Balancing Civil Liberties and National Security
One of the founding fathers to the United States, Benjamin Franklin, once stated that “Those who are willing to trade essential liberty for temporary security deserve neither liberty nor security”(Charge.org, n.d). The notion of maintaining a balance between Civil liberty and national security rests on an underlying assumption that the rights of an individual ought to be balanced against the interests of the wider society. In countering terrorism, however, these same individual rights and liberties must be sacrificed with the intent of gaining security for the greater community. Interests of both civil liberty and national security are never mutually exclusive, and as such, striking a balance between the two is a necessity. The idea behind this balance is that civil liberties may mean little to nothing in an insecure nation. In the wake of 9/11, the US realized that it was in a war with an enemy who did not believe in human rights or collateral damage (Kleinerman, 2007). In essence, this fateful development meant a tightening of the entire security system to seal all the loopholes that made the nation susceptible to a terror attack. However, in doing so, another challenge arises, that ensuring that in the attempt to secure the country from terrorism, America’s way of life is preserved. Striking a balance between protecting the nation’s tangible assets and safeguarding America’s way of life characterized by civil liberties that form the foundation of the country is a challenging endeavor (Sutherland, 2005). In other words, even as the nation looks into tackling the national security threats, it is equally necessary that the liberties upon which the country was built are not trampled on. Responding to the 9/11 terrorist attack, Congress passed the USA Patriot Act for the sake of enhancing national security that necessitated the recalibrating of the balance between civil liberties and security (Kleinerman, 2007). Policies that were birthed by the USA Patriot Act have consistently proven to be crucial in combating terrorism. However, they have been criticized as being into conflict with the need for protecting America’s Constitutional rights to privacy and due process. This paper seeks to explore the privacy and surveillance concerns raised by the passing of the USA Patriot Act, more so the surveillance policy of the Act.
Terrorism prevention, investigation, and prosecution of terror culprits the law enforcement agencies in place remain urgent priorities to the U.S. Long before the passing of the USA Patriot Act, intrusive government surveillance concerns had been raised in multiple occasions by the United American Healthcare Corp (UAHC). UAHC categorically criticized the government for overstepping its constitutional realm in stopping foreign espionage by employing wiretap techniques (Sievert, 2007). These concerns led to the enactment of FISA in1978 to establish a barrier domestic criminal investigation and foreign intelligence within the USA. Initially, under FISA then, conducting surveillance on foreign powers or their agents required permission from a ‘secret’ court following low-standard scrutiny in comparison to the typical criminal justice system standards.
The USA Patriot Act on amending the FISA
The USA Patriot Act on amending the FISA gave the Attorney General higher authority to permit under his jurisdiction domestic criminal surveillance. The Act also grants authority to investigators to utilize new surveillance methods. What this means is that under the USA Patriot Act, the NSA and FBI are permitted by law to carry out phone and Internet surveillance (Bergen et al. 2014). Additionally, the Act grants these government officials permission to conduct ‘sneak and peek’ searches whereby they are allowed to carry out a search in a property only to inform the property’s owner about the search after the investigation. The Act also permits the NSA to gather metadata in bulk from phone calls made from and to the US regardless of whether the involved citizens are part of the investigation or not (Bergen et al. 2014). Although terrorism threat requires some changes in the way studies are carried out, the wisdom behind these changes remains questionable in as far as upholding civil liberties is concerned. These changes must be consistent with the fundamental principles of the US justice system and not in violation of the constitution, which guarantees due process, right to counsel, and judicial review.
Apart from permitting privacy infringement on Americans, the policy is also slowly eroding the long-held vision between law enforcement agencies and the intelligence. By authorizing consultation among these security agents relating to information that is retrieved from physical searches or electronic surveillance for terrorism-related inquiries, the Act makes the entire investigation procedure prone to abuse. Permitting the use and installation of trap and trace devices or a pen register anywhere within the US through an ex parte court order raises a lot of questions regarding individual civil liberties (Sutherland, 2005). To make the situation even dire, the Act permits the NSA to receive warrants from FISA courts to carry out electronic surveillance on suspects without providing any link that connects the person to any foreign power or terrorist group (Bergen et al. 2014).
The Patriot Act violates the Fourth Amendment to a great length and, as such, should be re-looked. The Fourth Amendment to the US constitution observes that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” (Charge.org, p. 11 ). To a greater length, the USA Patriot Act means the exact opposite of what is envisaged in the constitution. As such, although its original intent was to protect Americans against terrorism, the USA Patriot Act has left more citizens unprotected against federal agents who abuse these same powers as they investigate innocent Americans. Since the Act is not entirely controversial and some parts of it have had some benefits for the nation, it would not be the best approach to repeal it entirely, but it should be expired in parts more so those that directly violates the civil liberties of Americans.
When some parts of the Act are expired, it would be worth to note that the dignity and liberty of Americans will remain following the end of oppression they face on the hands of rogue federal agents. In expiring part of this policy, it is not likely to leave America susceptible to terrorism since, at the time, the federal government has superior intelligence-gathering tools that can be used to investigate terrorism without having to sacrifice the liberty of the people.
In conclusion, therefore, in as much as security concerns are against America are concerns for all Americans, it is essential that a balance is maintained between how much of the peoples’ liberty is to be sacrificed on the grounds of national security. As discussed, the policy that is currently in place grossly violates the constitution by prioritizing safety at the expense of the rights and freedoms of Americans. To achieve a balance between these civil liberties and national security, it would be prudent to pursue more creative security and legislative initiatives with clear guidelines on the repercussions of individuals or agencies who are found guilty of abusing them.
Sutherland D. W. (2005), Homeland Security and Civil Liberties: Preserving America’s Way of Life. Notre Dame Journal of Law, Ethics & Public Policy, Vol. 19, pp.289-308.
Charge.org, (n.d), Abolish-Repeal the Patriot Act-The Surveillance State Repeal Act,Charge.org
retrieved from https://www.change.org/p/united-states-inc-president-barack-obama-abolish-repeal-the-patriot-act-the-surveillance-state-repeal-act
Kleinerman, B. A. (2007), 9/11, the Liberty/Security Balance, and the Separation of Powers.
Criminal Justice Ethics, Vol. 26, 1; Research Library pg. 59.
Sievert, R. J. (2007), PATRIOT 2005-2007: TRUTH, CONTROVERSY, AND CONSEQUENCES. Texas Review of Law & Politics Vol. 11, 2; Research Library pg. 319
Bergen, P., Sterman, D., Schneider, E., & Cahall, B. (2014). Do NSA’s Bulk Surveillance Programs Stop Terrorists? National Security Program. New American Foundation. Pp. 1-32.
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