Jonathan R. White
www.cengage.com/cj/white
Chapter 16:
Homeland Security and Civil
Liberties
Rosemary Arway
Hodges University
Security and Liberty
 There are always trade offs when
considering security.
 The question of the suspension of liberty
lies at the root of arguments concerning
homeland security.
o Open nature of democratic societies make the
social structure open to attack.
o Limiting civil liberties is far more dangerous than
the more limited threats posed by terrorism.
o Decreasing civil liberties limits individual freedom
and increases government power.
Human Rights and Civil Liberties
 Civil Liberties
o Individual freedom people have under a system
of law
 Two major approaches:
o Favoring strong security at any cost overlooks
human rights abuses and deemphasizes civil
liberties
o Favoring civil liberties deemphasizes security
while emphasizing human rights
Human Rights and Civil Liberties
 Human Rights
o Focus on the legal right to exist in a society
where people are free from arbitrary
coercion.
o Human rights intersect terrorism and
homeland security in two areas:
▪ Terrorist attacks on innocent civilians violate the
right of people to exist apart from political
violence against innocent people.
▪ Governments countering terrorists must respect
the human rights of their opponents.
Defense in Depth
 Changes in how war is fought affect the structure of
civil society.
 Terrorist fight against the way people live.
o
Combating terrorism involves preservation and protection
of social order.
 To defend against terrorism a nation or culture must
use civil defense.
 The idea of defense in depth implies that all levels
of society must become involved in homeland
security.
o
o
Society fights for its existence; all members are committed
to preserving a similar goal.
Society may have to sacrifice the assumption of everyday
live.
Defense in Depth
 The United States of America, founded on the
principles of democracy and individual
freedom that have been developed in the West
for the past thousand years, struggles with civil
rights:
o Defense in depth alters the balance by
emphasizing state power.
o Discussing Homeland Security always brings to
attention topics of individual rights.
o In order to be better prepared to secure homeland,
Americans must engage in nationwide discussion
of defense in depth and its impact on civil liberties
before an attack.
Civil Liberties and Federal Power
 The USA Patriot Act of 2001
o The most controversial aspect of
counterterrorism.
o Increases the ability of the government to
collect information and increases executive
power.
▪ Intelligence activities or information gathering
symbolize the fears of critics.
▪ Supporters argue that a nation cannot fight
terrorism without intelligence gathering.
Civil Liberties and Federal Power
 Criminal justice and national security
agencies gathering information about
people and organizations are doing so
as an extension of the government’s
executive branch.
 The U.S. Constitution separates the
power of the three branches of
government.
o Legislative (law makers)
o Judicial (courts)
o Executive (enforcement)
Civil Liberties and Federal Power
 The U.S. Constitution’s most important
parts:
o The posse comitatus clause that forbids the
use of military power to enforce civilian law.
o Times of emergency clause allows certain
necessary actions that would be prohibited
if there is no state of emergency.
 Fourteen Amendment
o Ensures that suspects cannot lose their
rights except by due the process law.
USA Patriot Act – 2001
 Patriot Act
o Has ten sections outlining new powers for
government operations.
 Title I is designed to enhance domestic
security.
o Creates funding for counterterrorist
activities, expands technical support for the
FBI, expands electronic intelligence
gathering, and defines presidential authority
in response to terrorism.
USA Patriot Act – 2001
 Title II improves the government’s ability to gather
electronic evidence.
o Allows police officials expanded authority to monitor
communications.
o Allows intelligence and federal law enforcement agencies
to share noncriminal information with each other.
o Forces private corporations to share records and data
with federal law enforcement.
o Allows the FBI to seize material when it believes national
security is jeopardized.
 Title II contains a sunset close.
o Automatic ending of the provisions of the Patriot Act
unless renewed.
USA Patriot Act – 2001
 Title III
o Empowers federal law enforcement to interact with
banking regulators.
o Provides arrest power outside U.S. borders for
terrorist financing and money laundering.
 Title IV
o Increases border patrols and monitoring of
foreigners within the U.S.
 Title VII
o Focuses on police information sharing.
 specifically targeting a nationwide police investigative
network known as the Regional Information Sharing
System (RISS)
USA Patriot Act – 2001
 Supporters of the Patriot Act
o Patriot Act will increase federal law
enforcement’s ability to respond to
terrorism.
o Patriot Act will create an intelligence conduit
among local, state, and federal police
agencies.
 Opponents of the Patriot Act
o Patriot Act goes too far in threatening civil
liberties while expending police powers.
Debate and the 2006 Law
 The Patriot Act was scheduled for
renewal in 2005.
