Terrorism and Security

The First and Fourth Amendments and Issues of Terrorism and Security

Issues on privacy created new grounds for citizens to battle the constitutionality of security policies enacted after September 11th.

Learning Objectives

Describe the safeguards afforded by the Fourth Amendment

Key Takeaways

Key Points

  • The Fourth Amendment states that a warrant must be judicially sanctioned for a search or an arrest. It must be supported by probable cause and be limited in scope according to specific information supplied by a person who has sworn by it.
  • The protection of private conversations has been held to apply only to conversations where the participants have a reasonable expectation it is indeed private and no other party is listening in. In the absence of such expectation, the Fourth Amendment does not apply.
  • The Supreme Court stated that the First Amendment precludes liability for a media defendant for publication of illegally obtained communications if the topic involves a public controversy and the media defendant itself did nothing illegal to obtain the information.

Key Terms

  • provision: A clause in a legal instrument, a law, etc., providing for a particular matter and/or stipulation.
  • wiretap: A concealed device connected to a telephone or other communications system that allows a third party to listen or record conversations.
  • whistleblower: A person who reveals classified information about an institution operating in either the private or public sector.

Background

Since September 11, 2001, a number of high-profile incidents and security scares have occurred in Washington, D.C. In October 2001, anthrax-contaminated mail sent to members of Congress infected 31 staff members and killed two U.S. Postal Service employees. Issues in disclosing information and the surveillance of the population has created new grounds for citizens to battle the constitutionality of security policies enacted after September 11.

The Fourth Amendment and Issues on Privacy

The Fourth Amendment has been held to mean that a warrant must be judicially sanctioned for a search or an arrest. In order for such a warrant to be considered reasonable, it must be supported by probable cause. It also must be limited in scope according to specific information supplied by a person (usually a law enforcement officer) who has sworn by it and is therefore accountable to the issuing court. The Fourth Amendment applies to governmental searches and seizures. It does not apply to searches and seizures done by private citizens or organizations not acting on behalf of a government. The Bill of Rights originally only restricted the federal government in these matters. However, in Mapp v. Ohio, 1961, the Supreme Court ruled that the Fourth Amendment applies to states by way of the Due Process Clause of the Fourteenth Amendment. Moreover, all state constitutions contain a similar provision.

The protection of private conversations has been held to apply only to conversations where the participants have manifested a reasonable expectation that no other party is listening in on their conversation.The Fourth Amendment does not apply in the absence of such a reasonable expectation, and surveillance without warrant does not violate it. Privacy is clearly not a reasonable expectation in the many countries where governments openly intercept electronic communications, and is of dubious reasonability in countries against which the United States is waging war.

The law also recognizes a distinction between domestic surveillance taking place within U.S. borders and foreign surveillance of non-U.S. persons either in the U.S. or abroad. In United States v. Verdugo-Urquidez, the Supreme Court reaffirmed the principle that the Constitution does not extend protection to non-U.S. persons located outside of the United States. This means no warrant would be required to engage in even physical searches of non-U.S. citizens abroad.

All wiretapping of American citizens by the National Security Agency requires a warrant from a three-judge court set up under the Foreign Intelligence Surveillance Act. After the 9/11 attacks, Congress passed the Patriot Act, which granted the President broad powers to fight a war against terrorism. The George W. Bush administration used these powers to bypass the FISA (Foreign Intelligence Surveillance Act) and directed the NSA to spy directly on al Qaeda in a new NSA electronic surveillance program. Reports at the time indicate that an “apparently accidental glitch” resulted in the interception of communications that were purely domestic in nature. This action was challenged by a number of groups, including Congress, as unconstitutional.

image

National Security Agency: The seal of the U.S. National Security Agency. The first use was in September 1966, replacing an older seal which was used briefly.

Publication of Unclassified Information

Publicizing information as part of the First Amendment has produced legal and security repercussions between the citizens and the government. The Intelligence Community Whistleblower Protection Act of 1998 is a statutory procedure for a “whistleblower” in the intelligence community to report concerns with the propriety of a secret program. Essentially, the Act provides for disclosure to the agency Inspector General, with an appeal to the Congressional Intelligence Committees if the result of that disclosure is unsatisfactory. Former NSA official Russ Tice has asked to testify under the terms of the Act to provide information about highly classified Special Access Programs (SAPs) that were improperly carried out by both the NSA and the Defense Intelligence Agency.

