The September 11, 2001 attacks on the World Trade Center and Pentagon forever changed the way the United States government and its people view the freedoms given to those living within its borders. The blatant disregard for human life and the use of public transport and communications to effectively attack the United States raised many questions as to the effectiveness of national defense, the ability to secure intelligence, and the power to disrupt the resources that would allow terrorist the opportunity for future attempts. Several legislations were passed with this purpose in mind; the U.S.A. Patriot Act, the Homeland Security Act, the Intelligence Reform and Terrorism Prevention Act and the Foreign Intelligence Surveillance Act. The Department of National Intelligence (DNI) was also formed after the 9/11 commission reported discrepancies with the intelligence known to government agencies which could have reduced the devastation of 9/11. The DNI has the authority on paper to develop and execute around 80 percent of intelligence spending, including the budgets of the CIA, the Defense Intelligence Agency, and the intelligence shops of the FBI and the Departments of State, Homeland Security, Energy, and the Treasury. That authority also extends to the biggest part of the intelligence budget, namely, the money for the Pentagon's national collection agencies: the National Security Agency (which handles communications intercepts), the National Reconnaissance Office (satellites), and the National Geospatial-Intelligence Agency (photography and maps) (Fessenden, 2005). Terrorism has at this time accomplished one of its main objectives; strike a terror so horrific that it stifles a nations' judgment to destroy the very foundation of its country, ignoring the very Constitution and the rights and privileges given to all who reside within its borders. The question that is beginning to come in front of the court is; do the Patriot Act and the legislation passed in conjunction violate the Constitution? Some argue that it is not unconstitutional because of war time rules and special power and consideration given to the president to investigate and gather intelligence to prevent future attacks on Americans. If this is so, in a conflict that affects not only the enemy but also innocent American citizens' one must ask the question, at what point will the infringements on Constitutional rights lift, when will the need for the violation of Constitutional rights to secure intelligence for the purpose of preventing terrorist attacks not exist? Prior to 9/11, the United States treated attacks on domestic soil as criminal acts and prosecuted in the courts, subject to normal rules of discovery and the usual burden of proof beyond a reasonable doubt. This has been the case in terrorist acts ranging from the bombing of the World Trade Center in 1993, the Oklahoma City bombing, the plot to blow up New York City's tunnels and bridges, and the indictment of Bin Laden himself for the embassy bombings (Farmer, 2004). In all of these cases, the accused were not restricted or prevented from the use of Constitutional rights afforded to them. The Judicial system was allowed to process and punish the guilty without violating due process, post 9/11 legislation gives the President the power to form a military tribunal which under war time conditions does not adhere to judicial scrutiny. In Hamdan v. Rumsfeld, the US Supreme Court held that prisoners being held in the military prisons at Guantanamo Bay, Cuba could not be tried by the special military tribunals set up by Pres Bush. The high court found that such prisoners were entitled to some of the protections of the Geneva Conventions.
