Freedoms Forsaken


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Freedoms Forsaken

  1. 1. Freedoms Forsaken 1 Running Head: FREEDOMS FORSAKEN Freedoms Forsaken By Andrew Ciccone Baruch College Theories of Persuasion Professor Eric Gander Com 9651 – Fall 2008
  2. 2. Freedoms Forsaken 2 Abstract In response of the attacks of September 11 and to combat future attacks of terror, the government has taken aggressive steps to investigate and ensure our nations security. Unfortunately, it has been deemed necessary to sometimes circumvent the attorney-client privilege and other civil liberties to enable law enforcement to conduct warrantless searches. Our unstable world has left many American’s to consider the costs and benefits of national security and civil rights. This paper briefly reviews the States Secret Privilege, Foreign Intelligence Surveillance Act (FISA), and The Patriot Act. In response to the attacks to our financial capital in New York and our nation’s defense department, The Patriot Act was enacted. These expansive powers granted to protect our security are examined in terms of how the impact upon potential limitations to our Constitutional Rights. Freedoms Forsaken Over the course of our nation’s history our civil liberties have been reevaluated during times of national crisis in order to protect our national security. Although it is difficult to ascertain the balance between liberty and safety, it is often true that they go hand in hand. Richard Posner (Source, ) contends, "they are both important, and their relative importance changes from time to time and from situation to situation." The law is not absolute, however malleable it may be, it is pragmatic rather than dogmatic. “Fiat iustitia ruat caelum” (let justice be done though the heavens fall) is dangerous nonsense (Lavin & Stossel 2002).
  3. 3. Freedoms Forsaken 3 The attacks of 9/11 precipitated the enactment of The Patriot Act, which enables our intelligence community to close critical intelligence gaps that existed before the Act became law. The Act shifts the balance between civil liberties and national security. A brief overview of some of our nation’s surveillance legislation is useful to explicate the expansive powers law enforcement has been granted in order to combat the lawlessness of drug cartels that sell contraband here in our neighborhoods, the threat of terror here, and other clandestine activities that undermine this great nation. The State Secrets Privilege allows evidence to be excluded from a legal case if the government deems that the information might endanger our national security. The court rarely conducts an examination of the evidence to evaluate whether there is sufficient cause to support the use of this doctrine. This governmental privilege arguably necessary does infringe upon our Fourth Amendment rights. The Fourth Amendment prevents arbitrary and oppressive interference by law enforcement officials concerning the privacy and personal security of individuals. Any warrant must be judicially sanctioned for a search or an arrest, and must be supported by probable cause. As a general rule of law, evidence may not be used if improperly obtained. "No free man shall be taken or imprisoned or disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land." -- Magna Carta A.D. 1215, King John of England
  4. 4. Freedoms Forsaken 4 Use of the State Secrets privilege in courts has grown significantly over the last twenty-five years infringing upon our Constitutional Rights. Since the decision in United States v. Reynolds (1953) and the election of Jimmy Carter, in 1976, there were four reported cases. Between 1977 and 2001, there were a total of fifty-one reported cases in which courts invocated the privilege (Pallitto & Weaver 2005). In 1978 the Foreign Intelligence Surveillance Act (FISA) was enacted to regulate U.S. government agencies' carrying out of searches and surveillance, regarding the gathering of foreign intelligence information. The Supreme Court held in Katz v. United States (1967), that the monitoring and recording of private conversations constitutes a "search" for Fourth Amendment purposes, and therefore the government must obtain a warrant before domestic wiretapping can be engaged in. The court has approved routine warrantless search and seizures, when there is probable cause that a criminal offense has been or is being committed. Exigent circumstances arise when law enforcement has reasonable grounds to believe that there is an immediate need to protect the citizen’s lives and their property. The increase evocation of the State Secrets Privilege is indicative of greater willingness to assert the privilege than in the past (Pallitto & Weaver 2005). The U.S. Patriot Act strengthens the intelligence-gathering community’s ability to combat domestic terrorism. The Patriot Act was enacted in 2001 to protect our nation from acts of terror that violates federal or state criminal law and is dangerous to human life. Facts about The Patriot Act expanded the practice of using National Security Letters (1978) – administrative subpoenas that require disclosure of individual’s and organizations private and proprietary documents. Law
