Chapter Sixteen: Protecting the Homeland and Protecting Civil Liberties

1. Chapter Sixteen:Protecting the Homeland and Protecting Civil Liberties

2. Defense in Depth: Why Civil Liberties Interact with Civil Defense

3. Defense in Depth: Why Civil Liberties Interact with Civil Defense • The target of terrorism • The target of terrorism is social order • Combating terrorism involves the preservation and protection of social order • Terrorism targets civil society and civilian targets • To defend against terrorism, a nation must use civil defense • All levels of society must become involved in homeland security

4. Defense in Depth: Why Civil Liberties Interact with Civil Defense • Issues surrounding homeland defense • There is the assumption that the community wants to fight for its existence • There is an implication that all members of the community are committed to preserving a similar goal • Members of a group are asked to be sufficiently ruthless with enemies and to have the political will for rigid self-examination

5. Defense in Depth: Why Civil Liberties Interact with Civil Defense • Ideal freedom versus state power • To engage in a struggle against terrorism, Americans must examine themselves and honestly select a course of action they will accept • Americans will be better prepared to secure the homeland if they have engaged in a nationwide discussion of defense in depth and its impact on civil liberties before an attack

6. The USA Patriot Act

7. The USA Patriot Act • Title I • Designed to enhance domestic security • Title II • Designed to improve the government’s ability to gather electronic evidence • Contains a sunset clause ending the provisions of the Patriot Act unless it is renewed, and demands congressional oversight

8. The USA Patriot Act • Title III • Empowers federal law enforcement to interact with banking regulators and provides arrest power outside the U.S. borders for terrorist financing and money laundering • Title IV • Increases border patrols and monitoring of foreigners with in the United States, while mandating detention of suspected terrorists

9. The USA Patriot Act • Title VII • Focuses on police information sharing, specifically targeting a nationwide police investigative network known as the Regional Information Sharing System • Support of the Patriot Act • Supporters believe the Patriot Act will increase federal law enforcement’s ability to respond to terrorism and will create an intelligence conduit among local, state, and federal police agencies

10. The USA Patriot Act • Opponents of the Patriot Act • Opponents believe that the Patriot Act goes too far in threatening civil liberties while expanding police powers

11. Title II and the Debate about Intelligence Gathering

12. Title II and the Debate about Intelligence Gathering • Civil liberties • Citizens are free from having their government infringe unreasonably on the freedoms guaranteed in the Constitution and the Bill of Rights • Increasing the ability of the government to collect information increases executive power

13. Title II and the Debate about Intelligence Gathering • Separation of powers • The U.S. Constitution separates the powers of the three branches of government: executive, legislative, and judicial. This is known as the separation of powers, and these powers are also separated in the criminal justice system

14. Title II and the Debate about Intelligence Gathering • The Fourteenth Amendment • The Fourteenth Amendment ensures that suspects cannot lose their rights except by the due process of law • The interpretations of the Constitution and its amendments have protected American liberties for more than two centuries

15. Title II and the Debate about Intelligence Gathering • Disagreements about the nature of terrorism • Many people disagree about the nature of terrorism. Many legal scholars argue that terrorism is not a continuing emergency • Criminal justice agencies do not take actions for war; they protect individual rights, and local, state, and federal courts are not charged with national defense • Controversy arises when criminal systems and the defense establishment begin to blend activities

16. Title II and the Debate about Intelligence Gathering • Patrick Leahy (D-Vermont) • According to Senator Leahy, President Bush’s antiterrorist proposals threatened the system of checks and balances, giving the executive branch of government too much power • Attorney General John Ashcroft • Ashcroft argues that the proposed guidelines were solely for the purpose of protecting the country from terrorists

17. Title II and the Debate about Intelligence Gathering • Nancy Chang • Chang criticizes the Patriot Act on the basis of democracy • By allowing the government to blur the distinction between defense intelligence and criminal evidence, the Patriot Act tramples on reasonable expectations of privacy

18. Title II and the Debate about Intelligence Gathering • The Patriot Act not an attack on individual rights • Senator Dianne Feinstein (D-California) believes we cannot rush to judgment. Time will show how the act is used in the real world • Senator Charles Schuman (D-New York) believes the law is balanced. It limits personal freedom while reasonably enhancing security

19. The Case for Increasing Executive Powers in the Face of Terrorism

20. The Case for Increasing Executive Powers in the Face of Terrorism • Lewis Katz • Katz says the real test of the Fourth Amendment is reasonableness • A system would not be unconstitutional, provided citizens were not ordered to produce identification without reasonable suspicion • Some government actions are unreasonable • Eavesdropping on attorney-client conversations • Military tribunals

21. The Case for Increasing Executive Powers in the Face of Terrorism • Sherry Colb • Colb applies a doctrine of reasonableness • Colb believes any profiling system, including one having race as a factor, will yield many more investigative inquiries than apprehensions • There is only a small number of terrorists in any group, regardless of their profile • If a terrorist profile develops and it includes race as one of the characteristics, Colb suggests that some opponents of racial profiling may find they endorse it in the case of counterterrorism

22. The Case for Increasing Executive Powers in the Face of Terrorism • Twists in the criminal justice system • Two foreign-born terrorists were arrested, and at the same time, two U.S. citizens, Yasser Esam Hawdi and Jose Padilla were held by military force without representation • Hawdi and Padilla, both of whom would have been criminally charged before September 11, were detained much like prisoners of war, while two alleged terrorists arrested on U.S. soil were afforded the rights of criminal suspects. Hawdi was released in September 2004