Our criminal justice system affords substantial and necessary presumptions to criminal defendants: the presumption of innocence, the requirement of proof beyond a reasonable doubt, the requirement of jury unanimity, and the protections afforded by the bill of rights. These protections are the very definition of our freedoms. How is a free society to cope with a threat of this magnitude and remain free? How is reasonableness to be evaluated against a threat that promises unlimited destruction and no end but, perhaps, ours (Farmer, 2004)? Chief Justice William Rehnquist suggests in his book All the Laws but One: Civil Liberties in Wartime, national emergencies shift the balance between freedom and order toward order-"in favor of the government's ability to deal with the conditions that threaten the national well-being" (1998, 222). Initial public polling bears out that view. In February 2002, 62 percent of respondents in a Greenberg poll agreed that "Americans will have to accept new restrictions on their civil liberties if we are to win the war on terrorism." During the same period, only 12 percent of respondents in a Newsweek poll feared the Bush administration's response to terrorism was "going too far in restricting civil liberties," a finding virtually unchanged from a similar poll conducted in November 2001. When asked about specific strategies to root out terrorists, 78 percent of respondents in a September 2001 NBC/Wall Street Journal poll said they would be willing to accept surveillance of internet communications, and 63 percent of participants in a similar Harris Poll said they would favor expanded camera surveillance on streets and in public places. “As President and Commander-in-Chief, I have the constitutional responsibility and the constitutional authority to protect our country. Article II of the Constitution gives me that responsibility and the authority necessary to fulfill it. And after September the 11th, the United States Congress also granted me additional authority to use military force against al Qaeda”(Bush,2006). A similar point is true in the area of criminal procedure, where Americans seem willing to countenance surveillance and searches so long as police activity is directed against individuals presumed to be criminals. Over 80 percent of Americans support the "frisking" of individuals who appear “suspicious” and large majorities would allow police officers to search a car for drugs or stolen goods following a stop (Lock 1999). Perhaps the public is balancing the perceived intrusion of the search against the likelihood of uncovering criminal activity, but the more likely answer is that Americans are willing to accept restrictions that do not "directly affect them or the groups to which they belong" (Chong 1993, 887). The war time status which took effect when President George W. Bush declared a state of emergency following 9/11 allowed him to use the Patriot Act to ignore Due Process of laws found in the fourth and fourteenth amendment on illegal search and seizure. It also drastically affected the Fifth Amendment right to indictment by a grand jury and the Sixth Amendment right to counsel provision. Even before this act was adopted, the federal government had stepped up security and surveillance, detaining roughly 1,200 people in the weeks following September 11th, proposing military tribunals for captured insurgents, and interviewing nearly 5,000 visa holders. On the home front, security was increased at public buildings and gatherings and, of course, at airports. Most of the public is now aware that a trip through airport security may involve some manner of disrobing. The Patriot Act confronted any obstacle to intelligence gathering found within the Constitution. The rights protecting United States citizens from the abuse of government power by abusing wire and phone tapping, surveillance, the detention of illegal aliens held indefinitely under the “enemy combatant” title, and the sharing of privileged information between government agencies are all results of the war on terror and the extended power granted to the president. Section 203(a) of the Patriot Act, passed in late 2001 drastically altered the historic secrecy of grand jury proceedings. By defining foreign intelligence information as; information, whether or not concerning a United States person, that relates to the ability of the United States to protect against (i) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; (ii) sabotage or international terrorism by a foreign power or an agent of a foreign power; (iii) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or (B) information, whether or not concerning a United States person, with respect to a foreign power or foreign territory that relates to (i) the national defense or the security of the United States; or (ii) the conduct of the foreign affairs of the United States.(p.281) Interpreted literally, this means that even information relating to U.S. citizens that result from grand jury testimony can be shared between law enforcement agencies ( Worrall, 2004). The Patriot Act, is described by Attorney General John Ashcroft as a "package of 'tools' urgently needed to combat terrorism" (McGee 2001), the legislation raises domestic intelligence gathering to an unprecedented level. Among its several provisions, the act stipulates that the standards for wiretapping may be lowered. Whereas previously, the FBI could obtain a court order only if its "primary purpose" was to gather intelligence through wiretapping, the new law permits wiretaps if "a significant purpose" involves intelligence gathering. As a result, people merely suspected of working with terrorists or spies may be wiretapped. The Patriot Act also stipulates:
* The FBI may share sensitive grand jury and wiretap information with intelligence agencies without judicial review or any safeguards limiting its future use, so long as the information concerns foreign intelligence or international terrorism.
* Law enforcement may access an individual's internet communications if officials can certify to a court that the information is relevant to an ongoing criminal investigation. This standard is much lower than the showing of probable cause required for most search warrants.
* Financial institutions will be required to closely monitor daily financial transactions and share information with government intelligence services. The law also allows law enforcement agencies secret access to an individual's credit report without judicial review.
* A new crime of domestic terrorism is created, covering conduct that "involves acts dangerous to human life." Presumably, members of Operation Rescue or Greenpeace would be covered under this definition, permitting the FBI to wiretap the homes of individuals who provide lodging or other assistance to activists.