  5. 5. Freedoms Forsaken 5 enforcement officers may investigate U.S. citizens, regardless if the individual under investigation or has committed a crime. An agency need not obtain a warrant before searching records. The broad consensus among legal scholars and national security experts contend that the warrantless domestic spying program is unconstitutional (Lichtblau & Risen 2006). Life during War Times The American Civil Liberties Union (ACLU) brought suit against the National Security Agency (NSA) regarding the constitutionality of the so-called "Terrorist Surveillance Program" (TSP) as a violation of federal law. It is not clear when the NSA began the highly secret foreign intelligence program, since named the TSP, to intercept international telephone and Internet communications of persons working and living in the United States. The spy program is undertaken without obtaining warrants and it is argued that it is therefore not within the parameters of the Foreign Intelligence Surveillance Act. The government argued that the lawsuit should be dismissed or alternatively be granted summary judgment based on the State Secrets Privilege and the plaintiffs' lack of standing. The District Court granted summary judgment for the plaintiffs, ruling that the TSP specifically involving "international telephone and internet communications of numerous persons and organizations" within the United States of America, was unconstitutional and illegal, and ordered that it be halted immediately. An order was stayed pending appeal as no ruling was made on the alleged NSA database of domestic call detail records, citing the States Secrets Privilege. The District Court’s opinion examined the defendant's claim over State Secrets, standing, and the President's wartime claim finding that the NSA surveillance Program violated statutory law in regard to the
  6. 6. Freedoms Forsaken 6 FISA. Furthermore, it was concluded that the NSA program violated the Constitution in regard to the First Amendment, Fourth Amendment, and Separation of powers Doctrine. The U.S. Supreme Court, "without comment, turned down an appeal from the [ACLU] to let it pursue a lawsuit against the program that began shortly after the Sept. 11 terror attacks," – (ACLU v. NSA 2007). The constitutionality of this decision does not adequately ensure nor protect individual’s rights, as it is unreasonable for the courts to dismiss this case given that the evidence is deemed inadmissible. In another case involving the NSA (Hepting v. AT&T 2006), a former AT&T engineer, came forward alleging that he simply does not, "believe their claims that the NSA's spying program is really limited to foreign communications or is otherwise consistent with the NSA's charter or with FISA . . . unlike the controversy over targeted wiretaps of individuals' phone calls, this potential spying appears to be applied wholesale to all sorts of Internet communications of countless citizens." The AT&T engineer with the authorization of his employer assisted the NSA by installing a system in its San Francisco switching center, that was capable of monitoring billions of bits of Internet traffic a second, including the playback of telephone calls routed on the net. Such technological monitoring in effect captures, processes, and analyzes data not only from foreigners who access these communication lines but all American citizens. The class action law suit alleges that AT&T permitted and assisted the NSA in unlawfully monitoring the communications of the United States, including AT&T customers, businesses and third parties whose communications were routed through AT&T's network, as well as Voice over IP telephone calls routed via the net. The case is separate but related to, the NSA warrantless surveillance program in which the federal government agency bypassed the U.S. courts to
