The tragic incidents of September 11, 2001, radically manifested the ambit of action and effective backlash of terrorism. This scenario made national security and protection of citizens a major concern for the American government. American government took all substantial and accelerated measure to meet the requirements of this crucial period of history. The establishment of the Department of Homeland Security was an apt and appropriate counter-measure by the U. S. to the terrorism defiance.
The government further explored other avenues to develop a perfect security model and indulged other community groups i. e. scholars, scientists, and technologists with their intellectual and technological capabilities. Technological advancements and innovations in communications have enabled the security agencies to locate, counter and overcome the terrorist activities worldwide. These scientific advancements must play their all-encompassing, essential role in surmounting many challenges posed by terrorist such as information collection, interception etc. utlined in the above-mentioned “National Strategy for Homeland Security”.
So changes underline in “National Strategy for Homeland Security” and proposed by other constitutional or extra constitutional orders raise questions about privacy rights and put forward confidentiality concerns. The constitutional and governmental efforts to augment the surveillance so far signify a change in the political balance produced in the recent past between the frequently opposing interests of privacy and public security.
A measure adopted by the American government is promulgation and enactment of Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, famously known as Patriot Act. This Act authorizes law enforcement agencies to take appropriate measure against any activity of terrorism. It further eases out some of the legal and constitutional impediments from the way of these law-enforcing institutes.
Charles Doyle, Senior Specialist, American Law Division discuses the objectives and effectiveness of this Patriot Act in The Congressional Research Service (CRS) Report for Congress report entitled “The USA PATRIOT Act: A Sketch,” The report describes the Patriot Act as an apt and appropriate measure to acts of terrorism, providing the authority to surveillance agencies and law enforcement officials “to track and intercept communication”.
It further authorizes Treasury Office to locate and embark upon the corrupt practices for foreign money laundering. It removes the unnecessary hurdles for officials and produced new efficient procedural measures and strict penalties for terrorists and criminals involved in terrorist activities. (ALCU) Some other scholars have described the Patriot an imperative measure to curb the terrorist activity through proper surveillance. Its provisions further aid two vital objectives.
Firstly they guarantee American citizens that U. S. overnment is taking adequate step to eradicate or counter terrorist activities and is a savior of their lives and thus is helpful in psychological war against terrorism. Secondly it assists the surveillance agencies to take all the immediate and effective measures to disrupt the criminal and/or terrorist activity. Although Patriot act provides surveillance agencies with great powers to search and eavesdrop to intercept and counter any terrorist activity but critics of the Act has illustrated that Patriot Act forfeited legal and constitutional shields of liberty and privacy for American citizen.
For example, Susan Herman who is Centennial Professor of Law at Brooklyn Law School and General Counsel of the American Civil Liberties Union holds the views that Patriot Act is against the spirit of cherished American ideals of freedom and democracy. She described that Patriot act lack a balance between rights of the American citizens and the President’s initiative to curb the terrorist activities.
She says that Presidential powers in Patriot act are imperative for the protection of American citizen’s from future terrorists attacks but he is also responsible to “preserve, protect and defend the constitution” that safeguards the privacy and individuals rights of the people. (Herman, 2002) Prior to Patriot Act, U. S. President George W. Bush promulgated a secret executive order soon after 9/11 that capacitated the National Security Agency (NSA) with an authority to carry out wiretapping of suspected persons in America.
The hallmark of this executive order was to conduct surveillance without acquiring approval or warrants from a FISA court. This order and activity was unlawful and unconstitutional as it trespassed its legal and constitutional jurisdictions and violated the legal and constitutional privacy rights of the people. New York Times reports that Bush administration justified this mass wiretapping program as a “critical tool in helping disrupt terrorist plots and prevent attacks inside the United States” (Risen. J & Lichtblau Eric. 005) and considered it vital for national security.
But the opponents of the program hold the view that this order has serious legal constitutional repercussions and has harmed the cherished American ideals of personal freedom, right of privacy and the constitutional provision for no illegal and unjustified intrusion in the lives of American national provided under fourth amendments. This order has ethical connotation as it violates the celebrated ideals of freedom but legal and constitutional implications remains the hub of this controversy.
The legality of the issue includes three aspects of the excutive order in its domain; Foreign Intelligence Surveillence Act and its oversight by Bush Administration, constitutionality of the issue, Presidential Powers and Fourth Amendment. Foreign Intelligence Surveillance Act, promulgated in 1978 defines the extent and limits of Jutice department’s authority for mass surveillence and wiretapping. According to FISA, Justice Deparetment must obtain surveillence warrant from Foreign Intelligence Survellience Court (FISC) within 3 days after the commencement of survillence.
