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Chapter Sixteen:
Protecting the Homeland and
Protecting Civil Liberties
Defense in Depth: Why
Civil Liberties Interact with
Civil Defense
Defense in Depth: Why Civil
Liberties Interact with Civil Defense

The target of terrorism
 The target of terrorism is social order
 Combating terrorism involves the
preservation and protection of social
order
 Terrorism targets civil society and
civilian targets
 To defend against terrorism, a nation
must use civil defense
 All levels of society must become
involved in homeland security
Defense in Depth: Why Civil
Liberties Interact with Civil Defense

Issues surrounding homeland defense
 There is the assumption that the
community wants to fight for its
existence
 There is an implication that all
members of the community are
committed to preserving a similar goal
 Members of a group are asked to be
sufficiently ruthless with enemies and
to have the political will for rigid selfexamination
Defense in Depth: Why Civil
Liberties Interact with Civil Defense

Ideal freedom versus state power
 To engage in a struggle against
terrorism, Americans must examine
themselves and honestly select a
course of action they will accept
 Americans will be better prepared to
secure the homeland if they have
engaged in a nationwide discussion of
defense in depth and its impact on civil
liberties before an attack
The USA Patriot Act
The USA Patriot Act


Title I
 Designed to enhance domestic security
Title II
 Designed to improve the government’s
ability to gather electronic evidence
 Contains a sunset clause ending the
provisions of the Patriot Act unless it is
renewed, and demands congressional
oversight
The USA Patriot Act


Title III
 Empowers federal law enforcement to
interact with banking regulators and
provides arrest power outside the U.S.
borders for terrorist financing and
money laundering
Title IV
 Increases border patrols and
monitoring of foreigners with in the
United States, while mandating
detention of suspected terrorists
The USA Patriot Act


Title VII
 Focuses on police information sharing,
specifically targeting a nationwide police
investigative network known as the Regional
Information Sharing System
Support of the Patriot Act
 Supporters believe the Patriot Act will increase
federal law enforcement’s ability to respond to
terrorism and will create an intelligence
conduit among local, state, and federal police
agencies
The USA Patriot Act

Opponents of the Patriot Act
 Opponents believe that the Patriot Act
goes too far in threatening civil liberties
while expanding police powers
Title II and the Debate
about Intelligence
Gathering
Title II and the Debate about
Intelligence Gathering

Civil liberties
 Citizens are free from having their
government infringe unreasonably on
the freedoms guaranteed in the
Constitution and the Bill of Rights
 Increasing the ability of the
government to collect information
increases executive power
Title II and the Debate about
Intelligence Gathering

Separation of powers
 The U.S. Constitution separates the
powers of the three branches of
government: executive, legislative, and
judicial. This is known as the separation
of powers, and these powers are also
separated in the criminal justice system
Title II and the Debate about
Intelligence Gathering

The Fourteenth Amendment
 The Fourteenth Amendment ensures
that suspects cannot lose their rights
except by the due process of law
 The interpretations of the Constitution
and its amendments have protected
American liberties for more than two
centuries
Title II and the Debate about
Intelligence Gathering

Disagreements about the nature of terrorism
 Many people disagree about the nature of
terrorism. Many legal scholars argue that
terrorism is not a continuing emergency
 Criminal justice agencies do not take actions
for war; they protect individual rights, and
local, state, and federal courts are not
charged with national defense
 Controversy arises when criminal systems and
the defense establishment begin to blend
activities
Title II and the Debate about
Intelligence Gathering


Patrick Leahy (D-Vermont)
 According to Senator Leahy, President
Bush’s antiterrorist proposals
threatened the system of checks and
balances, giving the executive branch
of government too much power
Attorney General John Ashcroft
 Ashcroft argues that the proposed
guidelines were solely for the purpose
of protecting the country from terrorists
Title II and the Debate about
Intelligence Gathering

Nancy Chang
 Chang criticizes the Patriot Act on the
basis of democracy
 By allowing the government to blur the
distinction between defense intelligence
and criminal evidence, the Patriot Act
tramples on reasonable expectations of
privacy
Title II and the Debate about
Intelligence Gathering

The Patriot Act not an attack on individual
rights
 Senator Dianne Feinstein (D-California)
believes we cannot rush to judgment.
Time will show how the act is used in
the real world
 Senator Charles Schuman (D-New York)
believes the law is balanced. It limits
personal freedom while reasonably
enhancing security
The Case for Increasing
Executive Powers in the
Face of Terrorism
The Case for Increasing Executive
Powers in the Face of Terrorism

Lewis Katz

Katz says the real test of the Fourth
Amendment is reasonableness

A system would not be unconstitutional,
provided citizens were not ordered to
produce identification without reasonable
suspicion

Some government actions are unreasonable

Eavesdropping on attorney-client
conversations

Military tribunals
The Case for Increasing Executive
Powers in the Face of Terrorism

Sherry Colb

Colb applies a doctrine of reasonableness

Colb believes any profiling system, including
one having race as a factor, will yield many
more investigative inquiries than
apprehensions

There is only a small number of terrorists in
any group, regardless of their profile

If a terrorist profile develops and it includes
race as one of the characteristics, Colb
suggests that some opponents of racial
profiling may find they endorse it in the case
of counterterrorism
The Case for Increasing Executive
Powers in the Face of Terrorism

Twists in the criminal justice system

Two foreign-born terrorists were arrested,
and at the same time, two U.S. citizens,
Yasser Esam Hawdi and Jose Padilla were
held by military force without representation