* Non-citizens facing deportation may be held indefinitely on the attorney generals' certification that an individual endangers national security.
The House voted to make 14 provisions permanent but put a 10-year sunset on sections 206 and 215. In the House, Democrats and some Republicans had pushed for new restrictions on those sections of the act. The roving wiretap provision, Section 206, allows investigators to conduct secret searches and obtain warrants to intercept a phone conversations or Internet traffic without limiting it to a specific phone or identifying the suspect. The records provision, section 215, authorizes federal officials to obtain "tangible items" such as business, library, and medical records. The legislation also restricts the government's powers, requiring a higher standard of proof for investigators to demand business records, greater judicial oversight, and increased reporting to Congress on antiterrorism operations and limits on roving wiretaps. Despite opposition to the passing of the Patriot Act, President George W. Bush made this statement during a speech to the American people again stressing the importance of quick and decisive action towards a growing national threat. The President states, “After September the 11th, Congress acted quickly and responsibly by passing this law, which provides our law enforcement and intelligence community key tools to prevent attacks in our country. The Patriot Act tore down ' the legal and bureaucratic wall that kept law enforcement and intelligence authorities from sharing vital information about terrorist threats. It allows federal investigators to pursue terrorists with tools already used against other types of criminals. America's law enforcement personnel have used this critical tool to prosecute terrorist operatives and their supporters, and to breakup cells here in America” (Bush, 2006). A federal judge recently struck down a key surveillance provision of the Patriot Act, ruling that it broadly violated the U.S. Constitution by giving federal authorities unchecked powers to obtain private information. The decision by U.S. District Judge Victor Marrero in New York marks the first time that surveillance power granted to federal agents under the 2001 antiterrorism legislation has been ruled unconstitutional. The Patriot Act expanded the surveillance powers of federal law enforcement. Marrero said the provision's "compulsory, secret, and un review able production of information" demanded by the FBI violates the Fourth Amendment's protection against unreasonable searches, and its unlimited ban on disclosure by recipients of the letters infringes on First Amendment free-speech rights( Swartz, 2004). A judge in Los Angeles ruled that portions of the law regarding the definition of "material support" to terrorism were too vague and, thus, unconstitutional. According to the Times, Congress tried to fix the problem by amending the language as part of last year's intelligence reform bill after the same district judge, Audrey Collins, ruled twice that the wording raised constitutional problems. Judge Collins said in her latest ruling that the changes adequately clarified what constituted providing "personnel" to banned terrorist groups, but that the wording on providing "training" and other support was still "impermissibly vague"(Swartz, 2005). A case involving the indefinite detention of an American citizen captured allegedly fighting in Afghanistan is presented to the court solely due to the question of due process of an American citizen. The circuit courts of appeal differed widely in their treatment of the "enemy combatant" designation. The fourth circuit, sitting in the case of Hamdi v. Rumsfeld, responded with the classic deference afforded executive action during times of crisis. Originally held at Guantanamo, Yasir Hamdi was transferred to a naval brig in Norfolk Virginia when the government learned he was a citizen, and he was labeled an enemy combatant. In Reversing district court orders appointing counsel for habeas purposes, ordering private access to counsel, and ordering the government to provide extensive documentation justifying its detention of Hamdi, the fourth circuit held that "the privilege of citizenship entitles Hamdi to a limited judicial inquiry into his detention, but only to determine its legality under the war powers of the political branches." The government's submission of an affidavit setting forth the conditions of Hamdi's capture, the court held, was sufficient. The court noted in particular that the courts' deference to the political branches on national security issues "extended to military designations of individuals as enemy combatants in times of active hostilities, as well as to their detention after capture on the field of battle"(Farmer,2004). Shortly after however, similar deference was exhibited in Rasul v. Bush, in which the D.C. circuit affirmed a district court judgment that it was without jurisdiction to hear the habeas petitions of foreign nationals being held at Guantanamo Bay. In Zadvydas v. Davis, the United States Supreme Court has ruled that the Immigration and Naturalization Service cannot detain indefinitely individuals who have been ordered removed but cannot be repatriated to their homelands. In reaching the ruling, the Court read an "implicit 'reasonable time' limitation" in the statute under which the INS had been indefinitely detaining such persons after the 90-day removal period. Under that reading, the Court held, individuals may be detained only for "periods reasonably necessary to bring about [their] removal from the U.S. [The statute] does not permit indefinite detention." The judicial branch of government is at this time attempting to continue its function as the interpreter of the U.S. Constitution and the authority on the rights of American citizens without inhibiting the actions believed necessary to protect the United States from