ABSTRACT
In the aftermath of the September 11, 2001 terrorist attacks, Congress and President Bush drafted, passed and enacted a number of laws that were focused on improving the nation’s security from terrorist attack and upgrading its ability to search for, identify, and eliminate terrorist threats at home and abroad. Two to the most important and far-reaching laws to come from the political and legislative action of the Fall were the Uniting and Strengthening America by Providing Tools Required to Intercept and Obstruct Terrorism Act of 2001(USA Patriot Act) and the Homeland Security Act of 2002. While the USA Patriot Act and the Homeland Security Act of 2002 have formed the backbone of terrorism laws in the United States, they are not without their problems, especially in terms of how far they infringe upon the rights, freedom and liberties of the public.
USA Patriot Act
As its full name suggests, the purpose to the USA Patriot Act is to provide federal, state and local authorities with the means to find, monitor, target, and eliminate terrorists before, during or after they plan to take action. In one of the shortest amounts of time to pass a law, from proposal to enactment, the USA Patriot Act was signed into law on October 26, 2001; a little over a month after the September attacks. Under the USA Patriot Act “means” refers to the full spectrum of tools, procedures, and authorities that government officials thought would be necessary to protect the nation from terrorism.
One of the underlying issues that facilitated the passage of the USA Patriot Act was the belief that the current laws either did not provide government officials with the flexibility to fight an asymmetrical, non-traditional and unconventional enemy that literally be anyone; or in essence obstructed and prohibited government authorities from fulfilling their duties of keeping the nation safe and secure.
According the USA Patriot Act, in effect, provides federal, state, and local government officials with: (1) comprehensive authority to conduct overt and covert search and surveillance operations both domestically and internationally, and (2) removes or diminishes protective measures that have traditional been enjoyed by the public and enforced by the courts against the overly aggressive or abuses of government powers. While Congress, understanding the rush that went into passing the law included “sunset” rules, or automatic expiration dates for some of the act’s provision without renewal; many more provisions are permanent (Herman, 2006). Moreover, in the year since its passage, Congress has voted to renew or slightly amend several of the more controversial sunset provisions.
The USA Patriot achieves its goals in two fundamental ways, namely through the creation of new authorities or by amending existing one. For example, the USA Patriot added a new definition of domestic terrorism; making terrorism now inclusive of any act that violates a criminal law with the intention of “intimidating or coercing a civilian population, influence a government or affect conduct of the government by certain means” (Solove et al., 2006). On the other hand, the act amended pen register and trap-trace orders laws, or the authorities that allow government officials to know what numbers were dialed from and received by a phone, so that they can be initiated on phones anywhere in the country rather than on a phone in the jurisdiction where the crime where the crime is being investigated (Solove, et al., 2006)
One of the USA Patriot Act’s more publically controversial positions are its amendment to the Foreign Intelligence Surveillance Act (FISA). FISA was passed in 1978 by Congress mainly as a way to maintain a barrier between government domestic surveillance activities that focus on domestic targets, such as criminal investigations; and international targets such as in foreign spying operations. Under FISA the government was given more flexibility to overcome legal protections that are enjoyed by the public. Prior to the USA Patriot Act, FISA surveillance was only allowed when the collection of “foreign intelligence” was the “primary” purpose of the operation. As amended by the USA Patriot Act, however, FISA surveillance is now permitted when the collection of foreign intelligence is a “significant” purpose of the operation (Logan, 2009). What this means, practically speaking is that as long as the government can show that a significant purpose of a surveillance operation was the collection of foreign intelligence it can conduct operations against average citizens as it pleases. Surveillance activities can include accessing a monitoring one’s electronic communications, performing covert searches of one’s property and effects, obtaining records, and tapping one’s phone. While this provision may make sense when considering the fact, the modern terrorism can indeed come from anywhere including American citizens, its scope it too broad and there are too few limitations
Homeland Security Act
Immediately after the September 2001 terrorist attacks, a review of U.S. security revealed that the nation’s civil defense system was fundamentally outdated, especially in providing security against a modern international terrorist threat. One to the primary vulnerabilities that was discovered that civil defense responsibilities had been outsourced to a broad range of government departments and agencies, which were unable or unwilling to share information and coordinate a response. As a result, President G.W. Bush established the Office of Homeland Security (OHS) within the White House with the responsibility of coordinating the domestic response to terrorism. After several months in operation, it became clear to some official that the OHS lacked the authority to effective achieve its mission. Consequently, Bush proposed to Congress the establishment of the Department of Homeland Security (DHS) which would create a permanent civil defense force to ensure the nation’s domestic security (Bush, 2002).
The Homeland Security Act is a result of the presidential and Congressional interactions. The primary purpose of the Homeland Security Act was, as mentioned, the creation of the DHS. The law accomplished this by consolidating over 20 federal agencies into the DHS. Some of the more important former agencies included the Coast Guard, Secret Service, Federal Emergency Management Agency, and the Immigration and Naturalization Service. In addition, the Homeland Security Act also created the Transportation Security Agency.
One of the more controversial provisions of the Homeland Security Act is that it gives the head of DHS, the Secretary of Homeland Security, the authority to direct and control investigations that requires access to information needed to investigate and prevent terrorism (EPIC, 2002). This is controversial because it in essence allows the secretary to authorize DHS or any of the agencies under its control to access the personal information of citizens, without their permission or authorization if he deems that it is necessary to the investigation of terrorism. Again, while it is understandable that government have reasonable ability to access information that can lead to the stopping of a terrorist act or the capture of a terrorist, under the Constitution, reasonable government action is defined as having probable cause and a warrant issued by a neutral judge.
Conclusion
One of the key issues surrounding the terrorism laws in the U.S. is how to balance the duty of the state to provide protection to its citizens and ensure the security of the community with the fundamental rights of the public to enjoy freedom, liberty and protection from unreasonable government actions. The Constitution perhaps provides the essential guidelines on how to achieve a suitable balance. These guidelines have existed since the first days of the nation; and there is little proof currently that they cannot continue to serve the government and the people effectively.
References
Bush, G.W. (2002, Jun.). The Department of Homeland Security. Retrieved from https://www.dhs.gov/sites/default/files/publications/book_0.pdf
Electronic Privacy Information Center (EPIC). (2002). Homeland Security Act of 2002. Retrieved from https://epic.org/privacy/homeland/homeland_security_act.html
Herman, S.N. (2006). The USA PATRIOT Act and the Sub-Majoritarian Fourth Amendment. Retrieved from https://www.aclu.org/files/pdfs/about/herman_usapaf.pdf
Logan, C. (2009). The FISA wall and federal investigations. Retrieved from http://www.law.nyu.edu/sites/default/files/ECM_PRO_062708.pdf
Solove, D.J., Rotenberg, M., & Schwartz, P.M. (2006). Information Privacy Law (2nd ed.). New York, NY: Aspen Publishing.
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act – USPA. Retrieved from http://www.gpo.gov/fdsys/pkg/BILLS-107hr3162enr/pdf/BILLS-107hr3162enf.pdf
