Essay: Homeland Security Questioning the Legality

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[. . .] "[footnoteRef:3] The act also requires the following points on financial matters: [3: USA Patriot Act. (2011). Financial Crimes Enforcement Network: U.S. Department of Treasury. Retrieved October 20, 2011, from < http://www.fincen.gov/statutes_regs/patriot/index.html >.]

Strengthening the U.S.(through policy-making, governmental or legal bodies), to "prevent, detect and prosecute" money laundering and objectives to finance terrorism.

Subjecting foreign jurisdictions, financial institutions, and international transactions to scrutiny, especially those that are linked to criminal activity or criminal abuse.

Strengthening measures to prevent domestic financial systems from benefitting from corruption.[footnoteRef:4] [4: USA Patriot Act. (2011). Financial Crimes Enforcement Network: U.S. Department of Treasury. Retrieved October 20, 2011, from < http://www.fincen.gov/statutes_regs/patriot/index.html >. ]

The Patriot Act's legality rests upon provisions from the U.S. Congress

and provisions within the U.S. Code. Titles within court orders are also referenced, such as in the case below, relating to surveillance:

"Title III court orders come replete with instructions describing the permissible duration and scope of the surveillance as well as the conversations which may be seized and the efforts to be taken to minimize the seizure of innocent conversations, 18 U.S.C. 2518. The court notifies the parties to any conversations seized under the order after the order expires, 18 U.S.C. 2518(8)."[footnoteRef:5] [5: Doyle, C. (2002). The U.S.A. PATRIOT Act: A Legal Analysis. CRS Report for Congress. Retrieved October 20, 2011, from < http://www.fas.org/irp/crs/RL31377.pdf>.]

From this very quote, it is clear that although the Patriot Act has a clear legal basis, it involves provisions that are highly contested because they seem to contradict those freedoms ensured by the Bill of Rights (i.e. right to privacy, freedoms from unnecessary searches, seizures, and surveillance, etc.). Thus, there is a clear legal issue to be addressed here, and this is why the Patriot Act has been so highly debated.

As mentioned above, this debate focused on various points including those illustrated in the table below[footnoteRef:6]: [6: Table is original but references come from: ACLU Website. (2011). USA Patriot Act. Retrieved from < http://www.aclu.org/national-security/usa-patriot-act>. DHS Website (2011). USA Patriot Act Fact Sheet. Retrieved from < http://www.dhs.gov/xnews/releases/press_release_0815.shtm>.]

PROS

CONS

Breaking down information is facilitated through breaking down barriers to share information to better protect the country.

This provision is contrary to the requirement set out in the constitution that mandates government to show reasonable suspicion/probable cause for searches and seizures.

Investigations of funds transfers that may be illegal or contribute to terrorist activities is enhanced.

This provision is contrary to the requirement set out in the constitution that mandates government to show reasonable suspicion/probable cause for searches and seizures.

Monitoring and prosecution of individuals that either enable or carry out terrorist activities is enhanced.

This authorization, "granted only in secret courts" is, according to the ACLU (2011), "subject to abuse and threatens our longtime understandings of the limits of the government's investigatory powers within the borders of the United States."

These hotly debated points are very important because they challenge the very foundations upon which the Patriot Act is built. In order to see whether it is legal, and to take a stance on whether to support the validity of this act, one must thus look at the various decisions undertaken by the Supreme Court on the matter.

When looking at one of the most recent decisions taken by the court one thus sees that, in fact, it upholds most of the controversial parts in the patriot act, for example, the fact that "in a 6-to-3 decision, the high court said the law [that makes it illegal to teach members of a foreign terrorist group how to use peaceful means to pursue political goals] -- part of the U.S.A. Patriot Act -- is specific enough to provide would-be violators fair notice of when their conduct crosses the line into illegality."[footnoteRef:7] With the Supreme Court's stamp of approval on this issue, as well as various other provisions of the Patriot Act, including the stamps of Congress and the Executive Office, it is, thus, despite liberal thoughts, hard to argue against the protection of our country through whatever means necessary. [7: Richey, W. (2010). Supreme Court upholds controversial part of Patriot Act. Christian Science Monitor, Retrieved October 20, 2011, from < http://www.csmonitor.com/USA/Justice/2010/0621/Supreme-Court-upholds-controversial-part-of-Patriot-Act>.] [END OF PREVIEW]

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