Balancing Civil Liberties and Domestic Security - Research Paper Example

 Balancing Civil Liberties and Domestic Security Although, every nation worth its salt should allow her citizens to enjoy civil liberties, the issue of homeland security is also an imperative issue that needs addressing. Most countries are not able to balance the two issues. When security threats increase, liberties wither. That has been the history of not only the individual countries but the world in general, especially in the period of conflict. Currently, the world faces risks that are hard to predict: many security threats come in different forms, hence threatening the civil liberty-security balancing. Every passing day, witnesses terrorists exhibiting eagerness to strike and cause irreparable pain and damage to a peaceful society. Conversely, allowing unfettered civil liberties in society could breach security protocols. This paper explores how government agencies grapple with the challenge of balancing of civil liberties and homeland security. Overview of the issue The balancing of civil liberties and homeland security has been a historical challenge to most governments around the world. For instance, unlike a large number of comprehensive observations of the balancing of liberty and security concerns since the September 11 attacks in the United States, which holds that societies have taken government authority further, especially on security issues. Advocates of civil liberty have undervalued the necessity of wider investigative authority and overstated the risks to the fundamental liberties in society. Judicious extension of the government mandate to locate suspected security threats would not cut into freedom (Pawlak, 2009). On the contrary, either risking easily preventable security breaches and damages or resorting to detention without trial, regardless of the legal processes, could be interpreted to mean the lack of security in society. Members of the society should not worry to go through formal security checks in order to enjoy the freedom in a secure environment; however, cases such as being wiretapped or frisked or questioned or spied upon and more about witnessing innocent people incarcerated or made to go through capital punishment, erodes civil liberties (Hoover, Read, Arnone, Bollag, Monastersky, Wheeler, Guterman, Borrego, & Bartlett, 2003). Achieving the Liberty-Security Balance in the United States The main instruments of state power and the citizens of the United States have for since time immemorial, demarcated the extent of civil liberties by judging competing welfare, the public-security and the freedom interests. This implies that the more secure the nation becomes, the more freedom the judiciary will be ready to grant the society (Kahn, 2008). Immediately, after the mid-twentieth century, the essence of the civil safety side of the balance seemed fairly reserved. The isolated criminal acts by gangs such as the Black Panthers and Weather Underground, which had fairly gained much popularity around 1975, was a less significant development compared with American enemies today. Suicide bombers, for instance, were largely insignificant in number before the twenty-first century, nonetheless, the risks of fettered civil liberties imposed by wide probing and incarceration authority and an all powerful presidential system had come to fore during the Watergate Scandal and by leaked cases of such horrible abuses of authority as carrying out undercover work on political leaders, the wiretapping and persecution of pro-democracy advocates like Martin Luther King, Jr., by the Federal Bureau of Investigation agents. The government's frustration of antiwar groups, also witnessed cases of poor balancing of civil liberties and state security (Addicott, & McCaul, 2008). Hoover et al (2003) say to eliminate such cruelty, the Supreme Court, law makers, and Presidents Ford and Carter imposed strict restriction on policing and spying bodies. The Court enhanced and in a number of ways expanded the Warren Court's radical restrictions on the authority of the national administration to search, capture, wiretap, grill, and incarcerate suspected offenders, and terrorists. Notably, it also hindered unnecessary wiretaps and probes of local agents of change. Congress banned unnecessary wiretaps and investigation of suspected alien spies and terror suspects. The Foreign Intelligence Surveillance Act of 1978, sought to curtail the presidential power on the sanctioning of such operations. This led Edward Levi, who served under President Ford, as attorney general, to limit domestic spying by federal authorities. Consequently, Pawlak (2009) indicates that the bulk of the investigative authority that administrators could implement to scuttle terror group links such as cells-surveillance, searches, informants, gathering intelligence, wiretaps, arrests, grilling, incarceration, are largely limited by many legislations, judicial verdicts, and government rules. Sucked into her homeland security issues by the dangerous terrorist organizations in history, the United States is relying upon investigative authority calibrated mainly for unearthing drug peddling, bank heists, robberies, murderers and burglars. Despite the strong spying and investigative operations of the government, the country remains stuck in theoretical practices that do not offer answers to how risky the twenty-first century has turned out to be or how the country’s judicial system ready to handle the new security threats and civil rights concerns (Kahn, 2008). Boeving (2007) indicates rethinking the administrative authority of the federal authorities, witnesses a few of the common policing and probing