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The Patriot Act

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The events of September 11th, 2001 potentially changed the legal structure of the United States. Following the terrorist attacks on the World Trade Center and the Pentagon, the President and Congress saw fit to protect the United States by passing a bill called the Patriot Act. The Patriot Act significantly expanded the powers of law enforcement by allowing law enforcement and intelligence agencies to use types of electronic surveillance that were previously only allowed with legal warrants (Ibid, 2001). Additionally, the Patriot Act allows government agencies to detain suspected terrorists for unspecified lengths of time in order to investigate their activities (Ibid, 2001). The detainment of terrorist suspects does not allow these individuals access to an attorney, a trial, or any other guarantee promised in the Constitution. The United States legal and judicial systems utilize a network of checks and balances to ensure that the rights of citizens, as enumerated by the United States Constitution, are not violated. These systems call for crime investigation to require a warrant issued by the judicial branch in order to execute any search or seizure of personal property, as declared by the Fourth Amendment of the United States Constitution (Madison, 1789).

The framers of the United States started the Constitution with a Bill of Rights that set our inalienable rights. These rights are not allowed to be violated and the legal system is designed to protect these rights, even if suspected of a crime. If the police want to investigate, interrogate, or search for evidence of a crime, the police can only do so after obtaining a warrant from a member of the judiciary. A warrant requires that there be sufficient evidence of a crime to have

reasonable suspicion that a crime has been committed in order for police or law enforcement to have grounds to infringe on a suspect's Constitutional rights to investigate and convict them of a crime. The only exceptions to search and seizure warrants are as follows: during a crime in progress, if there is sufficient reason to believe that the evidence is about to be destroyed, if the evidence was collected during a legitimate traffic stop, or if the was a dangerous or life-threatening situation. Evidence obtained without a warrant can be suppressed in trial under the "fruit from the poisonous tree" doctrine (Ibid, 2001). All of this changed on 9/11 and the passing of the Patriot Act in response to the attacks.

The Patriot Act allows law enforcement agencies to circumvent set legal standards in order to "protect" the country from the danger of terrorism. An example of the expansion of the power of law enforcement that the Patriot Act allows is the use of electronic surveillance. Prior to the Patriot Act, in the case Katz v. United States, the Supreme court "held that wiretapping without a warrant was a violation of the search and seizure clause" of the United States Constitution (Katsh and Rose, 2000). In this case, police officers wiretapped a public payphone in order to scan for criminal behavior. This is the same activity that is now allowed without a warrant under the Patriot Act to investigate terrorist activity. However, in Katz, the Supreme Court felt that Katz had a sufficient expectation of privacy in the telephone booth that could only be violated by obtaining a legal warrant from the courts based on sufficient evidence or reasonable suspicion. The court recognized that the Constitution protects people "and not simply areas-against reasonable searches and seizures" (Ibid, 2001).

In the case Kyllo v. United States, the Supreme Court expanded the Katz holding and ruled that the use of thermal imagining also violated the search and seizure clause of the Constitution. In this case the court made the distinction between using surveillance "through-the-wall" and surveillance "off-the-wall." In surveillance "through-the-wall, the observer is given access in a private area by using technologies that enable the observer to hear or see what is going on through the walls (Ibid, 2001). Conversely, in "off-the-wall" surveillance, the observer gains information about a suspect by observing things from the exterior of the home without using any technological devices (Ibid, 2001). The Supreme Court holds that "through-the-wall" observations are protected by the Fourth Amendment's search and seizure clause. Their logic for this holding is that they believe that the search and seizure clause of the Constitution affords people the protection of privacy in the sphere of their private area, i.e. home, business, etc. Additionally, since the court held in Katz that this clause protects people as well, it would be a violation of their rights to listen in or look through the walls of their private area to look for criminal activity.

The Patriot Act also gives government agencies the right to trespass on personal computers and monitor internet activity. Prior to the Patriot Act a warrant was needed to obtain information from a suspect's personal computer and to monitor internet activity. However, since September 11th, warrants are no longer necessary to obtain this information. Now the government can look through the websites that we visit and gain access to our e-mails. The information gathered or deducted from our activities can obtain personal

information that is part of our personal sphere which protected by the Fourth Amendment.

The Patriot Act also allows government agencies to detain suspected terrorists without pursuing them through the legal system. Suspected terrorist can be detained indefinitely for suspicion of terrorism. The evidence for terrorist suspects does not need to be evaluated by the judicial branch and their captivity does not need to be approved by a judge or jury. The Bill of Rights guarantees the due process of law by affording people the right to a lawyer, a trial, and a jury of peers to determine their fate. Basically, anyone suspected of terrorism is not afforded any of these guarantees. The guarantees given to us by the Bill of Rights in the Constitution we put there to protect the individual from abuses of state power. The system of checks and balances that is part of our society further protects from abuses of power. The Patriot Act weakened, or arguably eliminated, the system of checks and balances in the judiciary in order to better equip the government for the war on terrorism.

The Patriot Act was designed to allow law enforcement agencies the means to better investigate terrorist activity in order to protect the nation from the threat of terrorism. As is the case with circumventing any right, the state must have a legitimate interest in order to violate a right. In the case of the Patriot Act, the President and Congress argue that the United States has the greatest interest in the protection of its people, which outweighs the interests of an individual in this area. The problem with this assertion is that the government could have made the same claim all along involving the interest of the state in

getting criminals off the streets as a reason to violate the rights set in the Constitution. The Supreme Court has never allowed the assertion that the rights of the state outweigh the rights of the individual easily and the court has taken the role as the protector of individual rights.

