1. How does the creation of the Department of Homeland Security (DHS) affect the resources traditionally designated for local criminal justice organizations?
The creation of the DHS has had little effect on the resources traditionally designated to local criminal justice organizations. Most crime in the U.S. is local in original and application. Accordingly, the funding and resource allocation for law enforcement and the courts is derived from state, county or city budgets. Those budgets have no influence over or can be influenced by DHS’s budget which is funded by the federal government. The one area where DHS’s effect may nevertheless be substantial is in cases where the terrorist threat is both a danger to national security as well as a criminal law matter such as in the case of the 2013 bombing of the Boston Marathon. Investigations of the bombing were initially carried out by local law enforcement but federal authorities took over once it was determined that the attack was terrorist related.
2. Are there too few resources to fight terrorists and traditional criminals?
Yes. There is a finite amount of resources and therefore the more resources spent to fight terrorism will necessarily reduce the amount spent in the fight against traditional criminals.
3. Who should pay the burden for investigation, apprehending, prosecuting, convicting, sentencing and incarcerating terrorists?
Since the majority of terrorist cases are handled by the federal authorities, the U.S. government through the relevant organizations (DHS, Department of Justice, and FBI) should pay the burden of the costs. Federal authorities are the primary level to handle terrorist cases because the cases are so often internationally based or involve actions that cross state lines. However, in those cases were the case is primarily centered in that state or local community such as a case of domestic terrorism. In those circumstances, the state and local government should pay the majority expenses to resolve the case.
4. Should Osama bin Laden have been taken alive?
Theoretically there were countless advantages and benefits (such as intelligence on al Qaeda operations) that could have been realized if Osama bin Laden was taken alive, practically speaking; however, it would have been impossible. The extremism of his followers would most likely lead to further attacks against the U.S. in order to free him, terrorize the public into forcing the government to release him or simply as retribution for capturing him.
5. What are the due process questions in light of the creation of the DHS?
There are no due process issues with the creation of the DHS . As a U.S. government department of the Executive Branch, it is duty-bound by the U.S. Constitution and the same federal laws and regulations that bore on all other departments and government employees. In fact, the creation of the DHS should actually enrich due process rights because it is tasked with finding ways to balance protecting the nation against terrorist threats while also protecting the rights of its citizens.
6. Should due process protections matter in the fight against terrorism?
Absolutely. Providing the accused with due process protections is a fundamental aspect of the U.S. criminal justice system and one of the elements of the system that has been imitated across the world. Moreover, the U.S. was founded on the notion that all human are guaranteed certain inalienable right one of which is the presumption of innocence and the opportunity to prove their innocence.
References
Guiora, A.N. (2012). Due Process and Counterterrorism. Emory International Law Review, 26, 163-188.
