Justification of Survailence (The Us Patriot Act)

The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, better known as the USA PATRIOT Act, or simply the PATRIOT Act was introduced on October 24, 2001, only 45 days after the devastating terrorists attacks of 9/11. It passed nearly unanimously, with only one person total in both the House or Representatives and the Senate voting against it. This law has many aspects, but perhaps the most controversial is the authorization of surveillance procedures, and the legitimacy of these provisions in regards to the Fourth Amendment of the United States Constitution. The following is an examination of the moral and homeland security implications this Act has on the American people and the American Constitution. To better understand the Fourth Amendment, we must look at its historical origins. While still under British rule, the colonists were subjected to general warrants and “writs of assist” which gave the government blanket power to search unspecified people and property st their own discretion.

This allowed the government (at the time, the King of England) to stifle the press, quell political change, and generally harass those that had differing and unpopular opinions politically and socially. This was the reason that the Fourth Amendment was put into the Constitution, because citizens should not be searched when unless there is probability and due cause. This is also why the First Amendment is so important, because if the freedom of speech and expression is not honored, having a different opinion could be deemed “probable cause”. As the law stands, US citizens have a right to feel and speech differently from the “normal” population without fear of being prosecuted for their beliefs. (German, ACLU 2011; The US Constitution online) Some argue that civil liberties can and should be restrained during a crisis, especially in a time of war, but if citizens are entitled to certain rights and privileges during peace, are they not just as entitled to these rights in a time of war, when they are being asked to sacrifice, fight, and even die to protect these freedoms?

Robert La Follette , a Congressman from Wisconsin, thought so, stating that, “Rather in time of war the citizen must be more alert to the preservation of his right to control his government. He must be watchful of the encroachment of the military upon the civil power.” (La Follette, 1917) While he agrees that some liberties must be relinquished temporarily for the common good when times call for it, he warns the citizen to beware of these procedures which excused on the plea of necessity in war time, become the fixed rule when the necessity has passed and normal conditions have been restored.” Though the PATRIOT Act has “sunset dates” when the laws are no longer in effect, the ramifications of these laws will undoubtedly have a long-lasting effect on the American public, both judicially and morally. (Sensenbrenner, 2001 Library of Congress, US Dept of Justice, 2001) The United States Constitution was written to secure several things, among them common defense and the “Blessings of Liberty” (usconstitution.net, 2011). The designers of the constitution were so concerned with freedom that the word “liberty” was capitalized.

The Fourth Amendment definitely grants the right to privacy, though not in so many words. There is also not a question that since the 9/11 attacks there have been more searches and seizures, more invasion into our property, and expansion of the government’s rights to do so. To determine the morality of these developments, the first question is whether this right to privacy is a natural law that has been formally acknowledged by man or man-made law. Hugo Grotius, the father of international law, explained that all laws fall into these two categories. Laws of nature are, as the name implies, unchangeable, even by God. These laws are the corner points of a moral society; the Declaration of Independence acknowledged these rights, “among these are Life, Liberty and the pursuit of Happiness.” (www.ushistory.org, 20011) These are rights of nature, and cannot be changed. But what other rights does is man naturally entitled to? Is the right to privacy a God-given right or simply a volitional law, a contentious choice or opinion that can be set aside or altered as needs and opinions change? (Christopher, 2004)

These volition laws are not simply arbitrary rules that can be tossed aside at a moment’s notice. Grotius points out that it is in man’s nature to live in a civil, governed society, and therefor his nature to obey the rules of that society. Therefor voluntary rules are an extension of the rules of nature. The rules of nature are the guiding principals, and the other rules fill out the rules of society. Russel Hardin points out in the Journal of Ethics that is is difficult to supply both freedom and security, since neither can exist completely; one cannot be completely free and completely safe. (Hardin, 2004) Thus a balance must be struck, but in the case of the PATRIOT Act, the double effect must be weighed. The infringement on civil liberties can be condoned ethically if the positive effects outweigh the negative, and if any wrong-doing was unintentional. (Christopher, 2004 p 262,) The PATRIOT Act does seem to take specific action First Amendment rights are not taken away: Before new surveillance measures and regulations are even discussed, there is statement in Section 102 that says civil liberties and rights of all citizens, regardless religion or race, must be protected. of Section 214 expressly bans surveillance techniques when evidence is“solely on the basis of activities protected by the first amendment to the U.S. Constitution”.

This apparently includes television, since cable subscriptions and movie selections are also excluded from the things that are allowed to be watched and seized for investigation purposes. Further protection of the innocent in Sections 223, which guarantees compensation for losses to anyone suffering collateral damage due to investigation or apprehensions, for example the landlord’s door that was kicked in, or damage damage to wireless providers’ equipment. Section 223 also expressed the right of any citizen to bring a civil suit against the government should any abuses of these new regulations take place.(Sensenbrenner, 2001 Library of Congress, US Dept of Justice, 2001) The basic right to express oneself freely, a law of nature, does not seem to be violated. The right to privacy may or may not be a God-given right, but as in all matters of morality, the needs of the many outweigh the needs of the few. The implication of the PATRIOT Act on Homeland Security seems to be all positive, because no matter what else is does, the bill makes it easier to find, hunt down, and capture terrorists.

