches without facing critical scrutiny and criticism from civil rights activism watch. Terrorism Evolution Making Law Obsolete Over the past decade, the government has had to come to terms with terror acts on American soil and across the world where American interests abroad face frequent related attacks. On September 11 2001, terrorists blew up buildings in New York making a statement on the level of threats that America and her allies face. Homeland security improvement against a backdrop of anticipated heightened tension with terrorism has had to come to terms of emerging tricks such as technology to counter occurrence of terror attacks inside America. Tremendous steps taken immediately to revolutionize national security have demonstrated the level of success that authorities can achieve with cooperation across sectarian standings. Constant changes in threats posed however render previously applicable laws obsolete in dealing firmly with terrorism. In terms of the magnitude of threats posed to Americans and American interests abroad, which directly affect the status of national security various steps such as pursuing of terrorists from outside American borders, paint the seriousness of terrorism. American embassies in strategic ally relations in Asia and Africa have witnessed growing hostility that poses threats to America’s national security (DHS, 2007). Emerging terrorism flanked by innovations witnessed in the usage of internet and information sharing exposes threats of terrorism to a wider population today than it did before (Orin, 2003). Despite the presence of concerted efforts by the international community to provide a safe online platform for various socioeconomic and political usage of technology, terrorism continues to pose a threat to the global citizenry. Laws have identified cyber-attacks in perpetration of high-tech crimes, which include terrorism. Cyber-attacks fall under three categories namely, unauthorized intrusion, destructive worms as well as viruses, and denial of service related threats. Unauthorized intrusion entails use of illegal means to access through hacking or cracking of another person’s computer (Wible, 2003). Destructive worms and viruses distribute across various sharing platforms upon which they disrupt the integrity of the computer system by destruction and impairment. Denial of service entails use of deliberate applications that overload computer systems leading to failure that cuts off communication and usage. With increased usage of computer systems and internet connectivity to share resources among end users, infringement on various personal and national security aspects poses the most disturbing computer related threat to the modern community (Saskia, 2011).. Cases of economic crimes taking place on the internet prove the sensitivity that global business must approach online based transactions to shield themselves against losses. Most importantly, cyber-attacks infringing on national and international efforts to offer security to the national and global citizenry provide newer and trickier ways of propagating terror threats. In a world experiencing dangers of organized crime and terrorism, advancements in technology not only provide a mechanism to catch up with criminals but also enable criminals to learn new tricks. In terms of the preparedness that the authorities need to embrace to mitigate and control use of computer technologies in crimes, a strong legal backing must encompass the realities of the cyber-attacks. Efforts of network and systems forensics to reduce cyber malpractices must find compatibility application environment in the nature of legislation and criminal justice systems around the world. However, internet usage and authorities control present a debate of freedom of expression in a free media setting backed fully by democratic principles of privacy and civil rights make it difficult for an efficient watch on criminal irregularities. The challenging implementation setting of powerful legislation tackling terrorism in the US and in many other jurisdictions for instance shows the magnitude of the task for cyber safety legislation to the concerned authorities. As an illustration, laws allowing peering into private conversations on the internet to discover criminal intentions continue to raise a standoff between the government and civil rights activism groups, citing legitimate provisions of the constitution guaranteeing due process and privacy. Legislation Various legislations targeting the control and management of threats facing the nation in form of terrorism exist, with an indication that the US orientation to threats stretches back to before the September 11 attacks. Some of the federal legislations and laws targeting terrorism include, a) Biological Weapons Anti-Terrorism Act of 1989, b) Executive Order 12947 of 1995, c) US Anti-Terrorism and Effective Death Penalty Act of 1996, d) Executive Order 13224 of 2001, e) USA PATRIOT Act of 2001 (amended 2006), (Eddlem, 2011) f) Homeland Security Act of 2002, SAFETY Act of 2002, g) Domestic security Enhancement Act of 2003, h) Border Protection, Anti-terrorism, and Illegal Immigration control Act of 2005, i) REAL ID Act of 2005, j) Military Commissions Act of 2006, among many others. Most of these laws attempted to enable the government to act firmly against suspects of terrorism and breach of homeland security in a manner strengthening constitutional mandate of the government to act as such. This implies that the government would obtain extended powers to deal with reported breaches of national security by relaxing certain constitutional rights that block such firm actions from the government. In terms of the seriousness that the federal government takes the threat of terrorism, cooperation between the legislature, the executive and largely the judiciary proves that times have changed in terms of America’s security. As illustrated in the case laws below, the contestation of the Congress authority granted to the executive in dealing firmly with terrorism cases does not amount to questioning the authenticity of the power for the executive to act as such (Orin, 2003). However, the courts determine the appropriateness of the firm action against the