strategies have much impact of scuttling and eliminating terror groups around the world. The four main tenets include; infiltrating the security threats through spies and informants; locating their positions and getting to know their techniques through surveillance, investigation, and wiretapping; incarcerating them before security threats translate into major losses; and questioning those put in custody. All except the infiltration approaches are presently so tightly limited by earlier verdicts delivered by Supreme Court, legislation, and executive orders as to gravely hinder terrorism investigations. Well thought-out legislations, could enhance the usefulness of these powers by making them more applicable in several cases, while setting limitations to control abuse at the same time. Probe and Surveillance The Supreme Court's interpretation of the Fourth Amendment, regarding the ban of unwarranted searches and apprehending of those who breach national security, fails to draw a line between a normal search for unearthing stolen property or drugs and a precautionary search for potential threats to security. To carry out a search in residence, acquire a wiretap, or carry out a careful search of an item such as a vehicle, the administrative authorities must be prompted by probable cause. This value is often misunderstood to mean criminal leads, rather than exonerating evidence, if any. These regulations are of little significance if the intention of the investigators is to scuttle mass murder (Hoover et al, 2003). National agents and local law enforcement agencies alike need more precise direction than the judiciary can quickly implement. Congress should grab the opportunity, and formulate effective laws aimed to transform terrorism investigations into a more objective process. The current structures that offer guidance for searching, capturing, and wiretapping, the excessive rigidity of the tabling of the burden of proof to gain a search warrant in an investigation targeted at terrorists should be repealed, to cater for civil rights of the suspected offenders (Kahn, 2008). Overstated fear of the government Proposals to enhance the authority of the government to wiretap rouse fears of draconian powers of the police and the executive arm of government. Hooker (2005) suggests that this could unleash unfettered spying, harassment, blackmail, and mudslinging of those deemed not to be politically correct. Civil rights activists opine that most dialogues overheard, sent or received electronic mails and text messages seized in the fight against terror campaign will render suspected security threats blameless, and that the interceptors and buggers will eavesdrop on intimate communications and embarrassing secrets that are not helpful to the government. Such concerns offer reason for being precautionary to widen wiretapping and inspection authority only as is sensible to deter terrorist plans and moves. But more wiretapping powers are not entirely bad for libertarians. It is a precise and smooth approach to infiltrating terrorist incarceration facilities than the key option, which is staging and hiring informers: the latter is a risky, ugly, and an unpredictable move in which most government bodies have unfettered powers to navigate. In light of this, if a government limits its surveillance authority, it should rely more on informants to be successful in maintaining security within its jurisdiction (Addicott, & McCaul, 2008). Moreover, curtailing the government's influence to gather information via wiretapping is but one of the ways through which government agencies guard against abuse of the intercepted details. Several other prevention mechanisms that are less destructive to the counterterrorism effort, such as the Justice Department's Office of Professional Responsibility, legislative probe agents, a multitude of moderate and conservative organizations advocating civil liberties, and the media, have largely become forceful. The FBI’s practical mandate has transformed from the misuse of resources on unnecessary spying (Pawlak, 2009). Coercive grilling The self-incrimination section of the Fifth Amendment of the United States constitution protects citizens from being coerced to incriminate him or herself. Nonetheless, the section does not outlaw forcing a suspected offender to talk. In view of this, it behooves the judiciary, that in establishing whether the accounts provided by a defendant, and details extracted from them, may be employed to incriminate them during legal proceedings, to discard all the evidence. This is because forcible interrogations of apprehended suspects, often results in violation of civil rights and injustices (Boeving, 2007). The trial chambers, essentially ignore this interpretation because, most trials are based on suppressing a defendant's exonerating evidence. Little weight, if any, is put on the essence of the constitutional need for proper questioning, or the painstaking employment of the evidence collected, or both. Conversely, remaining silent is illegal, though, key stakeholders of the criminal justice system believes that those who remain silent actually exercise the freedom of expression (Kahn, 2008). The most believable understanding of the law and the previous verdicts of the Supreme Court is that security agents are at liberty to question any suspect, regardless of civil rights. The agents can spurn pleas of an attorney to seek explanations for unclear areas; and spend several hours grilling terrorist suspects. Security agents can also use verbal abuse, seclusion, polygraph tests, threats of capital punishment, blindfolds, and other ways of emotional coercion to extract evidence. Nevertheless, the