Balance_in_Justice

Balance of Administration in Justice and Security Makeba Matthews University of Phoenix Legal Issues in Justice and Security CJA 550 Douglas Bryant III, JD March 11, 2008 Balance of Administration in Justice and Security History has shown time and again that the level of civil rights afforded citizens in the United States is inextricably related to the internal and external threats arrayed against the nation at any given point in time. In fact, throughout American history, the Constitution and Bill of Rights have taken a beating whenever the United States was threatened, and today the situation is certainly no different. To gain some additional insights into these issues, this paper provides a review of the relevant peer-reviewed and scholarly literature to describe the environment that the administration must work within to address issues concerning security and justice. A discussion concerning how the use of mass communication and innovations in technology have affected these security and justice issues is followed by an analysis of how the rights of American citizens have been adversely affected by the USA PATRIOT Act and other recent legislation. A summary of the research and important findings are presented in the conclusion. Review and Discussion It is possible to secure justice from a strictly legal perspective no matter what the national security climate may be, because the legal definition of “justice” suggests that it is a social construct that is subject to judicial whim and the interpretation of the laws of the land at any given point in time. For example, according to Black’s Law Dictionary (1991), justice is, “The proper administration of laws. In jurisprudence, the constant and perpetual disposition of legal matters or dispute to render every man his due” (p. 864). The nebulous concept of “every man’s due,” though, depends on what the law says it is and this concept changes according to the level of threat the country may be experiencing. According to Abdolian and her colleagues (2003), “Under the pretense of enhancing national security, the USA PATRIOT Act concentrates increased new powers in the executive branch of government, while decreasing judicial oversight” (p. 1429). Some of the more flagrant abuses of American civil liberties include the following measures: 1. Creation of a New Crime. Section 802 of the Act creates a new federal crime of "domestic terrorism," which includes any dangerous acts that "appear to be intended ... to influence the policy of a government by intimidation or coercion." Broadly applied, this could be used to silence any political dissent critical of government policies. 2. Diminished Due Process for Immigrants. Section 411 of the Act expands the term "engage in terrorist activity" to include any use of a weapon, as well as such nonviolent acts as fund-raising for suspect organizations. Moreover, it allows for the detention or removal of non-citizens with little or no judicial review. The U.S. Attorney General and Secretary of State can claim a domestic group to be a terrorist organization, and deport any non-citizen members. 3. Diminished Privacy. The Act severely curtails the right to privacy at several turns, including broadening the grounds for increased surveillance and wiretap authority, sneak-and-peek searches, tracking Internet usage, and accessing private records. 4. Lowering Standards of Probable Cause. Section 215 of the Act reduces the traditional Fourth Amendment requirements for probable cause, as previously interpreted by the Foreign Intelligence Surveillance Act of 1978 ("FISA"). 5. Sharing of Intelligence. Section 203 of the Act now permits unprecedented sharing of sensitive information across several independent agencies, including the FBI, CIA, INS, and other state and federal agencies (Abdolian et al, p. 1430). Based on these and other provisions of the USA PATRIOT Act, more than 1,200 immigrants in the United States were immediately detained for an extended period without being charged with committing a terrorist act (Abdolian et al.). Furthermore, habeas proceedings are civil rather than criminal and the U.S. government therefore does not have a Sixth Amendment responsibility to provide these non-citizens with free counsel in such proceedings (Abdolian et al.). According to Tyler (2006), “The Suspension Clause is one of the few express ‘emergency’ provisions in our Constitution. It provides: ‘The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it’” (quoted at p. 333). While President Lincoln used the Suspension Clause during the Civil War based on the perceived threat to national security, Tyler suggests that the US PATRIOT Act could reasonably be expected to be further expanded to suspend the Writ of Habeas Corpus to all American citizens: “Following the devastating September 11 attacks, the Bush Administration apparently asked Congress to suspend the writ of habeas corpus in some fashion. Five years later, this country is waging a war on terrorism of indefinite duration. The potential for additional terrorist attacks on American soil is unfortunately all too real, and there is good reason to believe that another attack would be met with invocation of the suspension power by Congress” (p. 333). Some observers have even suggested that the shooting wars being prosecuted in Afghanistan and Iraq today are simply the “tail waging the dog,” and are part of an evil Cheney-Halliburton cabal to bleed the American taxpayer dry while unjustly enriching a select few cronies. Nevertheless, the wars are on and the USA PATRIOT Act is firmly in place, and it looks like things are going to get worse before they get better in terms of civil liberties afforded the American public. The world is a scary place today, certainly, and by keeping the potential threat represented by Iran’s dismantled nuclear program and similar threats alive in the minds of the American public, the harsh provisions of the USA PATRIOT Act seem a little more palatable to many people, especially because the Bush administration keeps reminding them about just how scared they should be. Complicating the picture is the likely use of technological innovations by non-state actors in the future that make such reminders today all the more believable. In this regard, Ackerman (2004) emphasizes that, “Terrorist attacks will be a recurring part of our future. The balance of technology has shifted, making it possible for a small band of zealots to wreak devastation where we least expect it--not on a plane next time, but with poison gas in the subway or a biotoxin in the water supply. The attack of September 11 is the prototype for many events that will litter the twenty-first century” (emphasis added) (p. 1029). Conclusion Following the terrorist attacks of September 11, 2001, many observers were heard to say, “Things would never be the same again,” and the passage of the USA PATRIOT Act and the concomitant diminution of civil rights suggests that in the short-term, these observations have been correct. Indeed, American civil liberties have been trounced by the Act and other measures designed to wage a war on terrorism, and only time will tell when and if they will fully rebound to their pre-September 11 levels. In this regard, the research clearly suggests that when and if the current real and perceived threats against the nation are resolved, the concept of justice will reassume center stage and civil rights advocates will take up the hue and cry demanding the rights guaranteed them by the U.S. Constitution rather than the watered-down version being foisted on the American public today in the name of counter-terrorism. In the final analysis, it would seem reasonable to conclude that justice and security are not mutually exclusive, and a balanced approach can be achieved in any situation, even when the nation is at war. The question remains, though, what quality of justice will be served and what laws will be in place to “render every man his dues.” References Abdolian, L. F., & Takooshian, H. (2003). The USA PATRIOT act: Civil liberties, the media, and public opinion. Fordham Urban Law Journal, 30, 1429. Ackerman, B. (2004). The emergency Constitution. Yale Law Journal, 113(5), 1029. Black’s law dictionary. (1991). St. Paul, Minnesota: West Publishing Co. Tyler, A. L. (2006). Is suspension a political question' Stanford Law Review, 59(2), 333.