 U.S. Senate expressed some concern.
o 2001 law passed too quickly.
o Many of the provisions expanded
government authority too far.
o Reservations about making some of the
information gathering practices permanent.
 Reasons for reservations centered on
concerns about how the Patriot Act had
been used by the government.
Debate and the 2006 Law
 2006 Congress and the White House
reached a compromise
o A request for information can be challenged in
court.
o Suspects may seek counsel from an attorney.
o Added a provision requiring retailers to maintain
information in sales of over-the-counter drugs
that could be used to create methamphetamines.
o Government still has the right to intercept
communications.
o Time suspects can be kept under surveillance
was extended.
Debate and the 2006 Law
 Laws that were renewed:
o
o
o
o
o
The government has the right to intercept
communication.
Criminal intelligence can be given to agencies charged
with national security and the security community can
openly communicate with the law enforcement
community.
The government has the right to extend the time
suspects can be kept under surveillance and allows the
government to seize electronic.
The law requires internet and e-mail providers to hand
over records.
Federal law enforcement is allowed to collect national
security intelligence if that is their “significant purpose.”
Terrorism and the Constitution
 Constitutional Concerns
o Cole & Dempsey
 They fear federal law enforcement power is
growing too strong in a wave of national
hysteria.
 Antiterrorism legislation empowers law
enforcement agencies to enforce political
law.
 If terrorists are prosecuted under criminal
law, the Constitution will be preserved.
Terrorism and the Constitution
 Cases that illustrate Cole and
Dempsey’s thesis:
o Late 1960s to early 1970s through
COINTELPRO the FBI ran over the
rights of suspects and citizens.
o 1981 to 1990 the FBI overreacted against U.S.
citizens sympathetic toward revolutionaries in
El Salvador.
o In the1990s Muslims and Palestinians were
targeted without reasonable suspicion.
o In the 1990s political investigations expanded
against radical environmentalists and others.
Terrorism and the Constitution
 Cole & Dempsey
o Law enforcement should only gather intelligence
when there is reason to suspect criminal activity.
 The Cole & Dempsey thesis is endorsed by:
o
o
o
o
Jurists
Self-appointed civil rights organizations
Legal scholars
Die-hard conservatives that support many of the
Bush administration’s other efforts
Terrorism and the Constitution
 Cole & Dempsey’s two critical arguments:
o Bush and Cheney maintained that the president had
the power to designate certain terrorists as “enemy
combatants” and subject them to trial by special
military courts.
o Bush and Cheney also maintained that national
security agencies’ interception of telephone calls
originating in the U.S. directed to suspected terrorists
in foreign countries was permissible through
presidential authority.
 Issue about executive power form the crux
of the debate about civil rights and
security.
Increased Executive Powers
 Katz
o Actions taken to prevent another 9-11,
o when reasonable, do not violate the 4th
Amendment.
o There is no blanket policy of reasonable, and
care must be taken to balance security with civil
liberties.
▪ However, eavesdropping on attorney-client
conversations is a violation of the 6th
Amendment
 Konotorovich
o The U.S. must make all reasonable efforts to stop the
next attack.
o Tortures are out of the question but drugs are viable
alternative.
Increased Executive Powers
 Military tribunals that deny the presumption of
innocence.
 Colb
o The scope of September 11 calls assumptions about
profiling into question.
o Profiling will yield many more investigative inquiries
than apprehensions.
o One of the characteristics of terrorists in profiling is
race.
 Department of Justice - in the effort of catching
terrorists scrapped restrictions from the agents.
o Centralized approval is no longer needed; local FBI
offices empowered to launch inquires based on their
own information and initiative.
Increased Executive Powers
 New guidelines, executive orders, and military
tribunals have created strange twists in the criminal
justice system.
 Wedgwood
o Terrorists are detained because no writ, no law, nor
court order would stop them from attacking.
o Terrorists must be physically restrained to keep them
from returning to society.
o There is irony between Americans being detained
militarily and foreigners being held under civilian arrest.
o Going to trial means exposing intelligence sources for
the sake of a criminal conviction.
o Wedgwood suggests terrorists could be given a military
hearing to determine whether or not they continue to
represent a threat.
Limiting Executive Powers
 Herman
o Believes the Patriot Act to be a law throwing the
balance of powers out of kilter.
o Congress relinquished its power to the president.
o Congress also failed to provide any room for judicial
review.
o Patriot act concentrates too much power in the
executive branch.

By increasing executive powers, the constitution is threatened
 “War on terrorism” translates to a “war on the balance
of powers.”
o 1968 Crime Control and Safe Street Act
o 1978 Foreign Intelligence Surveillance Act (FISA)
The America Civil Liberties Union (ACLU)
 ACLU
o Charges the attorney general with trying to ‘gut’
immigration courts.
o States that after September 11 the attorney general
ordered to detain several hundred immigrants.
