chapter sixteen: protecting the homeland and protecting civil liberties

Chapter Sixteen:Chapter Sixteen:

Protecting the Homeland and Protecting the Homeland and Protecting Civil LibertiesProtecting Civil Liberties

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

Civil DefenseCivil Defense

The target of terrorismThe target of terrorism The target of terrorism is social orderThe target of terrorism is social order Combating terrorism involves the Combating terrorism involves the

preservation and protection of social orderpreservation and protection of social order Terrorism targets civil society and civilian Terrorism targets civil society and civilian

targetstargets To defend against terrorism, a nation To defend against terrorism, a nation

must use civil defensemust use civil defense All levels of society must become involved All levels of society must become involved

in homeland securityin homeland security

Defense in Depth: Why Civil Defense in Depth: Why Civil Liberties Interact with Civil DefenseLiberties Interact with Civil Defense

Issues surrounding homeland defenseIssues surrounding homeland defense There is the assumption that the There is the assumption that the

community wants to fight for its existencecommunity wants to fight for its existence There is an implication that all members There is an implication that all members

of the community are committed to of the community are committed to preserving a similar goalpreserving a similar goal

Members of a group are asked to be Members of a group are asked to be sufficiently ruthless with enemies and to sufficiently ruthless with enemies and to have the political will for rigid self-have the political will for rigid self-examinationexamination


Ideal freedom versus state powerIdeal freedom versus state power To engage in a struggle against To engage in a struggle against

terrorism, Americans must examine terrorism, Americans must examine themselves and honestly select a themselves and honestly select a course of action they will acceptcourse of action they will accept

Americans will be better prepared to Americans will be better prepared to secure the homeland if they have secure the homeland if they have engaged in a nationwide discussion of engaged in a nationwide discussion of defense in depth and its impact on defense in depth and its impact on civil liberties before an attackcivil liberties before an attack


The USA Patriot ActThe USA Patriot Act

Title ITitle I Designed to enhance domestic Designed to enhance domestic

securitysecurity Title IITitle II

Designed to improve the government’s Designed to improve the government’s ability to gather electronic evidenceability to gather electronic evidence

Contains a sunset clause ending the Contains a sunset clause ending the provisions of the Patriot Act unless it is provisions of the Patriot Act unless it is renewed, and demands congressional renewed, and demands congressional oversightoversight



Title IIITitle III Empowers federal law enforcement to Empowers federal law enforcement to

interact with banking regulators and interact with banking regulators and provides arrest power outside the U.S. provides arrest power outside the U.S. borders for terrorist financing and borders for terrorist financing and money launderingmoney laundering

Title IVTitle IV Increases border patrols and monitoring Increases border patrols and monitoring

of foreigners with in the United States, of foreigners with in the United States, while mandating detention of suspected while mandating detention of suspected terroriststerrorists

The USA Patriot ActThe USA Patriot Act Title VIITitle VII

Focuses on police information sharing, Focuses on police information sharing, specifically targeting a nationwide police specifically targeting a nationwide police investigative network known as the investigative network known as the Regional Information Sharing SystemRegional Information Sharing System

Support of the Patriot ActSupport of the Patriot Act Supporters believe the Patriot Act will Supporters believe the Patriot Act will

increase federal law enforcement’s increase federal law enforcement’s ability to respond to terrorism and will ability to respond to terrorism and will create an intelligence conduit among create an intelligence conduit among local, state, and federal police agencieslocal, state, and federal police agencies

The USA Patriot ActThe USA Patriot Act Opponents of the Patriot ActOpponents of the Patriot Act

Opponents believe that the Patriot Opponents believe that the Patriot Act goes too far in threatening civil Act goes too far in threatening civil liberties while expanding police liberties while expanding police powerspowers

Title II and the Debate Title II and the Debate about Intelligence about Intelligence

GatheringGathering

Title II and the Debate about Title II and the Debate about Intelligence GatheringIntelligence Gathering

