Ben Franklin said, “those who give up liberty for security deserve neither” (McEntire, 2009), but clearly without security liberty stands vulnerable. Below are some concerns regarding the balance of security and civil liberties. In war situations civil liberties do not exist if removed by the President, a controversial Martial Law or alleged executive power. The War Powers Act is credited with concentrating power in the White house and is a hotly debated topic. Basically U.S. leaders do what they want is the complaint. Is there a strong enough international community to meaningfully challenge or constrain superpowers?
The U.S. Patriot Act contains many questionable clauses from a U.S. constitutional point of view. Woods, New York Times Best Seller writes,
“Unfortunately for [John] Yoo, he will not find any support for his views on executive power and the Vesting Clause in the state constitutions drawn up after 1776, in the Federalist, or in the state ratification debates. Nowhere in the state constitutions do we see any indication of an intent to vest the executive with an array of unspecified powers beyond those that were expressly mentioned. In Federalist #69, Alexander Hamilton argued that the American president would be much weaker than the British king, and cited the specific list of powers the Constitution grants the president. That argument would have been absurd and dishonest if the Vesting Clause had given the president an additional reservoir of powers beyond those Hamilton catalogued. Curtis Bradley and Martin Flaherty, writing in the Michigan Law Review, conclude that “in the thousands of pages recording these debates the argument that the Vesting Clause grants the president a general foreign affairs power simply does not appear.” In fairness Yoo, the then Department of Justice Attorney whom helped Rumsfeld and others craft legislation between 2001 and 2003 which eventually passed in Congress, was merely one of many that jumped on the fear based band wagon in response to terrorism which ultimately created many more problems including torture and decreased in civil liberties generally in the U.S. and those captured or killed by U.S. forces.
“In short, there is no constitutional support for the presidential war powers claimed by mainstream left and right. That’s why they usually wind up claiming that the congressional power to declare war is “obsolete.”
Woods goes on to write,
“The War Powers Resolution is incoherent. Section 2(c) provides that the president’s power to initiate military action is limited to “(1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” But at the same time, it authorizes the president to introduce military force for up to 90 days for any reason at all, which is obviously unconstitutional.” (Woods, 2015)
What does this all this mean for civil liberties? It means that mistakes are often and commonly made by those elected officials whom misinterpret the Constitution, for which to date none have been held accountable. The nature of the mistakes include a long list of illegal wars and trespasses of what in a strict sense would otherwise be protected under a living constitution.
The popularized terms security and peace have become so distorted that those ideas warrant defining some parameters for their meaning. The facts are that the blame game and resulting policies have not made anyone safer. We don’t need rules to permit people to break them. Plenty of evidence of espionage and domestic spying exists, thus the broader authorizations are more a public distraction in the theater of politics. Anyone leading you down a path of trading off your liberty for security is trying to add a bill on your monthly expenses. It reminds me of films where tough guys smash a window of a business then show up the next day and tell the owners every month they are expected to pay them to prevent the window from being smashed. The very purpose of terror is to instill fear. If you show them it is working by restricting liberties, the terrorists win. Thus, my argument is not to surrender to the paralysis of fear, not to pass laws based cemented on fear, but to face with courage and preserve liberty and freedom, not degrade it. The constitutional question of Martial Law and executive power of Presidents really deserves some clarification with so many politicians and academics on both sides of the issue in disagreement. One scholar agues it this way, the intent of placing the President as Commander in Chief (War Powers Act) was to ensure military actions represent the best interest of the people and to direct the course of action insofar as force was necessary once approved by Congress, not before (Woods, 2015).
The trade off of not being able to communicate with terrorists, currently enforced by the Patriot Act (under material aide section) means we have less community based contact and information overall and are further from reaching compromises. Such policy reinforces the removal of opportunities to connect and persuade or even introduce democratic resolution processes. By concentrating power into fewer hands over situations and the lives of the governed populace, certain risks are inevitable. While defenders of policies over the last decade suggest there are no internment camps, there are no red scare type round-ups- I add the cautionary words except for the round-ups of Arabs and Muslims following 911 (McEntire, 2009 pg.133), changing rules for immigrants, changing rules for due process, privacy, and changing rules for those detained with a status of enemy combatant and deemed not protected under Geneva Conventions. The worst examples would be the thousands killed by drones and or tortured without due process or with a faulty due process globally. None of the changes allegedly making us safer are showing congruent scientific results. In fact many of the actions taken by the U.S. need greater analysis for performance. Actions could be having the opposite and combined effects of lowering civil liberties and making us less safe simply by debt accrued (Mikesell, 2014).
Between 2001 and 2003,
“ACLU chronicled thirty cases involving allegations of religious profiling, closed immigration hearings, government refusal to release names of detainees, misuse of material witness warrants, and unsuccessful efforts to obtain government documents through the Freedom of Information Act. (ACLU Report 2003).” The exact number of cases filed through 2015 and the number of cases which have been refused to be heard is unknown. https://en.wikipedia.org/wiki/Controversial_invocations_of_the_Patriot_Act
Alleged Obstruction of Justice by Susan N. Herman, ACLU president,
“The Supreme Court, she said, routinely refuses to hear cases in which lower courts uphold the government’s position in cases involving national security. “They’re not interested in civil liberties challenges,” she said of the justices. “They’re only interested when the government loses. (Liptak, 2011)”.