From a security standpoint, harassing or even wrongfully imprisoning a few innocent people is better than letting one guilty person slip through the red tape and commit a violent act. From this standpoint, any persons wrongly accused are not loosing their lives, as they very well might were the same procedures not in place and a terrorists act was to happen, especially that in recent years one terrorists counts for an average of 100 deaths.( Hardin, 2004) However, the Department of Homeland Security has not only to identify and defeat the enemies of America, but “other dangers that threaten our Nation and our way of life” (Dept Homeland Security, 2008) Depending on what one’s interpretation on “our way of life” the PATRIOT Act can be viewed as both honoring and breaking this promise the Department made to the American citizens. American’s value their freedom of speech and expression above nearly anything else, which is probably why we as a nation are divided on nearly every national issue (war, healthcare, the penal system, abortion, etc).

This is ironic when one considers that in practice,the average law-abiding citizen doesn’t vote and is therefor is not actively involved in the government; low voter turn-out has been a concern for some time now, especially in a non presidential-election year. The American people have seemed to take a “laissez-faire” approach to their government, and likewise expect the government to do the same; that is, only to bother them when absolutely necessary. (While this is a term mostly used in economics, the phrase translates to “let it be” or “leave it alone”, which is appropriate for this argument) This could be considered to be an apathy on the American people’s part, but the argument that our way of life consists of being left alone is a strong argument. As pointed at earlier, the Fourth Amendment was ratified to let us be left alone. If this is a fundamental part of our society, then this is something the Department of Homeland Security has sworn to uphold an protect. This makes their job and the jobs of law enforcement harder, because finding a balance is difficult, and when civil rights and terrorism are both in the equation, the stakes are much higher.

When analyzing the impact of the PATRIOT Act, the moral implications and the implications to homeland security and national defense are both equally complicated. Aside from the legitimacy arguments for and against the PATRIOT Act, the fact that many of these regulations and amendments are not permanent raises concern. If these “updates” were needed to find and stop the terrorists, how will the Department of Homeland Security, the FBI and law enforcement continue their mission of defense once the tools are no longer at their disposal? If these changes and suspension of privacy were necessary in the wake of 9/11 only to ensure more freedom, then they should only be temporary, and stopped once the state of normalcy is returned. In regards to morality, the PATRIOT Act is a just. While the law was not an act of war, it was a means used to fight a war, so Just War theory can be applied. Using the tenants of the the Just War Theory, the PATRIOT Act has the right intention, which is to stop violent, illegal terrorist activities before they happen.

This also meets the “proportionality” requirement, and the double effect. Proportionally, if the provisions of this law prevent even one attack from happening, it is justified, especially if a large-scale attack was stopped, because it did more good than harm. The Just War Theory also states that war should be regarded as a tragic necessity; I believe the same is true for any regulations, restrictions, or resulting hardships placed on citizens (non-combatants) during the time of war. In the aftermath of the 9/11 attacks, radical change was seen as necessary, and the PATRIOT Act was pushed through less than two months after the attack occurred. While this strong evidence that this law was passed nearly unanimously by a government that was not thinking with sound mind, but still recovering and full of emotion as a result of the attack, at the time, this was deemed as necessary. (Christopher, 2004, Ferraro, 2011) The legal aspect of this law is not as clear. Homeland security has benefited from the use of the these new, less-constricting rules and regulations, but are they new laws undermining the very freedoms they are supposed to be protecting?

The American Civil Liberties Union felt that the Sections 213 and 215 violated the Fourth Amendments, and sued; the case is ongoing.(German, ACLU 2011) Section 213 allows for a delay of notification of warrants. In layman’s terms, the FBI can enter and search the home or business of a suspect without having to declare their right to do so. This type of delay has been useful when apprehending drug dealers, because notification can give the offender a chance to destroy the evidence. It is hard to imagine anyone being able to destroy an elaborate plot to commit an act or terrorism against the United States government or its citizens in the time it takes to announce one’s authority to enter and search. Section 215 allows the FBI to obtain a court order that demands business records possibly related to the case; a person’s bank account and other personal information is also subjected to being searched and monitored, even if the person in question is not suspected of a crime.

