Freedoms forsaken
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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......

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.

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  • 1. Freedoms Forsaken 1Running Head: FREEDOMS FORSAKEN Freedoms Forsaken By Andrew Ciccone Baruch College Theories of Persuasion Professor Eric Gander Com 9651 – Fall 2008
  • 2. Freedoms Forsaken 2AbstractIn response of the attacks of September 11 and to combat future attacks of terror, the governmenthas taken aggressive steps to investigate and ensure our nations security. Unfortunately, it hasbeen deemed necessary to sometimes circumvent the attorney-client privilege and other civilliberties to enable law enforcement to conduct warrantless searches. Our unstable world has leftmany American’s to consider the costs and benefits of national security and civil rights. Thispaper 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 ournation’s defense department, The Patriot Act was enacted. These expansive powers granted toprotect our security are examined in terms of how the impact upon potential limitations to ourConstitutional Rights. Freedoms ForsakenOver the course of our nation’s history our civil liberties have been reevaluated during times ofnational crisis in order to protect our national security. Although it is difficult to ascertain thebalance 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 totime and from situation to situation." The law is not absolute, however malleable it may be, it ispragmatic rather than dogmatic. “Fiat iustitia ruat caelum” (let justice be done though theheavens fall) is dangerous nonsense (Lavin & Stossel 2002).
  • 3. Freedoms Forsaken 3The attacks of 9/11 precipitated the enactment of The Patriot Act, which enables our intelligencecommunity to close critical intelligence gaps that existed before the Act became law. The Actshifts the balance between civil liberties and national security. A brief overview of some of ournation’s surveillance legislation is useful to explicate the expansive powers law enforcement hasbeen granted in order to combat the lawlessness of drug cartels that sell contraband here in ourneighborhoods, the threat of terror here, and other clandestine activities that undermine this greatnation.The State Secrets Privilege allows evidence to be excluded from a legal case if the governmentdeems that the information might endanger our national security. The court rarely conducts anexamination of the evidence to evaluate whether there is sufficient cause to support the use ofthis doctrine. This governmental privilege arguably necessary does infringe upon our FourthAmendment rights. The Fourth Amendment prevents arbitrary and oppressive interference bylaw enforcement officials concerning the privacy and personal security of individuals. Anywarrant must be judicially sanctioned for a search or an arrest, and must be supported byprobable 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. Freedoms Forsaken 4Use of the State Secrets privilege in courts has grown significantly over the last twenty-fiveyears 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 1977and 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 offoreign intelligence information. The Supreme Court held in Katz v. United States (1967), thatthe monitoring and recording of private conversations constitutes a "search" for FourthAmendment purposes, and therefore the government must obtain a warrant before domesticwiretapping 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. Exigentcircumstances arise when law enforcement has reasonable grounds to believe that there is animmediate need to protect the citizen’s lives and their property. The increase evocation of theState 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 combatdomestic terrorism. The Patriot Act was enacted in 2001 to protect our nation from acts of terrorthat violates federal or state criminal law and is dangerous to human life. Facts about The PatriotAct expanded the practice of using National Security Letters (1978) – administrative subpoenasthat require disclosure of individual’s and organizations private and proprietary documents. Law
  • 5. Freedoms Forsaken 5enforcement officers may investigate U.S. citizens, regardless if the individual underinvestigation or has committed a crime. An agency need not obtain a warrant before searchingrecords. The broad consensus among legal scholars and national security experts contend thatthe warrantless domestic spying program is unconstitutional (Lichtblau & Risen 2006).Life during War TimesThe American Civil Liberties Union (ACLU) brought suit against the National Security Agency(NSA) regarding the constitutionality of the so-called "Terrorist Surveillance Program" (TSP) asa violation of federal law. It is not clear when the NSA began the highly secret foreignintelligence program, since named the TSP, to intercept international telephone and Internetcommunications of persons working and living in the United States. The spy program isundertaken without obtaining warrants and it is argued that it is therefore not within theparameters of the Foreign Intelligence Surveillance Act.The government argued that the lawsuit should be dismissed or alternatively be granted summaryjudgment based on the State Secrets Privilege and the plaintiffs lack of standing. The DistrictCourt 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 behalted immediately. An order was stayed pending appeal as no ruling was made on the allegedNSA database of domestic call detail records, citing the States Secrets Privilege. The DistrictCourt’s opinion examined the defendants claim over State Secrets, standing, and the Presidentswartime claim finding that the NSA surveillance Program violated statutory law in regard to the