23. The Case for Increasing Executive Powers in the Face of Terrorism • Ruth Wedgewood • Al Qaeda has learned it is best to recruit U.S. citizens for operations because citizens are not subject to arbitrary arrest • Common sense dictates that the detention of terrorists does not follow the pattern of criminal arrests • The purpose of detention, she argues, is not to engage in excessive punishment, but to keep terrorists from returning to society • Wedgwood argues that indefinite detention by executive order is not the most suitable alternative • Common sense demands a reasonable solution to the apparent dichotomy between freedom and security

24. The Case for Increasing Executive Powers in the Face of Terrorism • E.V. Konotorovich • According to Konotorovich, the stakes are so high that the United States must make all reasonable efforts to stop the next attack

25. The Case against Increasing Executive Powers in the Face of Terrorism

26. The Case against Increasing Executive Powers in the Face of Terrorism • Susan Herman • Herman asserts that Congress has relinquished its power to the president, and Congress also failed to provide any room for judicial review

27. The Case against Increasing Executive Powers in the Face of Terrorism • The 1968 Crime Control and Safe Streets Act • Title III of the Safe Streets Act mandates judicial review of police surveillance • Under Title III, criminal evidence cannot be gathered without prior approval from a federal court, and while a judge reviews a request for surveillance in secrecy, the police must prove that wiretaps or other means of electronic eavesdropping will lead to probable cause

28. The Case against Increasing Executive Powers in the Face of Terrorism • The 1978 Foreign Intelligence Surveillance Act • Under FISA, various forms of eavesdropping can be used to gather intelligence • Any evidence gathered during the investigation cannot be used in a criminal prosecution

29. The Case against Increasing Executive Powers in the Face of Terrorism • FISA and surveillance proposed under the Patriot Act • The Patriot Act allows the government to watch its own citizens with similar rules as the FISA • There is no guarantee that such surveillance will exclude evidence used in criminal prosecutions • The Patriot Act concentrates too much power in the executive branch • The Patriot Act also gives the attorney general and the secretary of state the power to designate certain associations as terrorist groups, and they may take actions against people and organizations associated with these groups

30. The Case against Increasing Executive Powers in the Face of Terrorism • The American Civil Liberties Union • The ACLU expresses two concerns • After September 11, the attorney general ordered the detention of several hundred immigrants. He refused to openly charge most of the detainees and refused to make the list known for several months • Attorney General Ashcroft sought to have the rules for detaining and deporting immigrants streamlined. He wanted to make the process more efficient by decreasing the amount of judicial review involved in immigration and naturalization cases

31. The Case against Increasing Executive Powers in the Face of Terrorism • Ali Maqtari • Maqtari was stopped by police for questioning, and he was detained without probable cause to believe he had committed a crime. He was held for eight weeks without formal charges • After Maqtari was granted a hearing, a court ruled that the government’s position was unjustified and he was released. Without effective judicial review, the ACLU says, Maqtari may not have been released

32. The Debate Concerning Intelligence Gathering

33. The Debate Concerning Intelligence Gathering • The dilemma when terrorism moves the police into a new intelligence realm • The criminal justice system collects criminal intelligence, not information regarding national security • To gather counterterrorist intelligence, the police are forced to collect political information • The police are not designed to collect political information • Although not a formal role, the preoccupation with responding to and preventing crime has become the de factopurpose of American law enforcement

34. The Debate ConcerningIntelligence Gathering • The problems posed by both domestic and international terrorism • On the one hand, state and local law enforcement agencies are in a unique position to collect and analyze information from their communities • On the other hand, when the criminal justice system has participated in national defense in the past, abuses have occurred

35. Militarization and Police Work

36. Militarization and Police Work • Militarization • Military forces are necessary for national defense, and they are organized along principles of rigid role structures, hierarchies, and discipline. A military posture prescribes unquestioning obedience to orders and aggressive action in the face of an enemy • Any bureaucracy can be militarized when it adopts military postures and attitudes, and the police are no exception • Militarization refers to a process in which individual police units or entire agencies begin to approach specific problems with military values and attitudes

37. Militarization and Police Work • Terrorism and the change in attitudes • Since many forms of terrorism require resources beyond the capacity of local police agencies, law enforcement has been forced to turn to the military for assistance • State and local law enforcement agencies have few international resources compared with the defense and intelligence communities • Terrorism demands a team approach

38. Militarization and Police Work • Field Force • Field force is a technique for responding to urban riots • The concept is based on responding to a growing disorderly crowd, a crowd that can become a precursor to a riot, with a massive show of organized police force

39. Militarization and Police Work • Police tactical units • These special operations units are called out to deal with barricaded gunmen, hostage situations, and some forms of terrorism • Tactical units use military weapons, small-unit tactics, and recognized military small-unit command structures

40. Militarization and Police Work • Peter Kraska • Kraska argues that police in America have gradually assumed a more military posture since violent standoffs with domestic extremists, and he fears terrorism will lead to a further excuse to militarize

41. Militarization and Police Work • View of terrorist analysts • Most terrorist analysts believe terrorism is best left to the police whenever possible • The difficulty is that the growing devastation of single events sometimes takes the problem beyond local police control • Military forces are often targeted, and they must develop forces to protect themselves