With the events of 9/11, the Patriot Act made it difficult for Muslim groups to form organizations because they were sought to be “terrorist” groups. Although there is much diversity of religion in America, Muslims faced the hostility of discrimination. Mosques were promoting an environment of interfaith interaction and respect in order to remove the terrorist label from the Muslim religion (Abdo, 2013). Forming their own political parties would be frowned upon.

It is also true that terrorism is unlike any other threat that has come our soil. Terrorists work under ground to make plans to willfully kill innocent people for political or ideological reasons. They are fanatics that use ruthless means to achieve their goals. Most importantly, it became clear after 9/11 that terrorist could live among us and be part of our institutions while they are plotting their evil plans. The ability to plan and execute the attacks on 9/11 has terrified the American public. After the attacks the realism that terrorism could happen here became painfully clear. How are we to protect ourselves? The answer to this question by the President and Congress is to forfeit some of our rights in order to allow law enforcement easier means to investigate terrorist activity. We are asked to give up our rights in order to better protect ourselves from potentially dangerous circumstances; but, is this really necessary?

Is giving up our rights really necessary to protect us from terrorism? In order to establish legitimate grounds to obtain a search warrant there needs to be reasonable cause. Reasonable cause is a very loose term. It can require a lot of evidence that a crime has been or will be committed or simply require enough circumstantial evidence that it is reasonable to believe that the suspect is involved in criminal activity. Warrants do not necessarily require a long period of time to build a case, as an indictment could. Reasonable suspicion is usually enough to obtain a warrant. Therefore, would it be that difficult and time consuming for law enforcement agencies to justify the need to investigate a suspect using a warrant? It would have been better for the protection of Constitutional rights to have lessoned the requirements for an invasive electronic surveillance search warrant than to order the American public to forfeit an inalienable right in this matter. Additionally, the Patriot Act should have simply called for the suspicion of terrorism as grounds for obtaining a warrant for invasive electronic surveillance.

Additionally, the Patriot Act allows the government to detain individuals for the suspicion of terrorism. In order to get around the legality of this, the government utilizes the avenue of civil commitment based on a violation of work or student visas for example. As seen in the rulings in cases such as Hendricks, the government can detain an individual without going through legal channels as long as the commitment is not of a penal nature (Ibid, 2001). In order for a commitment to be considered penal, the purpose of the commitment would have to be to punish or to deter others. Using the same logic, the government argues

that they are investigating suspected terrorist activity before sending the suspect back to their respective countries due to a violation of their visas.

Prior to 9/11, intelligence agencies had reports that there may have been an impending terrorist attack on the United States. The reports and evidence for the impeding attacks was not acted upon or was taken as only a threat. Therefore, the government had the information needed to prevent a terrorist attack without resorting to impeding on individual rights and stomping on the Constitution of the United States. The government did not need to detain individuals indefinitely or have access to everyone's e-mail in order to get this information. They already had it and did nothing. If anything, the terrorist attacks resulted from a decrease in the intelligence budget and resources than an inability to obtain information because of search warrant restrictions. Therefore, the Patriot Act is not necessary to really protect the state from terrorist activities.

Additionally, there is no time limit or legal limit to what the Patriot Act will allow. There is no expiration to the Patriot Act. According to Congress, the act will be active until it is no longer necessary. When will it be no longer necessary? The Patriot Act had taken the power of judicial interpretation from the courts and no longer requires the courts to determine the reasonableness of police activity. Also, there is no limit to when the government could use this act in lieu of seeking a legitimate warrant. The problem is that the Constitution created a government that utilizes a system of checks and balances to balance the power between the branches of the government. It is infeasible to think that in one act the President and Congress has allowed law enforcement agencies a way to get around the

ideal of checks and balances. The system of checks and balances utilized by the Constitution was used to ensure the balance of power. Without this system unchecked power can be dangerous to the rights of people, both innocent and guilty.

The era that we are entering in following the Patriot Act has the potential of impeding on our rights. There is no limit to what the government could do in the name of the war on terrorism. The Constitution was designed to protect the individual from invasions on individual rights by the state. With the Patriot Act, the protection that we are afforded seems to be in jeopardy. Although the government has not actively used the provisions on crimes other than terrorism that we know of, they could if they wanted to. Ultimately, the Constitution has no limitless provision in order to protect citizens from external threats. Exceptions that are made allowing the rights of the individual to be second to the state are made on an individual basis and are subject to the scrutiny of the courts. The Patriot Act takes away the judicial scrutiny that is designed to protect us from violations. Therefore, the Patriot Act itself allows the government the right to violate the Muslim’s rights and also our rights if it sees fit, so it ultimately is unconstitutional.

References

Ibid (2001). EFF Analysis of the Provisions of the USA Patriot Act, retrieved from http://w2.eff.org/Privacy/Surveillance/Terrorism/20011031_eff_usa_patriot_analysis.php

Katsh and Rose (2000). Taking Sides: Clashing Views on Controversial Legal Issues, p. 157.

Jefferson, T. (1776, July 4). The Declaration of Independence of The United States of America. Retrieved from http://idcontent.bellevue.edu/content/CAS/eBooks/Kirkpatrick/Book1.pdf

Madison, J. (1789, September 25). The Bill of Rights. Retrieved from:http://idcontent.bellevue.edu/content/CAS/eBooks/Kirkpatrick/Book1.pdf

Abdo, G. (2013). American Muslims. Retrieved from http://www.wilsoncenter.org/event/american-muslims-911

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