This act provides FISC judge to grant permission for surveillence if the judge believes that “there is a probable cause to believe that… the target of the electronic surveillance is a foreign power or an agent of a foreign power. ” (50 U. S. C. §1805(a)(3). ) FISA also devised another mechanism as it provided the president with poewers to to authorize Justice Department to evaesdrop on foreign govenments and their agents for upto one year without a court order. (50 U. S. C. §1802(a)(1). This act clearly manifests that surveillence and wiretapping is permitted when a foreign power and/or its agent are involved in activities that are a threat to American security or international terrorism.
Bush administration defended the presidential order on the grounds that FISA and its processes impede the speedy and agile actions needed to acquire the information about the activities of terrorists and their agents and to disrupt the acts of terrorism. US Attorney General Alberto Gonzales asserts that presidential order about the domestic surveillance is in accordance with authority vested in the office of President by U. S. constitution. He claims that: The terrorist surveillance program is firmly grounded in the President’s constitutional authorities. The Constitution charges the President with the primary responsibility for protecting the safety of all Americans, and the Constitution gives the President the authority necessary to fulfill this solemn duty. See, e. g. , The Prize Cases, 67 U. S. (2 Black) 635, 668 (1863). It has long been recognized that the President’s constitutional powers include the authority to conduct warrantless surveillance aimed at detecting and preventing armed attacks on the United States.
Presidents have repeatedly relied on their inherent power to gather foreign intelligence for reasons both diplomatic and military, and the federal courts have consistently upheld this longstanding practice. (U. S. Department of Justice, 2006) General William Moschella, Assitant Attorney for legistaive affairs in Justice Department questions the quickness of FISA and its mechanisms and defended the presidential order to equip NSA with warranless surveilllence authority. He wrote, “FISA could not have provided the speed and agility required for the early warning detection system.
In addition, any legislative change, other than the AUMF, that the President might have sought specifically to create such an early warning system would have been public and would have tipped off our enemies concerning our intelligence limitations and capabilities. (Department of Justice. 2005) He further said that FISA is good tool in a long-term investigation perspective but unable to deliver in speedy environment and the government is “taking full advantage of any developments in the law. (Department of Justice. 2005) In response to this stated letter by Assitant Attoreney, renowned legal scholars and ex-government officials forwarded their plea in the form of a leeter to Chairs and Ranking members of House and Senate. The letter encompasses all the legal issues regarding NSA authority for warrantless surveillence and concludes that justification provided by Assitant Attorney is not a plausible legal defense but a fabricated justification to cover up the legal loopholes of the presidential order.
The letter further discussed the sufficiency issue of FISA to tackle the speedy processes in detail and hold the view that “if the Administration felt that FISA was insufficient, the proper course was to seek legislative amendment, as it did with other aspects of FISA in the Patriot Act, and as Congress expressly contemplated when it enacted the wartime wiretap provision in FISA. One of the crucial features of a constitutional democracy is that it is always open to the President—or anyone else—to seek to change the law.
But it is also beyond dispute that, in such a democracy, the President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable. ” The illegality of the executive order was further reinforced by the court decision in ACLU vs NSA case. The U. S. District Court Judge OF Eastern District of Michigen ruled that wiretapping without warrant from FISA is an unlawful and unconstitutional activity as it is the violation of individual privacy rights and freedom.
The judge further ordered to eavesdrop on phone calls with immediate effect. In her ruling she wrote: “The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well. ” (ACLU v. NSA. 2006 p. 33) Bush administration is of the view that President derives its power from Constitution.
Constitution of United States of America installs President of America as the supreme commander of American forces and a caretaker of the laws. Article II of the constitution state that American president is “Commander in Chief of the Army and Navy of the United States,” and he “shall take Care that the Laws be faithfully executed”. The law will be legislated by Congress. The proper check and balance system and distribution of powers among Presidency, Legislature and Judiciary limit the executive powers of presidency.
Although judiciary accepts the presidential to conduct domestic electronic surveillance inside the constraints of the Fourth Amendment and the jurisdiction of Foreign Intelligence Surveillance Act but no decision or ruling has prompted Congress to disable itself from endeavoring hinder the way of unconstitutional use of that powers. Even Supreme Court has ruled that Congress possess inherent powers to regulate and supervise domestic surveillance. The most important aspect of this controversy is the violation of individuals’ rights provided under fourth amendments.
The Bush order enabling NSA to conduct warrantless wiretapping is a violation of Fourth Amendment that protects the right of American Citizens against unreasonable surveillance. This Amendment states that “right of the people to be secure… against unreasonable searches and seizures” and “no Warrants shall issue, but upon probable cause”. Several judicial rulings has clarified that FISA is not a violation of the Fourth Amendments because FISA recognizes the need of a probable cause and requires the agencies to produce a probable reasonable cause for the issuance of surveillance warrants.