external threats. This has become an ever increasing difficulty due to the powers of investigation allowed by the president for the purpose of preventing further terrorist attacks on American soil. The recent case of Jose Padilla exemplifies the difficulties faced in deciding the constitutionality of provisions found in the Patriot Act as well as other legislation mentioned. Padilla, an American citizen, was arrested upon landing in Chicago on May 8, 2002 based on a material witness warrant issued in the Southern District of New York. He was transferred to New York and detained. On May 15, the district court appointed an attorney to represent him; she filed a motion seeking his release on the grounds that his detention was unauthorized and unconstitutional. A hearing date was set for June 11. On Sunday June 9 -two days prior to the hearing - President Bush issued a written command to the secretary of Defense concerning Padilla. The president determined, "based on the information available to [him] from all sources," that Padilla was an "enemy combatant," "closely associated with al qaeda, an international terrorist organization with which the United States is at war," and that he possessed "valuable intelligence information." The president's order directed the secretary to receive Padilla from the Justice Department and to detain Mr. Padilla as an enemy combatant. Custody was transferred, and Padilla was moved to a naval brig in South Carolina, where he was held uncharged and without access to counsel. The court held that the president does not have the inherent authority under the constitution to detain American citizens as enemy combatants when they are "seized on American soil outside a zone of combat." The court found Congress's resolution of September 18, 2001 authorizing the president to use force to respond to the attacks insufficient to justify padilla's detention (a dissenting judge noted the irony that the resolution unquestionably authorized the interdiction and shooting of an al qaeda operative but not his detention. This decision was in complete contrast to the Hamdi and Rasul decisions. The issues and concerns raised by the American public and media along with political figures not in support of the Patriot Act already has a remedy in place to remove sections of the act that are deemed unconstitutional or impossible to enforce. It is found in section 2 of the Patriot Act which states: Any provision of this Act held to be invalid or unenforceable by its terms, or as applied to any person or circumstance, shall be construed so as to give it the maximum effect permitted by law, unless such holding shall be one of utter invalidity or unenforceability, in which event such provision shall be deemed severable from this Act and shall not affect the remainder thereof or the application of such provision to other persons not similarly situated or to other, dissimilar circumstances. “As an historical truth, the practice of courts to defer to executive action during wartime is undeniable. If we are facing today a new type of war, however, a war that is transnational and unlikely to end, the continuation of that historical tendency would be unacceptable for two reasons. First, if the crisis were deemed to be unending, judicial deference would erode the rule of law by accepting a curtailment of civil liberties with no prospect of their restoration. On the other hand, if the nonoccurrence of further domestic attacks were to lead courts to a false sense that the crisis were at an end, judicial intervention could jeopardize national security”(Farmer, 2004). Farmer raises a most interesting question and the focus of this paper, how do we as the American people assure the return of war time powers to the American government if the conflict in question has no definitive beginning or end. Congress must set limits or boundaries on just how much of Americas' resources will be delineated under the guise of national security. Also, if war time powers are to be used a declaration of war should be made. President Bush stated in his address to the American people after 9/11 that the terrorist attack on our country was an act of war, but yet no enemy combatant was clear, therefore no declaration of war was given. The declaration of war on Iraq articulated a clear threat to the United States of America, an enemy combatant, and a war zone. The American people knew who we were fighting, they had some idea why we were fighting, and a relative idea of what needed to be accomplished for the war to be declared a victory. There is no explanation for the separation given to the simultaneous conflicts that America is currently engaged. The war in Iraq solidified the missing components needed to justify the war on terror. Technically, the conflict in Iraq could be seen as a single battle front in the war on terror. If so, where is the true enemy, the leader of this army of terrorist, who are we actually fighting? Well, now we have arrived at the true purpose of the Patriot Act. The reason President George W. Bush of the United States of America finds it reasonable to restrict and in some cases erase fundamental constitutional rights is because he does not know who the enemy is. Terrorist can be everywhere and nowhere, they have no distinguishing features or characteristics, terrorism is a mindset that exists. How do you combat a belief? Well, first the right to privacy must be ignored, and then we have to pretend due process never existed. After that, eliminate the check and balance system used to keep any one part of government from possessing too much power, add in complete control over defense budgeting, and the entire United States military at his command and we have a successful democracy turned dictatorship. So what if the president asks congress for their opinion, the war time powers act allows the president to do whatever deemed necessary to protect his country, this country.
