The United States (U.S.) was attacked on 9/11 in such a way that even surpasses the attack on Pearl Harbor. At least during WWII the country knew who its enemies were. However, although the terrorist group(s) that attacked and caused the collapse of the Twin Towers are known, they are hidden. That leaves the U.S. Government scrambling to find these concealed enemies that are either still on U.S. soil or planning more attacks from abroad.
It will be necessary to look at the ethical dilemmas involved with the USA PATRIOT Act (“Epic.org”, n.d.), in regards to authorization of surveillance and search and seizure implications. In addition, it will also be essential to look at the Homeland Security implications, tying in an analysis of the Just War Theory to both sides. Big Brother’s involvement in their personal privacy has always been a worrisome topic among U.S. citizens and people are still angered by the constant change of privacy rights in today’s world. Yet, exchanging civil liberties for personal security was easier to do and to accept after those four planes were high-jacked on 9/11.
The PATRIOT Act was quickly drafted and passed by Congress in October of 2001 after the horrific events of September took place (Department of Justice [DOJ], n.d.). There are many ethical implications in regards to the content of the PATRIOT Act that goes against the very foundation of the Bill of Rights.
One section of the PATRIOT Act that many argue is unconstitutional under the Fourth Amendment is the ability to conduct unreasonable search and seizures. These debates stem from the extended surveillance and intelligence-gathering powers listed in Title II of the Act. Of a serious note is the Act’s amendment to the 1978 Foreign Intelligence Surveillance Act (FISA) and the expanded use of electronic surveillance techniques to internet communications (Panetta, n.d., p. 169). In addition, this section of the Act discusses increased surveillance methods and law enforcement’s use of surveillance, including roving wiretaps and search warrants obtained for multiple locations where possible terrorist-related activities have occurred.
John Podesta, White House Chief of Staff from 1998 – 2001, summed up the dangers of the PATRIOT Act in 2002:
‘The events of September 11 convinced overwhelming majorities in Congress
that law enforcement and national security officials need new legal tools to fight
terrorism. But we should not forget what gave rise to the original opposition -
many aspects of the bill increase the opportunity for law enforcement and the
intelligence community to return to an era where they monitored and sometimes
harassed individuals who were merely exercising their First Amendment rights.
Nothing that occurred on September 11 mandates that we return to such an era.’ (Johnston, 2006., p. 5)
According to a Strategy Research Project by Howard A. Johnston, the section involving FISA goes too far in its improvement of information sharing between law enforcement and intelligence agencies, including excessive provisions. The key concern is that citizens will lose the right of due process and be examined or put under surveillance unsuspectingly, all in the name of fighting terrorism (Johnston, pp. 3-5).
The original FISA was created with essential protections and safeguards on the domestic level. FISA establishes “’a legal regime for foreign intelligence surveillance separate from ordinary law enforcement surveillance. . . . the FISA requirements for foreign intelligence collection are intentionally looser than those that apply to criminal and domestic investigations’” (Johnston, p. 4). The division between foreign and domestic intelligence is what served to protect the Fourth Amendment rights, which included the need for probable cause before a search warrant is issued and preventing unreasonable search and seizures.
Furthermore, the original FISA had an important balance of power between the different intelligence departments. “An act that removes or limits this balance in favor of the executive branch can potentially endanger the safeguards provided by the judiciary” (Johnston, p. 4). Additionally, the First Amendment is also violated by the very definition of terrorism in the PATRIOT Act. The definition understandably had to be changed to include groups or people that were not sponsored by foreign governments. However, the definition has caused even peaceful organizations in the U.S. to be classified as ‘terrorists’. Terrorism is now defined as any activity that intends to: “imitate or coerce the government”; “break criminal laws”; or, “endanger human life” (Johnston, p. 4).
The American Civil Liberties Union (ACLU) breaks down many of the constitutional violations of the PATRIOT Act, especially “record searches” and “secret searches”. The “knock and announce” rule is one area that has been greatly affected by the PATRIOT Act. The act:
Unconstitutionally amends the Federal Rules of Criminal Procedure to allow the government to conduct searches without notifying the subjects, at least until long after the search has been executed. This means that the government can enter a house, apartment or office with a search warrant when the occupants are away, search through their property, take photographs, and in some cases even seize property - and not tell them until later. (American Civil Liberties Union [ACLU], 2010)
Furthermore, under the PATRIOT Act, the FBI can issue a wiretap without probably cause, which goes against the very foundation of the Fourth Amendment. Again, FISA has been amended to allow a search when the “significant purpose” is intelligence versus the need to specifically gather only foreign intelligence (ACLU, 2010).