Civil libertiesCivil liberties Citizens are free from having their Citizens are free from having their

government infringe unreasonably government infringe unreasonably on the freedoms guaranteed in the on the freedoms guaranteed in the Constitution and the Bill of RightsConstitution and the Bill of Rights

Increasing the ability of the Increasing the ability of the government to collect information government to collect information increases executive powerincreases executive power


Separation of powersSeparation of powers The U.S. Constitution separates The U.S. Constitution separates

the powers of the three branches the powers of the three branches of government: executive, of government: executive, legislative, and judicial. This is legislative, and judicial. This is known as the separation of known as the separation of powerspowers,, and these powers are also and these powers are also separated in the criminal justice separated in the criminal justice systemsystem


The Fourteenth AmendmentThe Fourteenth Amendment The Fourteenth Amendment The Fourteenth Amendment

ensures that suspects cannot lose ensures that suspects cannot lose their rights except by the due their rights except by the due process of lawprocess of law

The interpretations of the The interpretations of the Constitution and its amendments Constitution and its amendments have protected American liberties have protected American liberties for more than two centuriesfor more than two centuries


Disagreements about the nature of terrorismDisagreements about the nature of terrorism Many people disagree about the nature of Many people disagree about the nature of

terrorism. Many legal scholars argue that terrorism. Many legal scholars argue that terrorism is not a continuing emergencyterrorism is not a continuing emergency

Criminal justice agencies do not take Criminal justice agencies do not take actions for war; they protect individual actions for war; they protect individual rights, and local, state, and federal courts rights, and local, state, and federal courts are not charged with national defenseare not charged with national defense

Controversy arises when criminal systems Controversy arises when criminal systems and the defense establishment begin to and the defense establishment begin to blend activitiesblend activities


Patrick Leahy (D-Vermont)Patrick Leahy (D-Vermont) According to Senator Leahy, President According to Senator Leahy, President

Bush’s antiterrorist proposals Bush’s antiterrorist proposals threatened the system of checks and threatened the system of checks and balances, giving the executive branch balances, giving the executive branch of government too much powerof government too much power

Attorney General John AshcroftAttorney General John Ashcroft Ashcroft argues that the proposed Ashcroft argues that the proposed

guidelines were solely for the purpose guidelines were solely for the purpose of protecting the country from terroristsof protecting the country from terrorists


Nancy ChangNancy Chang Chang criticizes the Patriot Act on Chang criticizes the Patriot Act on

the basis of democracythe basis of democracy By allowing the government to By allowing the government to

blur the distinction between blur the distinction between defense intelligence and criminal defense intelligence and criminal evidence, the Patriot Act tramples evidence, the Patriot Act tramples on reasonable expectations of on reasonable expectations of privacyprivacy


The Patriot Act not an attack on The Patriot Act not an attack on individual rightsindividual rights Senator Dianne Feinstein (D-Senator Dianne Feinstein (D-

California) believes we cannot rush to California) believes we cannot rush to judgment. Time will show how the act judgment. Time will show how the act is used in the real worldis used in the real world

Senator Charles Schuman (D-New Senator Charles Schuman (D-New York) believes the law is balanced. It York) believes the law is balanced. It limits personal freedom while limits personal freedom while reasonably enhancing securityreasonably enhancing security

The Case for Increasing The Case for Increasing Executive Powers in the Executive Powers in the

Face of TerrorismFace of Terrorism

The Case for Increasing Executive The Case for Increasing Executive Powers in the Face of TerrorismPowers in the Face of Terrorism Lewis KatzLewis Katz

Katz says the real test of the Fourth Katz says the real test of the Fourth Amendment is reasonablenessAmendment is reasonableness

A system would not be unconstitutional, A system would not be unconstitutional, provided citizens were not ordered to provided citizens were not ordered to produce identification without reasonable produce identification without reasonable suspicionsuspicion