  • 6. Freedoms Forsaken 6FISA. Furthermore, it was concluded that the NSA program violated the Constitution in regardto 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 alawsuit 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 protectindividual’s rights, as it is unreasonable for the courts to dismiss this case given that the evidenceis deemed inadmissible.In another case involving the NSA (Hepting v. AT&T 2006), a former AT&T engineer, cameforward alleging that he simply does not, "believe their claims that the NSAs spying program isreally limited to foreign communications or is otherwise consistent with the NSAs charter orwith FISA . . . unlike the controversy over targeted wiretaps of individuals phone calls, thispotential spying appears to be applied wholesale to all sorts of Internet communications ofcountless citizens." The AT&T engineer with the authorization of his employer assisted theNSA by installing a system in its San Francisco switching center, that was capable of monitoringbillions of bits of Internet traffic a second, including the playback of telephone calls routed onthe net. Such technological monitoring in effect captures, processes, and analyzes data not onlyfrom foreigners who access these communication lines but all American citizens. The classaction law suit alleges that AT&T permitted and assisted the NSA in unlawfully monitoring thecommunications of the United States, including AT&T customers, businesses and third partieswhose communications were routed through AT&Ts network, as well as Voice over IPtelephone calls routed via the net. The case is separate but related to, the NSA warrantlesssurveillance program in which the federal government agency bypassed the U.S. courts to
  • 7. Freedoms Forsaken 7monitor domestic phone calls without warrants. The courts in 2006 rejected a federalgovernment motion that invoked the State Secrets Privilege argument that any review of this casewould 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 theamendments to FISA in July of 2008 that granted retroactive immunity to telecommunicationscompanies for past violations of FISA. Subsequently the government moved to dismiss theHepting litigation. The Hepting plaintiffs opposed the motion to dismiss, asserting that the FISAAmendments Acts retroactive immunity provision was unconstitutional. The matter is underreview. The courts have seriously jeopardized the rule of law, there is an alarming lack ofaccountability to ensure that individual’s rights are protected and upheld.The final case involves the constitutional issue of freedom of information, bearing on the publicsright to know. The right to know is a perfect example of a "liberty" in the sense of being afundamental freedom or piece of substantive due process made up from other rights like freepress, right to education, and so forth. It is intimately involved with the forwarding or advancingof civil liberties. Various “public interest” groups sued the Department of Justice seeking therelease of information concerning certain persons detained in the wake of the 9/11 terroristattacks. 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 andrelease, 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. Freedoms Forsaken 8serious questions about “deprivations of fundamental due process, including imprisonmentwithout probable cause, interference with the right to counsel, and threats of serious bodilyinjury. The United States Government objected to the release of such information, citing the lawenforcement 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 informationconcerning persons detained during investigation into major terrorist attacks. The Courtexpressly noted the language of the First Amendment “Congress shall make no law ... abridgingthe freedom of speech, or of the press” and said “it does not expressly address the right of thepublic to receive information," rather, generally speaking, the First Amendment only broadlyprotects the public’s right to speak or to publish. Although we live in a free and open societywhere it is possible to reach out and communicate beyond our boarders, little by little our voicesare being censored under the guise of national security.The Need for OversightThe assumption underlying the adversarial system is that a just outcome is achieved when eachparty in the dispute has an equal opportunity to make its best arguments on the legal and factualissues at stake in the full glare of the public eye. This requires that all parties to the litigationhave access to evidence and information that may be helpful to resolving the case. Courtdecisions that dismiss cases or deny parties’ access to important evidence as a result of nationalsecurity has the potential of failing to provide redress to parties who have been wronged. In theyears since 9/11, cases involving security issues have become more central to our nationaldebate. Should secret evidence prevent the civil litigation system from dispensing justice,
