Civil Liberties, Emergency Powers, and the Patriot Act - Research Paper Example

Title: Civil Liberties, Emergency Powers, and the Patriot Act: An Analysis of the Patriot Act Title II Section 201 as it Relates to the Growth of the Surveillance State Abstract: This paper will seek to analyze and understand the levels to which the Patriot Act, specifically Title II Section 201, have positively or negatively affected the overall level of security that the United States has enjoyed in the wake of the attacks of September 11th. Additionally, the paper will focus on the pros and cons of the Patriot Act with respect to overall citizen privacy and legality. Lastly, the analysis will seek to lay out a case for the fact that the Patriot Act and the corresponding section in question should be terminated due to extremely low returns associated with its implementation. Title II Section 201 of the United State’s Patriot Act revolves around the central issue of surveillance and data collection by the US government on suspected terrorist entities (both domestic and external). As such, Title II Section 201 stipulates that the United States government will have purview over the following areas: “Section 201. Authority to Intercept Wire, Oral, and Electronic Communications Relating to Terrorism. Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510 et seq. Establishes a judicially supervised procedure under which law enforcement authorities may intercept wire, oral, or electronic communications. The procedure, however, is only available in connection with the investigations of specifically designated serious crimes. Section 201 adds several terrorism offenses to Title III’s list of designated offenses: Chemical weapons offenses, 18 U.S.C. 229; Use of weapons of mass destruction, 18 U.S.C. 2332a; Violent acts of terrorism transcending national borders, 18 U.S.C. 2332b; Financial transactions with countries which support terrorism, 18 U.S.C. 2332d; Material support of terrorists, 18 U.S.C. 2339A; and Material support of terrorist organizations, 18 U.S.C. 2339B” (Jaeger et al 2004) Such a broad and overarching legal and judicial framework served to fundamentally change the way that law enforcement entities and the judiciary dealt with issues related to granting warrants and understanding the right to privacy that had formerly existed. This action, more so than any other has served to exponentially expanding the role of the surveillance state. As such, this brief essay will seek to explain the changes that the expansion of law entailed within this particular section of the Patriot Act effected on the legal framework within the United States, the pros and cons of these changes, and the overall effectiveness that these changes have portended with relation to deterring terrorism. Through such an analysis, the author hopes to convey a needs based approach to the Patriot Act as a function of whether it is necessary for society to continue to renew many of its diverse provisions in order to maintain domestic security with relation to terrorism. Prior to the Patriot Act being instituted as a knee-jerk reaction to the events of September 11, the United States had enjoyed a relatively liberal interpretation of the law with respect to privacy, level of surveillance, and the immediacy of the threat of warrantless wire taps and surveillance by law enforcement entities. However, once the changes put forward by the Patriot Act came into place, this level of freedom from warrantless wire-tapping and communication interceptions of other varieties was no longer a determinant right of the United States citizen. In this way, the Patriot Act has served to redefine the level of civil liberties that an individual previously enjoyed as a function of the Bill of Rights and the United States Constitution. It is important to note that although the Patriot Act has effectively constricted many previously enjoyed rights that have been subsequently renamed and re-categorized as a function of the US Patriot Act. This overarching legislation has dealt with an array of changes that the US economic, criminal justice, and intelligence systems work together and gather and disseminate information among their respective entities as a function of seeking to avert terrorist actions within the United States. Prior to the United States Patriot Act (and Title II Section 201), it was a legal requirement for probably cause to be determined so that the requisite entities could acquire a search warrant to perform an analysis of the behavior of the suspect with regards to their web browsing history, cell phone usage, social media actions, or financial history. This barrier to law enforcement literally flooding the system with a host of requests had ensured a reasonably balance between the privacy of the citizen and the prosecutor efforts of law enforcement and the state (Ackerman 2005). Furthermore, suspicion alone was never a determinant factor for a search warrant being granted as it was incumbent upon the prosecutor/prosecution to build a reasonably substantial case to present to a judge in order for the warrant to be issued in the first place. Such a process ensured that a modicum of legality was observed by all participants with respect to the rigor of the criminal justice system and the rights of the accused suspect. However, once the changes in the Patriot Act were instituted, the former requirements that had safeguarded civil rights and the need for a judge to demand verifiable cause with regards to issuing a search warrant were removed. Of particular interest is the phrasing that is used within the Patriot Act to denote the process whereby a judge