  7. 7. Freedoms Forsaken 7 monitor domestic phone calls without warrants. The courts in 2006 rejected a federal government motion that invoked the State Secrets Privilege argument that any review of this case would undermine our national security. The case was immediately appealed to the Ninth Circuit, Where it has been argued and awaits a decision. Before any Ninth Circuit decision, the case was returned to the District Court in light of the amendments to FISA in July of 2008 that granted retroactive immunity to telecommunications companies for past violations of FISA. Subsequently the government moved to dismiss the Hepting litigation. The Hepting plaintiffs opposed the motion to dismiss, asserting that the FISA Amendments Act's retroactive immunity provision was unconstitutional. The matter is under review. The courts have seriously jeopardized the rule of law, there is an alarming lack of accountability to ensure that individual’s rights are protected and upheld. The final case involves the constitutional issue of freedom of information, bearing on the public's right to know. The right to know is a perfect example of a "liberty" in the sense of being a fundamental freedom or piece of substantive due process made up from other rights like free press, right to education, and so forth. It is intimately involved with the forwarding or advancing of civil liberties. Various “public interest” groups sued the Department of Justice seeking the release of information concerning certain persons detained in the wake of the 9/11 terrorist attacks. The claim brought to the court’s attention concerned the Freedom of Information Act (FOIA) requesting information included: detainee names, their attorneys, dates of arrest and release, locations of arrest and detention, and reasons for detention. To support its FOIA request, plaintiffs cited press reports about mistreatment of detainees, which plaintiffs claimed raised
  8. 8. Freedoms Forsaken 8 serious questions about “deprivations of fundamental due process, including imprisonment without probable cause, interference with the right to counsel, and threats of serious bodily injury. The United States Government objected to the release of such information, citing the law enforcement exception within the FOIA (Center for National Security v. U.S. DOJ 2003). The First Amendment does not require release by Department of Justice of any information concerning persons detained during investigation into major terrorist attacks. The Court expressly noted the language of the First Amendment “Congress shall make no law ... abridging the freedom of speech, or of the press” and said “it does not expressly address the right of the public to receive information," rather, generally speaking, the First Amendment only broadly protects the public’s right to speak or to publish. Although we live in a free and open society where it is possible to reach out and communicate beyond our boarders, little by little our voices are being censored under the guise of national security. The Need for Oversight The assumption underlying the adversarial system is that a just outcome is achieved when each party in the dispute has an equal opportunity to make its best arguments on the legal and factual issues at stake in the full glare of the public eye. This requires that all parties to the litigation have access to evidence and information that may be helpful to resolving the case. Court decisions that dismiss cases or deny parties’ access to important evidence as a result of national security has the potential of failing to provide redress to parties who have been wronged. In the years since 9/11, cases involving security issues have become more central to our national debate. Should secret evidence prevent the civil litigation system from dispensing justice,
  9. 9. Freedoms Forsaken 9 Congress needs to enact safeguards providing redress to wronged parties. A mandatory review must be undertaken regarding all cases that infringe upon our citizens’ civil liberties to ensure that our Constitutional Rights are protected and upheld. It is difficult to accurately assess the potential threats to our civil liberties, as many cases are never even brought to trail, nor is there any review to assess if an individual’s rights have been violated. Life during war times History has demonstrated, in times of war, the courts have upheld restrictive laws that abridge rights otherwise protected by the Constitution. Freedoms forsaken today may not be regained tomorrow. The Patriot Act allows officials to sidestep the Fourth Amendment by validating the disregard of notice, probable cause, and proportionality. Having said this there are critical instances in American history, such as the South's secession, Pearl Harbor, and the Tet Offensive, when threats to national security were overlooked with disastrous consequences. Given that the danger of terrorism against Americans is currently very high, it is argued, civil liberties "should be curtailed [because] the benefits in greater security outweigh the costs in reduced liberty," (Lavin & Stossel 2002). Newsday's Washington bureau chief Timothy Phelps assessed the political climate regarding protecting news sources; "I don't sense as much of that today, even in the journalistic community. The legal atmosphere, the corporate atmosphere, and the public atmosphere have changed." Lawyers for the news media say that the legal climate for those seeking to protect confidential sources is turning chillier, with more subpoenas being issued to reporters. It is troubling that there is no database that tracks such subpoenas, as some prosecutors dispute that