background of circumstances of different cases. To back up this argument, the various courts’ decisions in original and appellate jurisdiction on the matters witnessed in the two cases demonstrate acceptance of the form action and different circumstances interpretation. This sums up the observation that American authorities have risen to the realities of terrorism that continues to pose serious security threats to Americans and American interests. Similar laws across major jurisdictions continue to support such moves, in order to make it difficult for terrorism ideology and terror groups thriving at any part of the world. Such a harmonization drive has taken huge advocacy from the US authorities abroad, in order to facilitate a concerted effort by the international community in dealing with the vice at the international level (Banks, 2004). Policing reforms targeted at improving the quality of anti-terrorism efforts inside the country against other homeland security policies continue to take place in the US. Apart from specialized training for police and security officials, improvement of technology to counter newer and hi-tech quality attacks have taken place constantly to keep up with the pace of crime. In order to coordinate the functionality of police across the borders with regard to tracking of terror elements across the world, Interpol continues to offer a tight network from where information sharing supports anti-terror duties. Use of technology in the police management of crime proves an important point in control of terrorism. As an illustration, monitoring communication at crime sites in homeland security regarding response components must always support systems impenetrable by alterations. Criminal Justice System and Illustrative Case Law Criminal justice system preparedness in handling the challenging cases brought before court for determination in terms of homeland security hangs on the balance between government forceful efforts against civil rights force (Pangi, 2003). America’s judiciary has witnessed all manner of cases brought before it for determination with regard to forceful application of government tools to counter terrorism and government’s mandate to offer quality security to all Americans. As an illustration, two historic cases that proceeded up to the Supreme Court level attracting the attention of government and civil rights movement demonstrate the thin line in lawful and lawless efforts that can engulf efforts to curb terrorism. Firstly, Padilla an American operative serving in the military, was in Pakistan by the time September 11 attacks occurred and intelligence reports classified him as a material witness. Upon his return from Pakistan, he was incarcerated and material witness tag dropped and subsequent replacement with enemy combatant tag. This implied that legal procedures provided for in the Constitution would not assist the defendant in exonerating himself, since the President had such powers as donated by the Authorization of Use of Military Force Act. Padilla’s predicaments implied that despite his participation in serving the military, breaching of American security amounted to a serious crime, including assisting the enemy to conduct terror attacks in America. Questions of the treatment of his witness status as composed by his attorney assisted in initiating proceedings seeking court’s interpretation of the rights of his client under the circumstances of case. Different courts heard the matter, starting from the District Court for the Southern District of New York ending in the Supreme Court. In Padilla v. Rumsfeld, the defendant took the secretary of State to court for abuse of his civil rights, whereas the government was busy implementing the Authorization of the Use of Military Force Act (Baird, Darmer and Rosenbaum, 2004). Following a series of appeals and courts’ departure from their own rulings as well as revival of certain rulings, the Supreme Court found out that the government acted accordingly in use of force as mandated by the Authorization of Use of Military Force. However, the Supreme Court took issue with the application procedures that the defendant used in the processing of certain appeal requests. Such technicality issues did not imply that the appellant had as much freedom since the civil authority could determine the liability borne by the appellant, at a serious level of crimes witnessed during the terror attacks on September 11. Interestingly, the court ordered for the transfer of the mandate of the government in using military procedures to a civilian authority that would respond to issues at hand without contradiction. Apparently, the Authorization of Use of Military Force Act enables the government to treat high-risk terror suspects as enemies in a battlefront, where military action against high-level national security matters works (Siegel, 2008). The court’s ruling underscores the observation that the use of military force as enabled by the Act cannot proceed as if civil rights provide inferior provisions when compared to right to protection by national government. In the constitutional interpretations followed by the courts and the civil rights movements, every right that a citizen enjoys by virtual of definition by the constitution cannot exclude any other right. This concept manifests in the Supreme Court’s decision to rule that the civil authorities mandate take over the defendant’s case from military proceedings. However, the court does not contradict government’s efforts in controlling hardcore criminals posing terror threats to Americans, by acknowledging the executive’s power to declare such individuals as enemy combatants. Secondly, Hamdi was in Saudi Arabia as an American volunteer for a charity project, but during the September 11 attacks, his presence in Afghanistan led to investigations, with intelligence indicating that he qualified for enemy combatant classification. His arrest and subsequent transfer into naval maximum-security facility in Virginia under the enemy combatant classification implied suspension of ordinary legal procedures in seeking justice. The federal government relied on the Authorization for the Use of Military Force Act to deny the defendant civil rights due