determines whether or not a law enforcement entity has the rights to pursue a given course of action. As opposed to issuing a search warrant, the Patriot Act now stipulated that the United States Attorney General (or any of his/her subordinates) could authorize a federal judge to make an order authorizing or approving the interception of wire or oral communications by the FBI, or another relevant Federal agency (Sales 2009). There are several key components in the above description of powers granted that bear further analysis. Firstly, rather than the burden of proof and probable cause being necessary to grant action on the part of the federal judge, suspicion alone is enough to merit a response. Secondly, the response does not take the form of a traditional warrant but merely acquiescence by the responsible federal judge with relation to the case. In effect all that the federal judge needs to do is pass the information off to a responsible entity in order for formal investigations to begin. This represents what could only have been considered a breach of the law in a pre-911 legal analysis. With respect to opponents of the Patriot Act and civil libertarians, the most important fact does not hinge upon the fact that the government now has the power to surveil and obtain information; instead, the most important factor of argument for those in opposition to the Patriot Act is a function of the process through which this data is requested, obtained and utilized. An item of additional note is the wording surrounding what agencies will be responsible for disseminating the information that is obtained. Although it is common knowledge that the FBI is responsible for domestic law enforcement, the extent to which the intelligence community has begun working together on many cases since the events of September 11th is also an item that needs little introduction. In effect, the events of September, 11th have caused a high degree of information sharing and collaboration between the intelligence gathering apparatus of the United States Intel agencies (CIA, DIA, NSA, as well as others). This presents a fundamental problem with relation to the charters under which each of the agencies that have been listed operates. According to these charters, it is against the law for any of the aforementioned entities to surveil or gather information within the United States; as their primary mission and field of operations is supposed to be international. However, due to the wording of the Patriot Act as well as the closer and closer collaboration that these entities are sharing with relation to domestic terrorism, the casual observer finds it highly doubtful that such entities are living up to the demands set forth by virtue of their institution’s charter. Furthermore, of particular interest is the federal agency that is most renowned for wire-tapping, electronic surveillance, and data analysis is that of the National Security Agency (NSA). As such, it begs the question of what extent this agency is involved in domestic surveillance with respect to the new requirements put forth by the Patriot Act. Again, the National Security Agency is one of the handful of US Intelligence gathering entities that is bound by charter to not operate within the confines of the United States. Although physically located in Fort Meade, MD, the National Security Agency is tasked with securing and protecting America’s interests in an international capacity. As such, it is above and beyond the reach of this entity to engage in domestic espionage. One of the prime issues that critics raise against supporters of the US Patriot Act is the fact that its overall affect on domestic security and the safety of the individual citizen is for all intents and purposes immeasurable. Proponents of the US Patriot Act will readily point to the fact that since its implementation there have been no major terrorist attacks within the confines of the United States of America. However, lack of incidence alone does not correlate to success of the legislation; instead, this is a logical fallacy that mere lack of incidence is a proof of the fact that the program and legislation is working to its fullest potential. Conversely, on the negative aspects of what the Patriot Act has entailed, this is the broader topic. What this legislation has affected is a rapid removal of many of the civil liberties that Americans have enjoyed for a very long period of time. As such, many opponents of the legislation point to the fact that the Patriot Act itself is very similar to the Emergency Powers act that Germany passed to grant Chancellor Hitler an extended period of autonomy. Although this essay has briefly discussed the manner in which the Patriot Act has sought to redefine the nature of law enforcement as a function of counter-terrorism, little attention has thus far been paid to the issues surrounding the loss of transparency within the process itself. The loss of transparency is one of the single largest drawbacks, asides from the lack of civil liberties that the process itself necessarily entails. With regards to the loss of transparency, the lack of a warrant necessarily implies that the individual who may be being surveilled will have little knowledge of the events that are taking place. Much the same way that a grand jury operates, the accused will be clues of the process that is ongoing. Although traditional warrants did not necessarily alert the suspect to the fact that they were under investigation, the process itself was transparent and overseen by a grand jury at every step of the way. However, the change that has now been affected means that oversight with