There is definitely concern with how easy domestic intelligence agents can retrieve personal information during a criminal investigation. Lack of the necessary probable cause in order to wiretap and conduct physical searches of property has scared many, especially those who could be convicted for performing actions that are protected by the U.S. Constitution. The foremost unease comes with Section 218 of the PATRIOT Act which amends the FISA so the FBI “can secretly conduct a physical search or wiretap primarily to obtain evidence of a crime without proving probable cause of criminal activity” (Johnston, 2006, p. 7). Certain changes to the PATRIOT Act would remove some of the violations to the U.S. Constitution and still allow for easier access to terrorists.
On the other hand, the intelligence communities intensely argue that the PATRIOT Act as a whole is the only way to keep the nation safe from foreign and domestic terrorists. The Homeland Security implications of the Act are serious in regards to protecting the nation from terrorist activity.
According to Amitai Etzioni, proof that the PATRIOT Act works is in the very fact that a terrorist attack has not occurred on U.S. soil in the past 11 years (Etzioni, 2011). However, the central argument has to do with what is considered reasonable.
Indeed, this key thesis is reflected in the Fourth Amendment, which holds that there be no unreasonable searches and seizures. That is, the Constitution recognizes that some searches do not violate rights and are fully legitimate. And it provides a criterion for determining which are acceptable: those that a reasonable person will recognize as proper. (Etzioni, 2011)
Obtaining warrants to locate terrorists, even with delayed notice, should be considered reasonable. Additionally, the individual security measures in the Act should be considered on the basis of their reasonableness rather than reproving or accepting the act on a whole. The “sneak and peek” clause is one of the most controversial. It originally was not clear how long the delay of notice was allowed; however, it is now approved at 30 days unless 90 days is justified. It is agreed that the Act was originally enacted with great speed; however, it has since been reviewed several times (Etzioni, 2011).
Christopher Wray, of the U.S. Department of Justice and Homeland Security, staunchly defended the PATRIOT Act back in 2003, including the improved ways of sharing information among intelligence agencies due to FISA’s amendment.
Such enhanced information sharing has proved effective: For example, it led directly to the indictment of Sami Al-Arian and other alleged members of the Palestinian Islamic Jihad (PIJ) in Tampa, Florida. PIJ is believed responsible for over 100 murders, including those of two young Americans in Israel: 20-year old Alisa Flatow, who was killed in a bus bombing, and 16-year old Shoshana Ben-Yishai, who was shot on the way home from school. (Wray, 2003)
Wray continued to explain how this ability to share crucial intelligence and law enforcement information has interrupted terrorist operations in the early phases, has led to more prosecutions for terrorism offenses, and “ultimately saves American lives” (Wray, 2003).. Wray also discussed the delay of notice in regards to search warrants, explaining that delay could only be used in certain circumstance, for instance to protect witnesses. The PATRIOT Act simply codified case law “in this area to provide certainty and nationwide consistency in terrorism and other criminal investigations” (Wray, 2003).
Furthermore, Wray gives more examples of how well the law has worked so far. For instance, in a recent terrorism case that involved drugs, a court issued a delayed notice warrant to search an envelope that had been mailed to the suspect of an investigation. The warrant allowed officials to continue the investigation without the necessity of an ongoing wiretap. The search confirmed that the target was directing money to a connection of the Islamic Jihad organization in the Middle East, eventually arresting the suspect, who was charged and notified of the warrant (Wray, 2003).
Dick Thornburgh points out in the Albany Review the important difference between the abuses that FISA is protecting against and the actions of intelligence officers. He explains that law enforcement officers seek evidence to use in court and convict “after” a crime is committed; whereas, on the other hand, intelligence officers seek the evidence to “prevent” a crime, like a massive terrorist attack, from occurring in the first place. The Act’s central purpose is to prevent such tragic attacks like September 11th from ever occurring again, regardless of whether or not the standards of probable cause appear to be altered. “The fact that evidence obtained under various provisions of the Act might be inadmissible in court should have no bearing, as the intent is to stop terrorist activity from ever taking place” (Thornburgh, 2005, p. 807).
Regardless of whether or not one objects to the actions of Homeland Security, they are being justified by the Just War Theory. First, looking at the War on Terror as a whole, Dale T. Snauwaert discusses the complexities of the theory. However, his analysis concludes that the War on Terror, specifically the Bush Doctrine of preemption in relation to Global Strategy, is not morally justified as it fails in an element of the Just War Theory.
Implicit in this strategy is a very important linkage: the declared enemy is not only the terrorist but also anyone, including States, that aid them. President Bush articulated this principle on the night of 9/11: “We will make no distinction between the terrorists who committed these acts and those who harbor them.” In combination with the doctrine of preemption this linkage to States is radical, for it declares the right to violate the principle of nonintervention that is central to the nation-state system. (Snauwaert, 2004, p. 123).