Hawdi and Padilla, both of whom would have
been criminally charged before September
11, were detained much like prisoners of war,
while two alleged terrorists arrested on U.S.
soil were afforded the rights of criminal
suspects. Hawdi was released in September
2004
The Case for Increasing Executive
Powers in the Face of Terrorism

Ruth Wedgewood

Al Qaeda has learned it is best to recruit U.S. citizens
for operations because citizens are not subject to
arbitrary arrest

Common sense dictates that the detention of terrorists
does not follow the pattern of criminal arrests

The purpose of detention, she argues, is not to engage
in excessive punishment, but to keep terrorists from
returning to society

Wedgwood argues that indefinite detention by
executive order is not the most suitable alternative

Common sense demands a reasonable solution to the
apparent dichotomy between freedom and security
The Case for Increasing Executive
Powers in the Face of Terrorism

E.V. Konotorovich
 According to Konotorovich, the stakes
are so high that the United States must
make all reasonable efforts to stop the
next attack
The Case against Increasing
Executive Powers in the
Face of Terrorism
The Case against Increasing Executive
Powers in the Face of Terrorism

Susan Herman
 Herman asserts that Congress has
relinquished its power to the president,
and Congress also failed to provide any
room for judicial review
The Case against Increasing Executive
Powers in the Face of Terrorism

The 1968 Crime Control and Safe Streets Act
 Title III of the Safe Streets Act mandates
judicial review of police surveillance
 Under Title III, criminal evidence cannot be
gathered without prior approval from a federal
court, and while a judge reviews a request for
surveillance in secrecy, the police must prove
that wiretaps or other means of electronic
eavesdropping will lead to probable cause
The Case against Increasing Executive
Powers in the Face of Terrorism

The 1978 Foreign Intelligence Surveillance
Act
 Under FISA, various forms of
eavesdropping can be used to gather
intelligence
 Any evidence gathered during the
investigation cannot be used in a
criminal prosecution
The Case against Increasing Executive
Powers in the Face of Terrorism

FISA and surveillance proposed under the Patriot Act

The Patriot Act allows the government to watch its own
citizens with similar rules as the FISA

There is no guarantee that such surveillance will
exclude evidence used in criminal prosecutions

The Patriot Act concentrates too much power in the
executive branch

The Patriot Act also gives the attorney general and the
secretary of state the power to designate certain
associations as terrorist groups, and they may take
actions against people and organizations associated
with these groups
The Case against Increasing Executive
Powers in the Face of Terrorism

The American Civil Liberties Union
 The ACLU expresses two concerns
 After September 11, the attorney general
ordered the detention of several hundred
immigrants. He refused to openly charge
most of the detainees and refused to make
the list known for several months
 Attorney General Ashcroft sought to have
the rules for detaining and deporting
immigrants streamlined. He wanted to
make the process more efficient by
decreasing the amount of judicial review
involved in immigration and naturalization
cases
The Case against Increasing Executive
Powers in the Face of Terrorism

Ali Maqtari
 Maqtari was stopped by police for questioning,
and he was detained without probable cause
to believe he had committed a crime. He was
held for eight weeks without formal charges
 After Maqtari was granted a hearing, a court
ruled that the government’s position was
unjustified and he was released. Without
effective judicial review, the ACLU says,
Maqtari may not have been released
The Debate Concerning
Intelligence Gathering
The Debate Concerning
Intelligence Gathering

The dilemma when terrorism moves the police
into a new intelligence realm
 The criminal justice system collects criminal
intelligence, not information regarding
national security
 To gather counterterrorist intelligence, the
police are forced to collect political information
 The police are not designed to collect political
information
 Although not a formal role, the preoccupation
with responding to and preventing crime has
become the de facto purpose of American law
enforcement
The Debate Concerning
Intelligence Gathering

The problems posed by both domestic
and international terrorism
 On the one hand, state and local law
enforcement agencies are in a unique
position to collect and analyze
information from their communities
 On the other hand, when the criminal
justice system has participated in
national defense in the past, abuses
have occurred
Militarization and Police
Work
Militarization and Police Work

Militarization
 Military forces are necessary for national
defense, and they are organized along
principles of rigid role structures, hierarchies,
and discipline. A military posture prescribes
unquestioning obedience to orders and
aggressive action in the face of an enemy
 Any bureaucracy can be militarized when it
adopts military postures and attitudes, and
the police are no exception
 Militarization refers to a process in which
individual police units or entire agencies begin
to approach specific problems with military
values and attitudes
Militarization and Police Work

Terrorism and the change in attitudes
 Since many forms of terrorism require
resources beyond the capacity of local police
agencies, law enforcement has been forced to
turn to the military for assistance
 State and local law enforcement agencies
have few international resources compared
with the defense and intelligence communities
 Terrorism demands a team approach
Militarization and Police Work

Field Force
 Field force is a technique for
responding to urban riots
 The concept is based on responding to
a growing disorderly crowd, a crowd
that can become a precursor to a riot,
with a massive show of organized
police force
Militarization and Police Work

Police tactical units
 These special operations units are
called out to deal with barricaded
gunmen, hostage situations, and some
forms of terrorism
 Tactical units use military weapons,
small-unit tactics, and recognized
military small-unit command structures
Militarization and Police Work

Peter Kraska
 Kraska argues that police in America
have gradually assumed a more military
posture since violent standoffs with
domestic extremists, and he fears
terrorism will lead to a further excuse
to militarize
Militarization and Police Work

View of terrorist analysts
 Most terrorist analysts believe terrorism
is best left to the police whenever
possible
 The difficulty is that the growing
devastation of single events sometimes
takes the problem beyond local police
control
 Military forces are often targeted, and
they must develop forces to protect
themselves