▪
Attorney General Ashcroft sought to have the rules for detaining
and deporting immigrants streamlined.
o States that tightening immigration laws is smoke
screen for increasing executive powers at the
expense of individual rights.
▪
Argument that attorney general will relay on the political issues
rather than the rules of evidence when deciding which cases to
prosecute.
Executive Power and the Courts
 The courts review of some of the issues
involved in counterterrorism.
o
o
o
Civilian and military courts have handed down decisions
blocking the government’s authority to establish special
military courts.
Supreme Court ruled that Guantanamo detainees could
contest the charges against them.
Supreme Court also ruled that military tribunal systems
established for enemy combatants was illegal.
 Courts have been increasingly limiting executive
power.
o
o
President acted without specific congressional authority.
Courts are demonstrating that any effort to fight terrorism
will be done so within the rule of law.
Civil Liberties and Police Work
 An internal audit of the FBI practices found it
violated its own rules or federal laws in
national security investigations over 1000
times since 2002.
o Information from e-mails and Internet providers
o Agents did not understand their authority in national
security investigations
 How police officers handle their responsibilities
has a direct relationship to whether civil
liberties are protected or abused.
Civil Liberties and Police Work
 Controversies in Law Enforcement
 The Patriot Act was designed to facilitate
intelligence gathering and to ensure intelligence
sharing.
o
o
o
o
o
o
The problems arise when the federal government
requests assistance from state and local government.
The police may be used in homeland security.
The criminal justice system collects criminal intelligence,
not information regarding homeland security.
Terrorism moves the police into a new intelligence realm.
To gather counterterrorist intelligence, the police are
forced to collect political information.
Any move to include police in an intelligence gathering
system alters the expectations local communities have
about law enforcement.
National Security and Crime
 Two general schools of thought about police role
in intelligence gathering.
 Proponents:
o “Eyes and ears” - state and local law enforcement
should be used as extension America’s intelligence
agencies
o Police should collect information and forward it to the
appropriate intelligence unit
 Opponents:
o Traditional crime response and prevention
o Involvement of local law enforcement in intelligence
gathering will interfere with the traditional police
mission of crime fighting
o Additional fears of expanded police powers
Intelligence, Networks, and Roles
 All levels of law enforcement form nodes in a network
opposed to terrorism.
o Networks encourage the flow of information.
o Agencies need to act in conjunction with each other.
o The civil liberties danger appears when agencies
inside a network either act illegally or forget their role.
 Law enforcement’s primary role in preventing
terrorism is information gathering and sharing.
o Sharing information neither poses a threat to civil
liberties nor reduces the effectiveness of partnership.
o Shared information enhances crime prevention and
decreases fear inside a community.
Intelligence, Networks, and Roles
 Jenkins, Cilluffo, Marayati
o Present terrorism as a social idea without militarizing
the problem.
o They equate terrorism to child abuse, illegal drug
use, gangs, drunk driving and family fights.
▪
Law enforcement became involved in education,
intervention, information gathering, and enforcement in
each of these areas, and they played their role without
violating civil rights.
o Terrorism represents a tactical change in conflict.
o Deeper community relationships will enhance law
enforcement’s role in national security by preventing
crime, reducing fear, solving problems, and
increasing the flow of information.
Militarization and Police Work
 Law Enforcement
o There are roles for law enforcement in homeland
security, but there are questions about the
necessity of developing these functions along
military lines.
 Militarization
o Refers to a process in which individual police units
or entire agencies approach specific problems with
military values and attitudes.
o Military forces are necessary for national defense
and they are organized along principles of rigid role
structures, hierarchies, and discipline.
Militarization and Police Work
 The IACP, America’s largest association of state
and local police executives, has traditionally
favored the civil role of policing over a militaristic
approach.
 Florida’s Metro-Dade Police Department
o Field Force technique – response to a growing
disorderly crowd
▪
▪
▪
▪
▪
Massive show of organized police force
Officers assemble in an area away from the violent
gathering
Isolate the area
Provide a route for the crowd to disperse
Overwhelm the crowd with military riot tactics
Militarization and Police Work
 Police tactical units
o Deal with barricaded gunmen, hostage situations, and
some forms of terrorism
o Use military weapons, small-unit tactics, and
recognized military small unit command structures
 Kraska – law enforcement in the U.S. has
gradually assumed a more military posture since
violent standoff with domestic extremists.
o Fears terrorism will lead to a further excuse to
militarize
 Most terrorism analysts believe terrorism is best
left to police whenever possible.