respect to the issuance of such determinations is concentrated within the hands of a single entity – the federal judge (Sekhon 2003). As anyone with even a modicum of experience with the law can attest, concentrating power to such a degree and instituting a non transparent process is a recipe for abuse and misuse. The transparency issue only serves to compound the other issues the law which have up until this point been analyzed. By means of providing a real world example of at least a tangential effect of the Patriot Act’s influence on the traditional interpretation of police function and the role of the criminal justice system, one need look no further than the recent dispute over the way in which the New York City Police Department actively surveilled and documented the actions of a specific subset of Muslim residents from New Jersey. The program, supported and financed by elements within the US federal intelligence community, worked for a period of over eight years secretly surveilling, recording, documenting, and tracking movements of Islamic community members and community leaders within New Jersey and New York. The network was so extensive the New York City Policy Department had its own task force which was specifically charged with overseeing the operation. Even more alarming was the fact that the federal overseers which interacted with and digested much of the data which was being produced were none other than elements within the Central Intelligence Agency. This operation is especially noteworthy with relation to this specific research topic due to the fact that tit relied heavily on warrantless wiretapping and surveillance privileges provided by the Patriot Act Title II Section 201 and 202. Furthermore, this alarming example is just one of a handful of similar such cases that are doubtless being investigated around the United States. Of particular interest with relation this particular instance is the fact that the handlers and program analysts who were responsible for the program have readily admitted under scrutiny/examination that “no leads of any usefulness” were generated as a result of the advanced level of surveillance that was employed against this group (Kane 2012). This is of particular interest due to the fact that the Patriot Act was specifically designed to assist law enforcement in gaining a valuable advantage against suspected terrorists in the struggle to keep the United States more secure from such threats. However, according to the implementation that has just been described, not only was the Patriot Act incorrectly applied, the results were not surprisingly limited due to the fact that an otherwise harmless and non-violently aligned subset of the native population was the focus of the misguided attempts of the intelligence and law enforcement communities. Although this particular instance is an isolated case, it is indicative of the trend that has unfortunately surrounded the applications of the Patriot Act since its implementation. Due to the fact that not a single useful bit of intelligence has been gathered which ash helped to avert a known potential threat, it is the estimation of this analyst that the act itself as well as the host of legal and political ramifications effecting both civil liberties and disenfranchised groups within society is of little if any merit. For purposes that this analysis has discussed, the Patriot Act has far reaching implications for the way the each and every citizen lives their life. Accordingly, the tangential reduction of civil liberties that has been discussed is also a pervasive component of the way in which the Patriot Act has been implemented throughout both the judicial system as well as law enforcement in general. Furthermore, due to the fact that the Patriot Act has not had any verifiable way of showing that it has helped to ameliorate the threat of domestic terrorism and cannot be directly attributed to a numerical list of terrorist related arrests and/or convictions, it is the belief of this author that the costs of further implementation and extensions of Patriot Act powers are necessarily not worth the benefits that it claims to convey to society. In short, due to the fact that the powers granted by the Patriot Act (specifically with relation to Title II Section 201) have a verifiable negative effect on the level of civil liberties enjoyed by the citizens of the United States without providing any verifiable and/or measurable means of combating or retarding the spread of domestic terrorism, it is this authors recommendation that the Patriot Act be fundamentally re-assessed within the metrics that have been listed. References Ackerman, S. (2005). Patriot Games. New Republic, 232(23), 14-20. Jaeger, P. T., McClure, C. R., Bertot, J., & Snead, J. T. (2004). THE USA PATRIOT ACT, THE FOREIGN INTELLIGENCE SURVEILLANCE ACT, AND INFORMATION POLICY RESEARCH IN LIBRARIES: ISSUES, IMPACTS, AND QUESTIONS FOR LIBRARIES AND RESEARCHERS. Library Quarterly, 74(2), 99-121. Kane, A. (2012, August 21). Official rationale for NYPD spying falls apart with report that 'no leads' came from spying on Muslims. Mondoweiss | The War of Ideas in the Middle East. Retrieved October 29, 2012, from http://mondoweiss.net/2012/08/official-rationale-for-nypd-spying-falls-apart-with-report-that-no-leads-came-from-spying-on-muslims.html Sales, N. A. (2009, March 6). The Patriot Act isn't broken. Christian Science Monitor. p. 9. Sekhon, V. (2003). The Civil Rights of "Others": Antiterrorism, The Patriot Act, and Arab and South Asian American Rights in Post-9/11 American Society. Texas Journal On Civil Liberties & Civil Rights, 8(1), 117. Read More