Tuesday, April 26, 2011

Laws Targeting Terrorists: A Civil Liberties Debate

“Once you familiarize yourself with the chains of bondage- you prepare your limbs to wear them” –Abraham Lincoln

The U.S. PATRIOT Act was passed (Oct. 26, 2001) in response to the September 11, 2001, terrorist attacks on the United States. Simply put, the Act aims to provide law enforcement officials with the tools needed to prevent further attacks. The Act added new provisions to obstruct terrorism that were previously not in place. However, many argue, such as the American Civil Liberties Union (ACLU) that the Act “went too far in its unfettering of the federal government and endangering the civil rights of American citizens as well as immigrants.” The Act—specifically sections 202 through 225—states that government can intercept electronic signals relative to national security and terrorism issues. However, this can also impact state and local law enforcement—which after a judicial review can order a search warrant or court order. Note: search warrants are used to seize that which an officer believes already exists; court orders are used to seize future conversations and data.

According to the U.S. PATRIOT Act, the government can now use pen, trap, and trace orders to intercept information about your Internet communications as well. By serving a pen trap, or trace orders on a person’s ISP or email provider, the police can get:

• All email header information other than the subject line, including the email addresses of the people to whom you send email, the email addresses of people that send to you, the time each email is sent or received, and the size of each email that is sent or received.
• Your IP (Internet Protocol) address and the IP address of other computers on the Internet that you exchange information with, with timestamp and size information.
• The communications ports and protocols used, which can be used to determine what types of communications you are sending using what types of applications.
• The police might also use pens, traps, and traces to get the URLs (web addresses) of every website a person visits, allowing them to track what a person is reading while they are surfing the web.
• (Decided Feb. 2, 2006 by U.S. District Judge Thomas Hogan in Washington, D.C.) Judge Hogan approved the Justice Department’s request that under the Patriot Act they be allowed to do e-mail monitoring without any evidence of criminal behavior
• Apparently, the Department of Justice’s policy on it is to freely collect information about what site you are visiting using pens, traps, and traces, but to obtain a wiretap order before collecting information about what particular page or file you are visiting. However, there’s no way to confirm that federal authorities actually follow this policy in all cases, and some have serious doubt as to whether state authorities do.

Aside from the U.S. PATRIOT Act, other recent anti-terrorist laws have been enacted which further cut-away at the civil liberties of U.S. citizens. In a terrorist-related case, the United States Supreme Court took a shot at freedom of speech in June 2010, by a vote of 6-3 on a provision of law making it a federal crime to “knowingly provide material support or resources to a foreign terrorist organization,” even if the “support” consists only of “expert advice or assistance” for “lawful, non-violent purposes”—in other words, political speech. Another step was recently taken that further erodes Constitutional Law, allowing government to target and kill Americans; bypassing due-process. This was done when the Obama Administration authorized the targeted killing of an American citizen, the radical Muslim cleric, Anwar al-Awlaki; who is believed to be an operative of Al Qaeda. While no one wants al-Awlaki, and other radicals who have declared war on America, captured more than me; the stand in this article is simply to identify the unprecedented powers that the government has and is taking beyond the U.S. Constitution.

In yet another recent decision targeting terrorism, the Obama Administration gave law enforcement the powers to bypass the long-standing Miranda protections for American suspects. This was done by adding terror suspects to the one exception to the Miranda protections: the public safety exception. The public safety exception was passed in 1984, and it applies where circumstances present a clear and present danger to the public’s safety and the officers have reason to believe that the suspect has information that can end the emergency. “It looks like to me they're trying to find this middle ground between saying the Constitution applies with full force and the Constitution doesn't apply,” says Sam Kamin, a professor of criminal law and procedure at Sturm College of Law in Denver who has written about terrorism interrogations. “It seems to be a deliberate strategy.”

Terrorists are viewed as war criminals, as well they should be—ideally—and are not subject to the same constitutional rights as every other American citizen. The problem here is that the U.S Government, through this, has been able to bypass many of the constitutional provisions, enabling extraordinary power over not just terrorists, but its citizens as well. This can be viewed as a problem on many fronts. Who’s to say that these new government powers will not be used to target American citizens that are not terrorists, but covertly and intentionally perceived to be? Once the flood gates are opened—i.e. allowing government to target and kill an American citizen without due-process—there is no going back.

Anti-terrorist laws are quite new to the United States. Previous to the 9/11 attacks the U.S. had been a slow ramp-up of these anti-terrorist strategies in place. In 1982, President Reagan issued the National Security Decision Directive Number 30: Managing Terrorists Incidents. This established the first working terrorist incident group. In 1995, President Clinton issued Presidential Decision Directive 39, which called for a critical review of nation’s infrastructural vulnerabilities. In 1998, President Clinton issued Presidential Decision Directive 62, protection against unconventional threats (PDD 62, 1998) and Presidential Decision Directive 63, critical infrastructure protection (PDD 63, 1998).

After 9/11, obviously the laws changed dramatically. Its not that these new laws don’t help fight terrorism better, it’s more that certain provisions have the potential to be disastrous for any American citizen. The problem is that the previous statutes on anti-terrorism were outdated and crimes previously in place to address terroristic acts did not do so sufficiently, particularly with the emergence of the internet and its widespread usage. As we see with several provisions in the U.S. PATRIOT Act, they do provide the government with the necessary tools to help combat terroristic attacks more effectively. I happen to believe that the U.S. Constitution is one of the greatest documents ever written, and I am strongly opposed to such widespread alterations. Until we can come up with a better way to fight terrorists we will have to settle for these new anti-terrorist laws and pray that big-government does not use its power unjustly against its own citizens. The fact that the terrorists have aided in the alterations of our most precious document, we can safely say that it's: terrorists (1), America (0).

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