The invasion of Iraq, according to Snauwaert, is what fails the application of the Just War Theory. “Being driven more by the global strategy than by the principles of just war theory, the choice of the use of force in Iraq, the military invasion, was not a last resort” (Snauwaert, p. 132). The lack of evidence of weapons of mass destruction proved that the situation was not one of imminent danger and therefore fails the test.
Additionally, the war’s objectives have come at a cost to U.S. civilians as well. Brian Moresonner discusses this topic in a review of Paul Gilbert’s book entitled New Terror New Wars. “An example of this would be the controversy over the United States' PATRIOT Act and its impacts on civil liberties and freedoms for US citizens. . . . the discrimination principle becomes muddled in the "War in Terror" when the lines between civilians and combatants blur” (Moresonner, 2004, p. 1).
Understanding public opinion in this area is also important. In one study, the following question was asked: “How much are American citizens willing to sacrifice to make themselves feel safe from the threat of terrorism?” (Davis & Silver, 2004, p. 29). The results were complex, but can be summed-up by the following:
Americans are not ready to concede all of their civil liberties and personal freedoms in order to feel secure from the terrorist threat. While many citizens are willing to trade off civil liberties for greater security, Americans as whole adopt a moderate position. But a sense of threat makes for more reluctant defenders of constitutional rights across the political spectrum and among whites, Latinos, and African Americans. (Davis & Silver, p. 43)
Moreover, trust in the federal government is conditioned on the level of threat that exists. Support for civil liberties will be high until another attack occurs, something everyone wants to prevent from happening.
The PATRIOT Act was drafted in haste after a tragedy like no other hit the U.S. Opponents of the Act have justifiable concerns over its enforcement: from gaining access to private e-mails from internet companies, to searching a home and not notifying the suspect until 30 to 90 days later, sometimes not until charges are filed. Furthermore, the key concern is that even non-suspects will be searched for any reason that falls under the Act. It could be an angry letter about the government. Any action that may “imitate or coerce the government”; “break criminal laws”; or, “endanger human life” can be treated as a potential terrorist attack.
However, the intelligence community argues that not only are these actions necessary, but it is the only way to prevent another massive tragedy like 9/11 from occurring in the future. In addition, the delay is only used to protect witnesses and other people involved in the criminal activity.
Most importantly, the main reason the PATRIOT Act should not be amended is due to the very fact that it has worked to prevent crime. Numerous people have been caught ordering equipment to build bombs, ect. only to be stopped at the very last moment. In these cases, usually intelligence officers were the ‘hook-up’ to get the supplies and it would not have worked without the passage of the PATRIOT Act.
In addition, another important point by the intelligence field is the fact that they are ‘preventing’ a crime from occurring versus investigating a crime ‘after the fact.’ For that reason, there should be no complaints about the validity of the Act.
Conversely, it does not appear that the War on Terror is warranted under the Just War Theory. Once terrorism was used as the key reason to invade another country, the theory was defeated. The invasion of Iraq voided the moral justification for the war, a key element of the Just War Theory. In addition, the line between civilians and combatants became distorted under the Act, affected the theory as well.
Everyone would agree that the PATRIOT Act is a necessity when it comes to fighting the War on Terror and preventing a future disaster from occurring; however, most would admit that changes to the law need to take place. Although the law keeps being re-approved, protections of civil liberties are important enough to make even the slight changes to the Act. U.S. citizens need to be given a peace of mind that their words and/or actions will not be used against them, for purposes of an investigation of terrorism, when it really is a separate criminal investigation aimed directly at them for either valid or invalid reasons. The Fourth Amendment and the Bill of Rights should be protected to the greatest extent possible.
References
ACLU. (2010). Surveillance under the USA PATRIOT Act. ACLU.com. Retrieved from
Davis D.W., & Silver B. D. (2004). Civil liberties vs. security: public opinion in the context of the terrorist attacks on America. American Journal of Political Science, 48. Retrieved from
Epic.org (n.d.). USA PATRIOT Act (H.R. 3162). Epic.org: Electronic Privacy Information Center. Retrieved from:
Etzioni, A. (n.d.). In defense of the PATRIOT Act. The National Interest. Retrieved from
Johnston, H. (2006). The PATRIOT Act and civil liberties: a closer look. USAWC Strategy Research Project. Retrieved from
Moresonner, B. (2004). “Just War Theory” and the war on [t]error. The Ornery American. Retrieved from
Snauwaert, D.T. (2004). The bush doctrine and just war theory. OJPCR: The Online Journal of Peace and Conflict Resolution, 6.1. Retrieved from
Thornburgh, D. (2005). Balancing civil liberties and homeland security: does the USA PATRIOT Act avoid Justice Robert H. Jackson’s “Suicide Pact”? Albany Law Review. Retrieved from
Wray, C. (2003). Enforcement of the USA PATRIOT Act: protecting our homeland security from terrorist attacks. The Progressive Conservative, USA. Retrieved from