  10. 10. Freedoms Forsaken 10 they are on the rise, however a series of high-profile cases involving confidential sources has the news media on edge (Seelye 2005). Regardless of our governments actions involving the disclosure of confidential sources; "The biggest fear that most reporters have now is not having their [mail, phone records monitored without consent] said John Solomon, who oversees investigative reporting for the Associated Press, "The biggest concern is that they'll write about something and will be forced to talk about it." What is troubling is that there is an environment that breed’s fear of reprisal thus effectively censoring the news and the public’s right to know. No administration in our history has had the technological capacity to spy on all of us as they do now. A federal judge in Portland, Oregon threw out the case against an American lawyer jailed for two weeks as a material witness in the Madrid train bombing. The Federal Bureau of Investigation said it had mistakenly matched his fingerprints with prints on a plastic bag found near the scene of the attacks that killed 191 people (Lichtblau & Risen 2006). Upon the lawyer’s release at a news conference, he stated as his body shook; "This is a serious infringement on our civil liberties”, adding, “[we live] in a climate of fear, this war on terrorism has gone to the extreme and innocent people are victims as a result." David Fidanque, executive director of the American Civil Liberties Union of Oregon also echoed a sentiment that is a growing concern of many U.S. citizens; "This is indicative of how the Justice Department has overreached and cut constitutional corners since 9/11," (Lichtblau & Risen 2006). The Oregon Justice Department is reported to have invoked the States Secret Privilege at least 50 times since the 9/11 attacks. No one is accusing our government agents of not vigorously pursuing threats to our national interests; however this incident once again illustrates the potential for abuse to innocent civilians.
  11. 11. Freedoms Forsaken 11 Our government’s responses to security threats may sometimes seem severe in times of crisis, as was President Lincoln's suspension of habeas corpus during the Civil War. Civil liberties, Lincoln wrote, always "remain part of the balance even in the most dangerous of times, and even though their relative weight must then be less." The Bill of Rights always expands and shrinks in times of crisis. Extraordinary times require extraordinary measures. Americans regretted deeply when our liberties were crushed during these times. We don't know when this war will end, this war on terrorism ((Lavin & Stossel 2002). The extraordinary measure being undertaken to ensure our security at the cost of our civil liberties may well become customary. These precedents will be argued in the years ahead as incidents of violations to our civil rights become pervasive. Perhaps then the public and our courts will soon realize the far-reaching consequences that diminish our rights and modifications will be made to the important security acts to ensure and protect our Constitutional Rights.
  12. 12. Freedoms Forsaken 12 Government Sources – American Civil Liberties Union v. National Security Agency. (2007). publication/11326/american_civil_liberties_union_et_al_v_national_security_agency_et_al.html Carroll v. United States. (1925). Center for National Security v. United States Department of Justice (2003). /cnssvdoj.htm Civil Liberties Union v. the National Security Agency. (2007). wiki/ACLU_v._NSA Freedom of Information Act. (1966). Information_Act_(United_States) Foreign Intelligence Surveillance Act. (1978). Foreign_Intelligence_Surveillance_Act Hepting v. AT&T. (2006). National Security Letters (1978). Katz v. United States. (1967). The Patriot Act. (2001). The United States Constitution, Amendments I, IV, V, VI, IX, X, XIV. (1791, 1868). The United States v. Reynolds. (1953). United_States_ v._Reynolds States Secrets Privilege. (1952). Critical Sources – Kershaw, S. & Lichtblau, E. (May 25, 2004). Bomb Case Against Oregon Lawyer Is Rejected. The New York Times. Lavin, T. & Stossel, S. (February 6, 2002). Security versus Civil Liberties. [Atlantic Online]. Lichtblau, E. & Risen, J. (January 20, 2006). Legal Rationale by Justice Dept. on Spying Effort. New York Times. Moyers, B. (Broadcast Journalist). (February, 28, 2003). NOW, Politics and Economy, Transcript: Bill Moyers Interviews Nat Hentoff. []. now/transcript/transcript_hentoff.html Seelye, K. Q. (July 4, 2005). Journalists Say Threat of Subpoenas Intensifies. The New York Times. Weaver, W. G. & Pallitto, R. M. (Spring 2005). State Secrets and Executive Power. Political Science Quarterly, Vol. 120, No. 1, pp. 85-112.