Term Paper: Patriot Act and Constitutional Freedom

Pages: 10 (3077 words)  ·  Bibliography Sources: 1+  ·  Level: College Senior  ·  Topic: American History  ·  Buy This Paper


[. . .] Ultimately, the responsibility of a free people who wish to remain free is to create the security they seek, by remaining vigilant, engaged, and committed to the well-being of the nation. When this commitment emanates only from the federal government, the nation and the people trade their freedom for the comfort of being controlled.

Organizing the Opposition, and Creating a Measured Response

The first and thus far the most significant domestic opposition to government policy in the war on terror has come from those who identify themselves as civil libertarians. The American Civil Liberties Union and other civil liberties interest groups have mounted widely publicized challenges to a number of measures enacted in the wake of September 11, including the Act. The National Lawyer's Guild and the Lawyers Committee for Human Rights, representing lawyers from across the nation, have also launched protest efforts. Three hundred law professors signed a widely noticed petition opposing the administration's proposed use of military tribunals for the prosecution of those involved in the terrorist attacks. Locally, more than 40 major cities, smaller towns, and individual counties across the nation have passed resolutions calling for grass roots level resistance to, and the eventual repeal of, the Act. (Power, 2003)

Because we live in the wake of a period in which the freedom of speech, civil rights, and due process protections have been undergoing significant redefinition from activist court activity, any claim that our civil liberties are being curtailed or violated is extremely troubling to this generation of Americans. However, these arguments in response to the concerns of civil libertarians are also powerful, and need to be considered in light of continued terrorist intentions to do our nation harm at any level. It is the federal government's duty in a time of uncertainty and extreme danger, such as the United States now faces, to conduct a thorough investigation of the harms done. The federal government's responsibility is to minimize potential future threats. In light of the accusation which crossed from one branch to the other of those agencies responsible for protecting our nation after September 11, what would be the public outcry if these agencies did not ramp up their efforts and abilities, and then another terrorist event occurred on American soil. A very real possibility exists that a terrorist could bring into the country, and detonates a nuclear bomb in an American city. Under such circumstances, anything but the most vigorous foreign and domestic national security policy would be inexcusable, and an unjustifiable dereliction of duty.

According to Powers, (2003) "Every war brings with it, according to its particular circumstances, its own distinctive set of civil liberties challenges." This present conflict is no different, and has posed five main areas of controversy which should be considered in the debate over the conflict between protection and freedom.

Due process issues: can the government bypass legal due process procedures and case law in order to pursue terrorist suspects. The key question is can the Government be trusted to only pursue those suspects of legitimate concern.

Extraordinary detention: can the government intern Americans because they are suspects in larger terrorist activities, those who may be "under the influence of a foreign power"

The civil rights of noncitizens: what rights are to be extended to those who are in the country under our graces, and as our guests if they are suspected of terrorist activity.

Government secrecy: the need exists for some government activity to remain secretive in order to maintain the integrity of the intelligence community.

The treatment of terrorist captives outside the United States: how will the county treat those who it captures who are neither citizens, nor residents of the U.S. Should these people be given the same rights, and legal protections which are afforded those who have made their commitment to the well being or our nation. (Adapted from Powers, 2003)

The first and greatest source of concern among most citizens arises from the expansion of police powers that ultimately make it possible for government agencies to conduct surveillance, use wiretaps and searches, obtain access to personal records, and track and question designated groups. As a result, these groups attempt to frame the debate as a distinctive intrusion into the private lives of the individual citizens, and the relationship to due process.

According to Henderson (2002) the Act also modified the process for securing rights to surveillance activity in 5 specific ways.

When Trying to Obtain an Intercept Order, It May Now Be Easier for government agents to use FISA and FISA judges to Circumvent Title III, which applies to searching a persons private records that are maintained by third parties.