Some government actions are unreasonableSome government actions are unreasonable Eavesdropping on attorney-client Eavesdropping on attorney-client

conversationsconversations Military tribunalsMilitary tribunals

The Case for Increasing Executive The Case for Increasing Executive Powers in the Face of TerrorismPowers in the Face of Terrorism

Sherry ColbSherry Colb Colb applies a doctrine of reasonablenessColb applies a doctrine of reasonableness Colb believes any profiling system, including Colb believes any profiling system, including

one having race as a factor, will yield many one having race as a factor, will yield many more investigative inquiries than apprehensionsmore investigative inquiries than apprehensions

There is only a small number of terrorists in any There is only a small number of terrorists in any group, regardless of their profilegroup, regardless of their profile

If a terrorist profile develops and it includes race If a terrorist profile develops and it includes race as one of the characteristics, Colb suggests that as one of the characteristics, Colb suggests that some opponents of racial profiling may find they some opponents of racial profiling may find they endorse it in the case of counterterrorismendorse it in the case of counterterrorism

Twists in the criminal justice systemTwists in the criminal justice system Two foreign-born terrorists were arrested, Two foreign-born terrorists were arrested,

and at the same time, two U.S. citizens, and at the same time, two U.S. citizens, Yasser Esam Hawdi and Jose Padilla were Yasser Esam Hawdi and Jose Padilla were held by military force without representationheld by military force without representation

Hawdi and Padilla, both of whom would have Hawdi and Padilla, both of whom would have been criminally charged before September been criminally charged before September 11, were detained much like prisoners of 11, were detained much like prisoners of war, while two alleged terrorists arrested on war, while two alleged terrorists arrested on U.S. soil were afforded the rights of criminal U.S. soil were afforded the rights of criminal suspects. Hawdi was released in September suspects. Hawdi was released in September 20042004



Ruth WedgewoodRuth Wedgewood Al Qaeda has learned it is best to recruit U.S. citizens Al Qaeda has learned it is best to recruit U.S. citizens

for operations because citizens are not subject to for operations because citizens are not subject to arbitrary arrestarbitrary arrest

Common sense dictates that the detention of Common sense dictates that the detention of terrorists does not follow the pattern of criminal terrorists does not follow the pattern of criminal arrestsarrests

The purpose of detention, she argues, is not to The purpose of detention, she argues, is not to engage in excessive punishment, but to keep engage in excessive punishment, but to keep terrorists from returning to societyterrorists from returning to society

Wedgwood argues that indefinite detention by Wedgwood argues that indefinite detention by executive order is not the most suitable alternativeexecutive order is not the most suitable alternative

Common sense demands a reasonable solution to the Common sense demands a reasonable solution to the apparent dichotomy between freedom and securityapparent dichotomy between freedom and security


E.V. KonotorovichE.V. Konotorovich According to Konotorovich, the According to Konotorovich, the

stakes are so high that the United stakes are so high that the United States must make all reasonable States must make all reasonable efforts to stop the next attackefforts to stop the next attack

The Case against Increasing The Case against Increasing Executive Powers in the Executive Powers in the

Face of TerrorismFace of Terrorism

The Case against Increasing Executive The Case against Increasing Executive Powers in the Face of TerrorismPowers in the Face of Terrorism

Susan HermanSusan Herman Herman asserts that Congress has Herman asserts that Congress has

relinquished its power to the relinquished its power to the president, and Congress also failed president, and Congress also failed to provide any room for judicial to provide any room for judicial reviewreview

The Case against Increasing Executive The Case against Increasing Executive Powers in the Face of TerrorismPowers in the Face of Terrorism The 1968 Crime Control and Safe Streets The 1968 Crime Control and Safe Streets

ActAct Title III of the Safe Streets Act mandates Title III of the Safe Streets Act mandates

judicial review of police surveillance judicial review of police surveillance Under Title III, criminal evidence cannot Under Title III, criminal evidence cannot

be gathered without prior approval from a be gathered without prior approval from a federal court, and while a judge reviews a federal court, and while a judge reviews a request for surveillance in secrecy, the request for surveillance in secrecy, the police must prove that wiretaps or other police must prove that wiretaps or other means of electronic eavesdropping will means of electronic eavesdropping will lead to probable causelead to probable cause