In closing, an excerpt from the Patriot Act Reader: Understanding the Law's Role in the Global War on Terrorism seems an appropriate summation:
“So, how do we wage war against such an enemy while at the same time staying true to our own founding ethics—ethics such as freedom and equality and privacy and human dignity, ethics that seem to be one of the main reasons for our enemies' wrath? These are not new questions. In Federalist No. 3, John Jay writes: “Among the many objects to which wise and free people find it necessary to direct their attention that of providing for their safety seems to be the first.” Being a country that values such things as freedom, we have, several times, faced the question of how to reconcile that freedom with the first object of government—security—especially in wartime.
One hundred and forty years ago Lincoln asked: “Must a government of necessity be too strong for the liberties of its own people or too weak to maintain its own existence?” The answer to Lincoln's question is now, as it was then, a resounding “No!” The Patriot Act, in conjunction with other legislation, strengthened the civil liberties Congress has provided. This includes the expansion of judicial authorization, privacy officers to protect against invasions of privacy, mandatory reports to Congress, and Inspector General Oversight. The Patriot Act has one of the most extensive reporting systems of any piece of enacted legislation.
Whatever the justification for the intrusion, if there are less intrusive means of achieving the same end at a reasonably comparable cost, the less intrusive means ought to be preferred. There is no reason to erode Americans' privacy when equivalent results can be achieved without doing so.
Any new system developed and implemented must be designed to be tolerable in the long term. The war against terror, uniquely, is one with no immediately foreseeable end. Thus, excessive intrusions may not be justified as emergency measures that will lapse upon the termination of hostilities. Policymakers must be restrained in their actions; Americans might have to live with their consequences for a long time.
No new system should alter or contravene existing legal restrictions on the government's ability to access data about private individuals. Any new system should mirror and implement existing legal limitations on domestic or foreign activity, depending upon its sphere of operation. Similarly, no new system should alter or contravene existing operational system limitations. Development of new technology is not a basis for authorizing new government powers or new government capabilities. Any such expansion should be independently justified. No new system that materially affects citizens' privacy should be developed without specific authorization by the American people's representatives in Congress and without provisions for their oversight of the operation of the system. Any new system should be, to the maximum extent practical, tamper-proof. To the extent the prevention of abuse is impossible; any new system should have built-in safeguards to ensure that abuse is both evident and traceable.
Similarly, any new system should, to the maximum extent practical, be developed in a manner that incorporates technological improvements in the protection of American civil liberties finally; no new system should be implemented without the full panoply of protections against its abuse. As James Madison told the Virginia ratifying convention, “There are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.”
These theoretical considerations and operational guidelines, while useful in constructing an ex ante heuristic for assessing new programs and law, are only of real value in application to concrete problems and proposed solutions. It is not enough to condemn every governmental initiative. Nor is it correct to give the government a blank check for all actions designed to repel terror. Rather, each program and proposal must be carefully assessed on its own individual merits” (Rosenzweig P., Carafano J., Kochems A., 2004).