The material support language within the U.S. Patriot Act even makes peace aiming communications an offense. Thus no one can intervene advocating solutions to resolve conflicts without running the risk of being detained by U.S. Authorities.
“Holder v. Humanitarian Law Project, the Supreme Court ruled that it could also be a serious felony merely to urge terrorist groups to use peaceful means to resolve disputes. Such speech, the court said, amounted to material support and could be made criminal notwithstanding the protections of the First Amendment (Liptak, 2011)”.
The 2006 lawsuit against the U.S. filed by the ACLU pertaining to section 215 (domestic spying) was dropped following revisions in the Patriate Act in 2006 reportedly over improvements made in the 2006 revisions of the Patriate Act. However, “Recent disclosures have shown that the government is using Section 215 to collect records of the calls made by every single American every single day, without any suspicion of wrongdoing. (ACLU, 2015)”.
Below are summary extracts commenting on observations made by Thorne & Kouzmin’s (2010) controversial article with new recommendations offered,
Alleged secret initiatives that involve censoring and editing of news content and internet content.
Recommendation: Set up a review committee to examine the instances of censorship and determine if the scope is reasonable or see if patterns of abuse or misuse are being developed to promote special interests or biased perspectives that constitute violations of first amendment rights guaranteed by the U.S. constitution (Jackson, 2015)”.
Exemptions to rights to privacy, search and seizure without warrants issued first- but issued later within 30 days, impaired due legal process due via exemptions and vague definitions of “terrorist” or providing aid to terrorists to detain persons or seize property without rights to representation, suspended habeas corpus, and for indefinite periods without charges.
Recommendation: Revise the definition of terrorist or remove it. Only include precise language and limit to clear proven violations of U.S. criminal law. Terrorist has no added value as a term, enemy combatant, convicted felon, or suspect may be more appropriate depending where the party is at in the custodial legal process. Allow warrants and detention, but with reframed parameters which includes required videotaping and observer attorneys. Limit detention for wars which last longer than 10 years if evidence is found linking the detained as enemy combatant and afford them Prisoner of War Status protections under Geneva Conventions. If no criminal evidence (as defined by U.S. criminal codes) of crimes are found the subjects must be released within 3 days.
DHS can override Inspector General investigations
Recommendation: This needs closer review, why would there be an instance when one set of rules can be trumped by another? This is highly suspect if found to be true. There are inspector general positions in many Federal Agencies. Hard to imagine DHS is replicating specialties throughout. Nullify this law and process as it poses a threat to the due process rights and procedures normally followed arbitrarily.
Exemptions for Homeland Advisory Committees from Federal Advisory Committee act 1972 which ensures openness and accountability.
Recommendation: Set up audits procedures for all Secret Service activities and all closed door sessions to ensure Laws are maintained within such sessions or activities. Disclose aberrations or concerns, if any to designated ombudsman and present to a select Intelligence committee which should consist of permanent members (highest ranking officers) from each secret service and members from executive and legislative branches of U.S. Government along with qualified Attorneys specializing in relevant areas of law examined in each round and three randomly selected judges per year to hear and decide actions for presented cases which detail aberrations or concerns. Make findings publically available. This creates and incentive for secrete services to abide by laws or risk public exposure and holds them to stronger levels of accountability.
Restriction to Freedom of Information Act requests due to exemptions to prevent threats
Recommendation: The denials should become public record with detailed reasons and subject to appeal. This way errors and abuses of the exemption may be reduced.
The expansion of FISA to U.S. citizens bothers civil rights advocates and privacy law advocates and does present constitutional questions, but we do not live in a vacuum and provided abuses are not occurring, the monitoring of the citizenry should not disrupt, but adds protections to life. Many of the concerns have been brought over the misapplication and wrongful application of the act. To reduce abuses, studies should be made and adjustments in procedures used in war times to ensure the monitoring of anyone is not excessive, not wasteful, and misuse of the power should be strongly punishable to lower risks such access can be abused. Since many of the questionable laws on the books depend on an Active war status, it is recommended the U.S. immediate examine the threshold for the use of the declaration of war and examine if we presently meet that threshold. Perhaps categories of levels of war which correspond to levels of monitoring could be created so that there is no permanent removal of liberties, such as the right to privacy.
ACLU, 2014. ACLU v. FBI - FOIA Case for Records Relating to Patriot Act Section 215 retrieved from https://www.aclu.org/cases/aclu-v-fbi-foia-case-records-relating-patriot-act-section-215 on 08/09/15
Liptak, A. (2011). Civil Liberties Today. NY Times. Sept. 7, 2011. Retrieved from http://www.nytimes.com/2011/09/07/us/sept-11-reckoning/civil.html?_r=0 on 08/09/15
Mikesell, J. L. (2014). Fiscal Administration: Analysis and Applications for The Public sector (9thed.). Boston, MA: Wadsworth.
Thorne K. & Kouzmin, A. (2010.) The USA Patriot Acts:Convergent Legislation and Oligarchic Isomorphism in the Politics of Fear and State Crimes Against Democracy. American Behavioral Scientist 53 (6) 885-920 Sage. DOI 10:1177/00002764209353280 Downloaded Walden University Feb. 6, 2015.
Woods, T. (2015). Presidential War Powers: The Constitutional Answer. Retrieved from https://www.libertyclassroom.com/warpowers/ on 08/09/15