  • 9. Freedoms Forsaken 9Congress needs to enact safeguards providing redress to wronged parties. A mandatory reviewmust be undertaken regarding all cases that infringe upon our citizens’ civil liberties to ensurethat our Constitutional Rights are protected and upheld. It is difficult to accurately assess thepotential threats to our civil liberties, as many cases are never even brought to trail, nor is thereany review to assess if an individual’s rights have been violated.Life during war timesHistory has demonstrated, in times of war, the courts have upheld restrictive laws that abridgerights otherwise protected by the Constitution. Freedoms forsaken today may not be regainedtomorrow. The Patriot Act allows officials to sidestep the Fourth Amendment by validating thedisregard of notice, probable cause, and proportionality. Having said this there are criticalinstances in American history, such as the Souths secession, Pearl Harbor, and the TetOffensive, 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, civilliberties "should be curtailed [because] the benefits in greater security outweigh the costs inreduced liberty," (Lavin & Stossel 2002).Newsdays Washington bureau chief Timothy Phelps assessed the political climate regardingprotecting news sources; "I dont sense as much of that today, even in the journalisticcommunity. The legal atmosphere, the corporate atmosphere, and the public atmosphere havechanged." Lawyers for the news media say that the legal climate for those seeking to protectconfidential sources is turning chillier, with more subpoenas being issued to reporters. It istroubling that there is no database that tracks such subpoenas, as some prosecutors dispute that
  • 10. Freedoms Forsaken 10they are on the rise, however a series of high-profile cases involving confidential sources has thenews media on edge (Seelye 2005). Regardless of our governments actions involving thedisclosure of confidential sources; "The biggest fear that most reporters have now is not havingtheir [mail, phone records monitored without consent] said John Solomon, who overseesinvestigative reporting for the Associated Press, "The biggest concern is that theyll write aboutsomething and will be forced to talk about it." What is troubling is that there is an environmentthat 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 donow.A federal judge in Portland, Oregon threw out the case against an American lawyer jailed for twoweeks as a material witness in the Madrid train bombing. The Federal Bureau of Investigationsaid it had mistakenly matched his fingerprints with prints on a plastic bag found near the sceneof the attacks that killed 191 people (Lichtblau & Risen 2006). Upon the lawyer’s release at anews conference, he stated as his body shook; "This is a serious infringement on our civilliberties”, adding, “[we live] in a climate of fear, this war on terrorism has gone to the extremeand innocent people are victims as a result." David Fidanque, executive director of the AmericanCivil 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 constitutionalcorners since 9/11," (Lichtblau & Risen 2006). The Oregon Justice Department is reported tohave invoked the States Secret Privilege at least 50 times since the 9/11 attacks. No one isaccusing 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. Freedoms Forsaken 11Our government’s responses to security threats may sometimes seem severe in times of crisis, aswas President Lincolns 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 eventhough their relative weight must then be less." The Bill of Rights always expands and shrinksin times of crisis. Extraordinary times require extraordinary measures. Americans regretteddeeply when our liberties were crushed during these times. We dont know when this war willend, this war on terrorism ((Lavin & Stossel 2002). The extraordinary measure being undertakento ensure our security at the cost of our civil liberties may well become customary. Theseprecedents will be argued in the years ahead as incidents of violations to our civil rights becomepervasive. Perhaps then the public and our courts will soon realize the far-reachingconsequences that diminish our rights and modifications will be made to the important securityacts to ensure and protect our Constitutional Rights.
  • 12. Freedoms Forsaken 12Government Sources – American Civil Liberties Union v. National Security Agency. (2007). http://www.cfr.org/ publication/11326/american_civil_liberties_union_et_al_v_national_security_agency_et_al.html Carroll v. United States. (1925). http://en.wikipedia.org/wiki/Carroll_v._United_States Center for National Security v. United States Department of Justice (2003). http://www.cnss.org /cnssvdoj.htm Civil Liberties Union v. the National Security Agency. (2007). http://en.wikipedia.org/ wiki/ACLU_v._NSA Freedom of Information Act. (1966). http://en.wikipedia.org/wiki/Freedom_of_ Information_Act_(United_States) Foreign Intelligence Surveillance Act. (1978). http://en.wikipedia.org/wiki/ Foreign_Intelligence_Surveillance_Act Hepting v. AT&T. (2006). http://en.wikipedia.org/wiki/Hepting_v._AT&T National Security Letters (1978). http://en.wikipedia.org/wiki/National_Security_Letter Katz v. United States. (1967). http://en.wikipedia.org/wiki/Katz_v._United_States The Patriot Act. (2001). http://en.wikipedia.org/wiki/USA_PATRIOT_Act The United States Constitution, Amendments I, IV, V, VI, IX, X, XIV. (1791, 1868). http://en.wikipedia.org/wiki/List_of_amendments_to_the_United_States_Constitution The United States v. Reynolds. (1953). http://en.wikipedia.org/wiki/ United_States_ v._Reynolds States Secrets Privilege. (1952). http://en.wikipedia.org/wiki/State_Secrets_PrivilegeCritical 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]. http://www.theatlantic.com/unbound/flashbks/liberties.htm 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. [PBS.org]. http://www.pbs.org/ 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.