The Case against Increasing Executive The Case against Increasing Executive Powers in the Face of TerrorismPowers in the Face of Terrorism The 1978 Foreign Intelligence The 1978 Foreign Intelligence

Surveillance ActSurveillance Act Under FISA, various forms of Under FISA, various forms of

eavesdropping can be used to eavesdropping can be used to gather intelligencegather intelligence

Any evidence gathered during the Any evidence gathered during the investigation cannot be used in a investigation cannot be used in a criminal prosecutioncriminal prosecution

The Case against Increasing Executive The Case against Increasing Executive Powers in the Face of TerrorismPowers in the Face of Terrorism FISA and surveillance proposed under the Patriot ActFISA and surveillance proposed under the Patriot Act

The Patriot Act allows the government to watch The Patriot Act allows the government to watch its own citizens with similar rules as the FISAits own citizens with similar rules as the FISA

There is no guarantee that such surveillance will There is no guarantee that such surveillance will exclude evidence used in criminal prosecutionsexclude evidence used in criminal prosecutions

The Patriot Act concentrates too much power in The Patriot Act concentrates too much power in the executive branchthe executive branch

The Patriot Act also gives the attorney general The Patriot Act also gives the attorney general and the secretary of state the power to designate and the secretary of state the power to designate certain associations as terrorist groups, and they certain associations as terrorist groups, and they may take actions against people and may take actions against people and organizations associated with these groupsorganizations associated with these groups

The Case against Increasing Executive The Case against Increasing Executive Powers in the Face of TerrorismPowers in the Face of Terrorism The American Civil Liberties UnionThe American Civil Liberties Union

The ACLU expresses two concernsThe ACLU expresses two concerns After September 11, the attorney general After September 11, the attorney general

ordered the detention of several hundred ordered the detention of several hundred immigrants. He refused to openly charge immigrants. He refused to openly charge most of the detainees and refused to make most of the detainees and refused to make the list known for several monthsthe list known for several months

Attorney General Ashcroft sought to have Attorney General Ashcroft sought to have the rules for detaining and deporting the rules for detaining and deporting immigrants streamlined. He wanted to make immigrants streamlined. He wanted to make the process more efficient by decreasing the the process more efficient by decreasing the amount of judicial review involved in amount of judicial review involved in immigration and naturalization casesimmigration and naturalization cases

The Case against Increasing Executive The Case against Increasing Executive Powers in the Face of TerrorismPowers in the Face of Terrorism Ali MaqtariAli Maqtari

Maqtari was stopped by police for Maqtari was stopped by police for questioning, and he was detained without questioning, and he was detained without probable cause to believe he had probable cause to believe he had committed a crime. He was held for eight committed a crime. He was held for eight weeks without formal chargesweeks without formal charges

After Maqtari was granted a hearing, a After Maqtari was granted a hearing, a court ruled that the government’s position court ruled that the government’s position was unjustified and he was released. was unjustified and he was released. Without effective judicial review, the ACLU Without effective judicial review, the ACLU says, Maqtari may not have been releasedsays, Maqtari may not have been released

The Debate Concerning The Debate Concerning Intelligence GatheringIntelligence Gathering

The Debate Concerning The Debate Concerning Intelligence GatheringIntelligence Gathering

The dilemma when terrorism moves the police into The dilemma when terrorism moves the police into a new intelligence realma new intelligence realm The criminal justice system collects criminal The criminal justice system collects criminal

intelligence, not information regarding national intelligence, not information regarding national securitysecurity

To gather counterterrorist intelligence, the To gather counterterrorist intelligence, the police are forced to collect political informationpolice are forced to collect political information

The police are not designed to collect political The police are not designed to collect political informationinformation