to the magnitude of his crime to breach of national security. Procedures for involvement of the judicial system began when his father sought the assistance of the District Court for the Eastern District of Virginia applying for corpus habeas (Baird, Darmer and Rosenbaum, 2004). In Hamdi v. Rumsfeld, the defendant argued that the government violated constitutional provisions of due process in treatment of American citizens, even under the Authorization for the Use of Military Force Act. A series of rulings between lower and higher courts ended in the Supreme Court whose ruling found that the executive had violated constitutional rights of the appellant. The enforcement of the Authorization for the Use of Military Force did not include American citizens, where the appellant demonstrated that his birthplace in Louisiana acted in his favor. Interestingly, the Supreme Court recognized the provisions of the Act in mandating the executive to use such force as would justify countering terror activities. Interpretations with the due process provisions in the Constitution implied that the incarceration of the appellant infringed on civil liberties guaranteed and provided for to all Americans (Schmalleger, 2011). As illustrated in these two cases, several areas of contention provide serious legal challenges to the implementation of a legal regime completely above all threats. Invocation of civil rights to counter government’s use of force in curbing crimes and terrorist activities prove to be a controversial area that may hinder effective implementation of anti-terror laws in the courts. Several other cases involving challenge of various legislations and anti-terror policies in the US illustrate the balance of civil ideologies in controlling government power, which could easily lead to abuse of constitutional culture if uncontrolled. Thankfully, the presence of the active judiciary that is alive to the challenges facing government mandate as well as the civil rights proves to justify the orderliness when compared to other world jurisdictions (Siegel, 2008). Opinion: Future of Fight against Terrorism Enhancement of foreign policy must form the first realignment of America’s interaction with legal obstacles facing the courts and authorities in fighting terrorism (Picarelli, 2009). Apparently, the root course of terrorism faced by the US and allies in the world today arise from a form of aggression precipitated by foreign policies. Whereas the role of America as a super power in bringing stability in the world corresponds with the protection of overseas interests, taking a partisan position on local factions instead of facilitating their reconciliation may offer problems into the future. Communities evolve through various stages and violent episodes across various locations may not necessarily demand violent approach with a partisan component. As a classical illustration, the intervention of the US recently in Libya led to toppling of the government through open support to the rebels. Currently, supporters of the ousted regime hold grudges against the current government and in a violent way than it was during the previous regime. Perhaps investing heavily in pushing peaceful compromise would have paid off and maybe, the lives of the American embassy staff would not perish. Appropriate legislation must continue to bridge the gap between the use of force and civil rights. Improving policing function in countering terrorism would require better cooperation among the citizens who suffer most in attacks. Raising police effectiveness through provision of necessary tools and information must formulate the new policing environment of increased terror activities. Facilitation of terror fighting efforts through up-to-date technology could also offer the much-needed realignment of police service with changing demands. Currently, the best-paid innovators belong to commercial sector, which appreciates and rewards their efforts (Mills, 2008). Replication of similar commitment and talent dedication into the improvement of national security implies that the success witnessed in the commercial industry would certainly appear in the fight against terror. Funding aspects of terror fighting efforts and projects will continue to find it hard to meet the demands of the security environment due to challenges in budgetary allocations. Leaving security functions to the government alone will perhaps continue to affect the efficiency of the fight. Improvements to this end would imply that the best possible cooperation between private and public sectors in funding and innovation could offer relevant models for anti-terrorist efforts. References Akdeniz, Y. (1996) “Section 3 of the Computer Misuse Act 1990: An Antidote for Computer Viruses!” Journal of Current Legal Issues, Y. Web (24 May 1996) Baird, M. R., Darmer, B. K., & Rosenbaum, E. S. (2004). Civil liberties vs. National security in a post 9/11 world (contemporary issues). New York, NY: Prometheus Books Banks, C. (2004). Criminal justice ethics: theory and practice, Thousand Oaks, CA: SAGE Publications Inc. Buss, M. H., & Mitchelle, J. (2008). Taking Sides: Clashing Views in World History, vol. 2: The Modern Era to the Present. Burr Ridge, IL: McGraw-Hill Higher Education DHS. (2007). “Report of the Future of Terrorism Task Force,” Retrieved from http://www.dhs.gov/xlibrary/assets/hsac-future-terrorism-010107.pdf Eddlem, T. R. (2011). “Anti-Fourth Amendment Patriot Act: Congress is Considering Extending Three Provisions of the USA Patriot Act, But they would Do Better to Repeal the Whole Unconstitutional Law,” Retrieved from http://findarticles.com/p/articles/mi_m0JZS/is_8_27/ai_n57439812/pg_2/?tag=content;col1 Mills, E., (2008). “Energy Industry at Risk of Cyberattack, Survey Says.” Retrieved from: http://news.cnet.com/8301-1009_3-10094382-83.html on 17th Nov 2010. Orin K., (2003). “Cybercrime’s Scope: Interpreting Access and Authorization in Computer Misuse Statutes.” New York University Law Review, 1596:1602-1607 Pangi, R. L. (2003). Countering terrorism: Dimensions of preparedness. Cambridge, MA: MIT Press. Picarelli, T. J. (2009). “The Future of Terrorism,” NIJ Journal, 1:264 Saskia, H. 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