Using the Just War Theory again, the outcome of these guidelines must be examined. Again, the proportionality guideline comes to mind. Since the Department of Homeland Security is sworn to protect citizen’s right and life, a balance must be struck, where both can co-exist. The USA PATRIOT Act again, was done with the right intention during a time of crisis and uncertainty.(German, ACLU, 2011 Christopher, 2004 US Dept of Justice 2001, Library of Congress, US Dept of Justice ) As mentioned before, Grotius pointed out that we naturally live in governing societies. Therefore, he concluded, “neither persons nor states have an absolute right to self- defense.. Thus the right of self-defense is limited at least to the extent that one cannot impose unreasonable dangers on other innocent persons to save oneself.”(Christopher, 2004) This principal is crucial to determining both the legal and moral legitimacy of the PATRIOT ACT. While misuses have been reported, the spirit of this law is to protect the greater good, and the innocent people in society.

The purpose of this law was to restore peace and order to a society that was in upheaval, and to give better, more efficient tools to the proper authorities responsible for their safety, namely Department of Homeland Security.(Christopher, 2004 US Dept of Justice 2001, Library of Congress, US Dept of Justice) In conclusion, the USA PATRIOT Act is justified both legally and morally under the Just War Principals. The temporary intrusion into citizen’s lives was deemed necessary by proper authority in order to restore peace, order, and to protect citizens’ rights to liberty and life. The number of lives saved by the PATRIOT Act is unknown and is impossible to calculate, since there is little way to figure how many people might have been killed if a terrorists plot had gone unnoticed and been executed. However, it is reasonable to assume that at least some lives were saved, and since there were no loss of life casualties, the good that came from this act outweigh the bad. Any inconvenience or suffering is justified because it is for the common good.

Morally, it is justified because each individual and state must put the need of society before their own. Legally it is justified because in a democracy, the rule of our land, the needs of the many will always outweigh the needs of the few. When faced with government interference into our private life, it is easy to become the victim, or to forget that one is not the most important person. The “downside” to all the rights and freedoms that Americans enjoy is that we often take them for granted or become selfish, unwilling to concede even a little and temporarily to protect our neighbors and therefor ourselves, because we find it inconvenient. The PATRIOT Act was designed to protect us from people wanting to do us harm unprovoked. The world has changed since 9/11 and we must accept this and move forward to find the ideal balance of safety and freedom that is so elusive.

References

One Team, One Mission, Securing our Homeland United States Department of Homeland Security Strategic Plan for Fiscal Years 2008-2013
Retrieved from: http://www.dhs.gov/xlibrary/assets/DHS_StratPlan_FINAL_spread.pdf

Robert La Follette’s “Free Speech in Wartime” (October 6, 1917) Retrieved from http://www.dhs.gov/xlibrary/assets/DHS_StratPlan_FINAL_spread.pdfhttp://www.nolo.com/legal-encyclopedia/content/lafollette-freespeech-speech.html Copyright 2011 NOLO Law Firm

950 Parker St.
Berkeley, CA 94710

The USA PATRIOT Act: Preserving Life and Liberty
U.S. Department of Justice. (2001)
Retrieved from http://www.justice.gov/archive/ll/highlights.htm

Representative Sensenbrenner, sponsor of H.R. 3162: Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 The Library of Congress Bill Summary & Status 107th Congress (2001 – 2002) H.R.3162 CRS Summary

Retrieved from: http://thomas.loc.gov/cgi-bin/bdquery/z?d107:HR03162:@@@D&summ2=m&

Michael German Senior Policy Counsel (March 30, 2011) “The Permanent Provisions of the PATRIOT Act” American Civil Liberties Union Washington Legislative Office Written statement to the Subcommittee on Crime, Terrorism and Homeland Security House Committee Retrieved From

http://www.aclu.org/files/assets/ACLU_Testimony_Before_the_HJC_Regarding_the_Patriot_Act.pdf

The United Sates Constitution online
Retrieved from http://www.usconstitution.net/const.html#Am4
Web site designed and maintained by Steve Mount.
Copywrite1995-2011 by Craig Walenta. All rights reserved.

Vincent Ferraro, Lawson Professor of International Politics
Mount Holyoke College, “Principals of just War”
Retrieved from: http://www.mtholyoke.edu/acad/intrel/pol116/justwar.htm 103 Skinner Hall,
Mount Holyoke College
South Hadley, MA 01075

The Declaration of Independence
US History.org
copyright 2011 Independence Hall Association
Retrieved from: http://www.ushistory.org/declaration/document/index.htm

Russell Hardin, Journel of Ethics “Civil Liberties in the Era of Mass Terrorism” 2004 Copyright New York University
726 Broadway, Room 712
New York, NY 10003-9580
Retrieved from http://vizedhtmlcontent.next.ecollege.com/pub/content/c50b4e74-ef9c-4c95-88e3-348e248ae2df/HSM311.W5.Civil_liberties_in_the_era_of_mass_terrorism.pdf

Paul Christopher, The Ethics of War and Peace: An Introduction to Legal and Moral Issues, 3rd Edition. ISBN 0-13-092383-4
Copyright 2004 Pearson Education, Inc.
Upper Saddle River, New Jersey, 07458.