Prior to the Act, roving wiretaps were only available in the law enforcement context, and, to obtain one, the government had to show that the target was actually using the line to be tapped. However, FISA Courts Can Now Authorize Roving Surveillance, which the government can use at will.

The Standard under Which FISA Pen/Trap Orders Can Be Obtained Is Now Lower, and the government can obtain a FISA order authorizing the use of a pen/trap device by certifying that the information sought is relevant to an ongoing intelligence or terrorism investigation. No proof of a crime or criminal activity is required prior to securing this type of surveillance authorization. (The Pen/Trap devices are two specific devices. Pen registers are devices that capture the phone numbers dialed on outgoing telephone calls from an individual phone line. Trap and trace devices capture the numbers which identify incoming calls.) (Dempsey, 2003)

Pen/Trap Orders Now Apply to Both Wire and wireless, and internet Electronic Communications. Prior to the enactment of the Patriot Act, there was an ongoing debate as to whether the pen/trap statutes applied only to wire communications or to all forms of electronic communication, such as traditional wired, wireless, and internet-based electronic communications.

Where previously, a pen/trap order was only valid in the district where it was obtained, under the Act, All Pen/Trap Orders Are Now Valid throughout the United States.

Internment of Japanese during WWII.

During our engagement in the pacific during WWII, the surprise and severity of the attack on Pearl Harbor created a knee jerk ripple response throughout the west coast. The West coast has the highest concentration of naval ship yards, and the highest concentration of Japanese-Americans. If the Japanese were capable of attacking our fleet in Hawaii without warning, the fear spread on the mainland that unknown plans could be forming to similarly strike our military assets there. This lead to the internment of Japanese-Americans. The order came 2 months after the attack on Pearl Harbor, and the last camp was closed in March, 1946. (University of Utah, online)

Section 412 of the Act is questionably deficient by not providing constitutionally adequate procedures, the substantive due process claim derives from the wrongfulness of the detention which may arise from the increased detention and deportation powers granted to the government. The U.S.A. Patriot Act: Section 412 is accused of violating substantive due process by authorizing neither government detention of some aliens who pose neither a danger to the community nor a risk of flight. Prior to the act, it is constitutional to detain an alien charged with a deportable offense if the individual endangers society or appears likely to flee. However, under the act, like the Japanese detention camps, the detention of an alien who meets neither of these criteria is permitted, thus the argument centers around how this could violate the individual's substantive rights. This argument, therefore, rests not on the absence of an individualized hearing to determine whether an alien should be detained, but on the fact that section 412 authorizes certification and detention of aliens who meet neither justification for detention. (Sinnar, 2003)


The Patriot Act of 2001 undoubtedly faces numerous legal challenges in the upcoming months and years. While the issue of protecting our nation cannot be forgotten in the aftermath of 9-11, neither can be the lessons learned from the Alien and Sedition acts, nor the tragic mistake of interning thousands of Japanese-Americans under no more than suspicion and bigotry. The challenge of defending a nation from outside aggressors is simple when compared to the problem of defending our nation from those who would attack it from within.


The Alien and Sedtion acts. (2001) Folwells Laws of the U.S. Early America.com Accessed 1 Jan 2004. Available from http://earlyamerica.com/earlyamerica/milestones/sedition/.

Dempsey, Jim. (2003, Jan 3) Cyber Security. Center for Democracy and Security. Accessed 1 Jan 2004. Available at http://www.cdt.org/security/000404amending.shtml

Henderson, N. (2002) The Patriot Act's impact on the government's ability to conduct electronic surveillance of ongoing domestic communications. Duke Law Journal, Vol. 52.

Japanese-Americans Internment Camps During World War II. Special Collections Department, J. Willard Marriott Library, University of Utah. Accessed 1 Jan 2003. Available from http://www.lib.utah.edu/spc/photo/9066/9066.htm

Jefferson. Thomas. (2003) The Quote DB. Accessed 1 Jan 2004 Available from http://www.quotedb.com/quotes/2283… [END OF PREVIEW]

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