anti-terrorism war has suddenly taken foot, an area where most civil rights are believed to be violated for security concerns. In terrorism probes, the trend has shifted toward the significance of acquiring vital information that is likely to prevent the killing of many lives, rather than to seek incriminating evidence for tabling during trial. According to Pawlak (2009), even in instances where interrogation of a terror suspect is necessary, as a preventive measure against mass killings, state agencies could be blamed for violating civil rights concerns and using forcible questioning approaches, because the prosecution of key terror suspects could prove untenable. Nonetheless, investigators of terrorist activities may be in a position to acquire their proof and employ it too, if the government stretches a 1984 model setting up what the court termed a state security exception to civil rights enjoyment by a defendant. That ruling set precedent at the proceedings of a criminal suspects trial’s incriminating reply to a law enforcer's demand that the court be told where the gun was kept. Those details are not viable for most probes of terrorism activities; as they could result in the security breaches and crime. Legislating Preventive Detention Since September 11 terrorist attacks in the United States, countless violations of civil liberties have been meted out against suspected terror suspects in the country. Preventive detention, which involves detention of individuals because of their suspected dangerousness even without their conviction nor or trial with any offense, would turn out to be the clearest departure from hundreds of years of the quest for civil liberties, and the paradigm shift toward police high-handedness (Hooker, 2005). Preventive detention, therefore, has never yielded any significant results. The capacity of global terrorist organizations to execute catastrophic damage and loss of lives raises major issues about the complex nature of contemporary security threats. Today, most terrorists are prepared to shun criminal acts that might point to their likely criminal life. In view of this, the cautious ones cannot be captured to face criminal charges until they carry out a devastating carnage. Recommendations Although, previous legal approaches to thoughtful debate resulted in the establishment of many policies, some of these were constructive, others defective. Carefully created new laws would be appropriate not just for national safety but also for social freedom. Stubborn observance of the social freedom would probably reverse the major gains that different societies have achieved much better that would legal amendments to regulations that are not important. Careful congressional action founded upon fruitful national deliberation is more likely to result in the creation of legislations that incorporate fundamental civil liberties and protect the sanctity of the Constitution, as opposed to unilateral extension of the executive mandate (Hoover et al, 2003). The main role of the judiciary is to check the powers of the executive; however, this can only be achieved if the legislature sets the legal parameters within which they can be interpreted (Boeving, 2007). Government bodies will be expected to honor civil liberties if the regulations that establish unwarranted hindrances to executing their mandate are eliminated. And to avoid terrorist activities, for instance, the onus falls with the government to execute the most effective measures of shunning a panicky hurry into truly a cruel policing move. This paper explored how government agencies grapple with the challenge of balancing of civil liberties and homeland security. Conclusion The balancing of civil rights and security issues is not an easy task. It needs the effort of all government arms and the civil society. The need to infiltrate secret terrorist detention facilities validates the reexamination of civil liberties regulations that limit the government's central investigative and incarceration authority. Proactive citizen debate and prudent legislative effort should substitute the presidential approach to addressing national security and civil rights issues. New legislations that are carefully formulated would be the panacea for both security and freedom. Stubborn conformity to the conventional civil rights mantra could eventually water down the most important liberties than would judicial reforms of regulations that are less important. Careful legislative passage of laws that incorporate basic civil rights and legal accountability would go a long way as opposed to the expansion of the mandate of the executive arm of government. References Addicott, J.F., & McCaul, M.T. (2008). The Protect America Act Of 2007: A Framework For Improving Intelligence Collection In The War On Terror. Texas Review of Law & Politics, 13(1), 43-71. Boeving, J.N. (2007). The right to be present before military commissions and federal courts: protecting national security in an age of classified information. Harvard Journal of Law & Public Policy, 30(2), 463-577. Hooker, C.H. (2005). The past as prologue: Schneiderman V. United States and contemporary questions of citizenship and denationalization. Emory International Law Review, 19(1), 305-381. Hoover, E., Read, B., Arnone, M., Bollag, B., Monastersky, R., Wheeler, D.L., Guterman, L., Borrego, A.M., & Bartlett, T. (2003). Closing the Gates. Chronicle of Higher Education, 49(31), A12. Kahn, J. (2008). International travel and the constitution. UCLA Law Review, 56(2), 271-350. Pawlak, P. (2009). Network Politics in Transatlantic Homeland Security Cooperation. Perspectives on European Politics & Society, 10(4), 560-581. Read More