The executive order issued by the President Bush for warrantless surveillance is an explicit violation of the fourth amendment as it enables the security agencies to intrude the private lives of American people without providing any “probable cause” for this act. The American Bill of Rights guarantees freedom of speech, religion, and assembly in addition to other significant protections against the suppression of government and official agencies, “provides a noble action and shield of human dignity. ”(Brennan Jr. 1989. p 425) The Bill of rights epitomizes the constant will of humanity for individual rights and protections.
Essentially, Bill of Rights as incarnated in the first ten Amendments of American constitution is an acknowledgment of the individual dignity and rights and it also manifest an embargo on the government itself to exploit and manipulate these rights. “The Bill of Rights, in other words, deals with the protection of the individual against his Government. The protection of an individual against another individual or group of individuals is not implicit in the Bill of Rights, but falls more into the realm of police powers of the Government. (Wise, James Waterman, 1941. p. 35)
The guarantees of fundamental individual rights, provided by the bill of rights are general in its definition and application and applicability rests in the discretion of the “adjudicative bodies. ” This quality of the Bill of Rights capacitate it with the ability to be applicable at the broader level because it “permit judges to adapt canons of right to situation not envisaged by those who framed (it) there by facilitating (its) evolution and preserving (its) vitality”(Brennan Jr. 1989).
Another distinction of the Bill of rights is that it enables the Supreme Court to reform American criminal procedures and align it with the provision and protections in the Bill of Rights. For example in Miranda vs. Arizona case, the Court made it clear that police must inform the person under interrogation his rights. Its ruling included that police must inform the detainee his right to silence and his right to a lawyer. Above mentioned examples illustrates that Bill of Rights is a proper and valid guarantee for the individual rights of American citizens.
But lack of a proper reinforcement mechanism makes it dependent. The generality of the provisions of Bill of Rights is an important characteristic that enables the adjudicative agencies to interpret it according to situational context of a particular case. Although certain rulings by the Courts has harmed the true nature and objective of the Bills of Rights and had reduced it to mere cherished ideals but still it is an important tool to protect the rights of American people.
We can debate whether he (Bush) had a good or bad motivation, and we all are well aware of the fact that Bush intentions are good. His sole motive was to authorize the agencies with necessary powers for speedy interception of terrorists’ activities. But there is a proper and lawful way to capacitate the NSA with this authority i. e. to formulate new laws if the previous ones are obsolete and not capable of handling the critical situation. Feingold says in this regard that “Defeating the terrorists should be our top national priority, and we all agree that we need to wiretap them to do it.
In fact, it would be irresponsible not to wiretap terrorists. But we have yet to see any reason why we have to trample the laws of the United States to do it. ”(Our Job…, 2006, p. 28). Above mentioned discussion clearly manifest that instead of taking Bill of Rights into consideration and devising strategies accordingly, we are asked to trim down our expectations and our belief in guarantees provided by Bill of Rights. We are further expected to understand the reduction in the rule of law.
We are expected to lower down constitutional rights and expectations. In totality, we are expected to accept new security measures without official liability and without questioning its effectiveness. Irrespective of legality controversy of the security policy and measures, another question is about the effectiveness and utility of the NSA wiretapping. Whether empowering NSA to wiretap at the mass level will yield into secured America? Experts are still skeptic about this assumption.
Mark Hosenball, and Evan Thomas says in this regard,” The harder question is whether the techno wizards at the NSA, overwhelmed by tidal waves of digital data, searching for tiny poisonous fish in a giant sea, can provide true security from another 9/11” (Hosenball, Mark and Thomas, Evan. 2006) The dilemma behind 9/11 terrorist activity was not non-availbility or less-availabilty of the information but it was ‘too much information’ that our law-enforcement agencies could distinguish between important and unimportant.
There must a workable balance between as suggested by Philip B. Heymann and Juliette N. Kayyem. They recommend in this regard, “Particularly relevant for the debate over the Patriot Act are our findings on compelled government access to private, confidential records in terrorism investigations…We believe that compelled access to personal records should depend on whether there is a judicial finding of a link between the records and an individual or organization already reasonably suspected of being engaged in terrorism or a specific planned or executed act of terrorism — or of being in contact with such a suspect.
Additionally, in the contemporary perspective, privacy rights should encircle a almost all facets of rights encluding clear and explicit set of legal standards, strict official accountability, judicial regulations and supercvision. Furthermore, surveillance techniques and tool must be devised in a way to manifest maximum deference for individual dignity and autonomy.