Although not a formal role, the preoccupation Although not a formal role, the preoccupation with responding to and preventing crime has with responding to and preventing crime has become the de factobecome the de facto purpose of American law purpose of American law enforcementenforcement

The Debate ConcerningThe Debate ConcerningIntelligence GatheringIntelligence Gathering

The problems posed by both domestic The problems posed by both domestic and international terrorismand international terrorism On the one hand, state and local law On the one hand, state and local law

enforcement agencies are in a unique enforcement agencies are in a unique position to collect and analyze position to collect and analyze information from their communitiesinformation from their communities

On the other hand, when the criminal On the other hand, when the criminal justice system has participated in justice system has participated in national defense in the past, abuses national defense in the past, abuses have occurredhave occurred

Militarization and Police Militarization and Police WorkWork

Militarization and Police WorkMilitarization and Police Work MilitarizationMilitarization

Military forces are necessary for national defense, Military forces are necessary for national defense, and they are organized along principles of rigid role and they are organized along principles of rigid role structures, hierarchies, and discipline. A military structures, hierarchies, and discipline. A military posture prescribes unquestioning obedience to posture prescribes unquestioning obedience to orders and aggressive action in the face of an orders and aggressive action in the face of an enemyenemy

Any bureaucracy can be militarized when it adopts Any bureaucracy can be militarized when it adopts military postures and attitudes, and the police are military postures and attitudes, and the police are no exceptionno exception

Militarization refers to a process in which individual Militarization refers to a process in which individual police units or entire agencies begin to approach police units or entire agencies begin to approach specific problems with military values and attitudesspecific problems with military values and attitudes

Militarization and Police WorkMilitarization and Police Work Terrorism and the change in attitudesTerrorism and the change in attitudes

Since many forms of terrorism require Since many forms of terrorism require resources beyond the capacity of local resources beyond the capacity of local police agencies, law enforcement has police agencies, law enforcement has been forced to turn to the military for been forced to turn to the military for assistanceassistance

State and local law enforcement State and local law enforcement agencies have few international agencies have few international resources compared with the defense resources compared with the defense and intelligence communitiesand intelligence communities

Terrorism demands a team approachTerrorism demands a team approach

Militarization and Police WorkMilitarization and Police Work Field ForceField Force

Field force is a technique for Field force is a technique for responding to urban riotsresponding to urban riots

The concept is based on The concept is based on responding to a growing disorderly responding to a growing disorderly crowd, a crowd that can become a crowd, a crowd that can become a precursor to a riot, with a massive precursor to a riot, with a massive show of organized police forceshow of organized police force

Militarization and Police WorkMilitarization and Police Work Police tactical unitsPolice tactical units

These special operations units are These special operations units are called out to deal with barricaded called out to deal with barricaded gunmen, hostage situations, and gunmen, hostage situations, and some forms of terrorismsome forms of terrorism

Tactical units use military Tactical units use military weapons, small-unit tactics, and weapons, small-unit tactics, and recognized military small-unit recognized military small-unit command structurescommand structures

Militarization and Police WorkMilitarization and Police Work Peter KraskaPeter Kraska

Kraska argues that police in Kraska argues that police in America have gradually assumed a America have gradually assumed a more military posture since violent more military posture since violent standoffs with domestic standoffs with domestic extremists, and he fears terrorism extremists, and he fears terrorism will lead to a further excuse to will lead to a further excuse to militarizemilitarize

Militarization and Police WorkMilitarization and Police Work View of terrorist analystsView of terrorist analysts

Most terrorist analysts believe terrorism Most terrorist analysts believe terrorism is best left to the police whenever is best left to the police whenever possiblepossible

The difficulty is that the growing The difficulty is that the growing devastation of single events sometimes devastation of single events sometimes takes the problem beyond local police takes the problem beyond local police controlcontrol

Military forces are often targeted, and Military forces are often targeted, and they must develop forces to protect they must develop forces to protect themselvesthemselves

chapter sixteen: protecting the homeland and protecting civil liberties

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