It is unlikely that the New York Times could be held liable for publishing its article under established Supreme Court precedent. In Bartnicki v. Vopper, 532, the Supreme Court held that the First Amendment precluded liability for publication of illegally obtained communications if the topic involves a public controversy and the information was not obtained by a media defendant illegally. The high court in Bartnicki gave the radio station in question a pass because it did nothing itself illegal to obtain the information, even though the initial broadcast of the information was illegal.

The Right to Due Process

Due process rights provides legal protections while a citizen is charged by the courts and other legal procedures.

Learning Objectives

Summarize the protections afforded by the Due Process Clauses of the 5th and 14th Amendments

Key Takeaways

Key Points

  • Due process rights extends to all government proceedings that can result in an individual’s deprivation, whether civil or criminal in nature, from parole violation hearings to administrative hearings regarding government benefits and entitlements to full-blown criminal trials.
  • Procedural due process has also been an important factor in the development of the law of personal jurisdiction, in the sense that it is inherently unfair for the judicial machinery of a state to take away the property of a person who has no connection to it.
  • The term substantive due process (SDP) is commonly used in two ways: first to identify a particular line of case law, and second to signify a particular attitude toward judicial review under the Due Process Clause.

Key Terms

  • Judicial Review: Judicial review refers to the power of a court to review the constitutionality of a statute or treaty or to review an administrative regulation for consistency with a statute, a treaty, or the Constitution itself.

Background

The Fifth and Fourteenth Amendments to the United States Constitution each contain a Due Process Clause. The Supreme Court of the United States interprets these two clauses as providing four protections: procedural due process in civil and criminal proceedings, substantive due process, a prohibition against vague laws, and as the vehicle for the incorporation of the Bill of Rights.

image

Bill of Rights: This item is the enrolled original joint resolution of Congress, engrossed on parchment, proposing 12 amendments to the United States Constitution. The Federal Government’s official copy of the resolution is signed by Frederick Augustus Muhlenberg, Speaker of the House of Representatives, and John Adams, Vice President of the United States and President of the Senate.

This protection extends to all government proceedings that can result in an individual’s deprivation, whether civil or criminal in nature, from parole violation hearings to administrative hearings regarding government benefits and entitlements to full-blown criminal trials.

Procedural Due Process

At a basic level, procedural due process is essentially based on the concept of fundamental fairness. For example, in 1934, the United States Supreme Court held that due process is violated “if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. ” As construed by the courts, it includes an individual’s right to be adequately notified of charges or proceedings, the opportunity to be heard at these proceedings, and that the person or panel making the final decision over the proceedings be impartial in regards to the matter before them. To put it more simply, where an individual is facing a deprivation of life, liberty, or property, procedural due process mandates that he or she be entitled to adequate notice, a hearing, and a neutral judge.

Procedural due process has also been an important factor in the development of the law of personal jurisdiction, in the sense that it is inherently unfair for the judicial machinery of a state to take away the property of a person who has no connection to it whatsoever.

The requirement of a neutral judge has introduced a constitutional dimension into the question of whether a judge should recuse himself or herself from a case. Specifically, the Supreme Court has ruled that in certain circumstances, the Due Process Clause of the Fourteenth Amendment requires a judge to recuse himself on account of a potential or actual conflict of interest. For example, on June 8, 2009, in Caperton v. A. T. Massey Coal Co. (2009), the Court ruled that a justice of the Supreme Court of Appeals of West Virginia could not participate in a case involving a major donor to his election to that court.

In criminal cases, many of these due process protections overlap with procedural protections provided by the Eighth Amendment to the United States Constitution, which guarantees reliable procedures that protect innocent people from being executed, which would be an obvious example of cruel and unusual punishment.

Substantive Due Process

The term substantive due process (SDP) is commonly used in two ways: first to identify a particular line of case law, and second to signify a particular attitude toward judicial review under the Due Process Clause. The term substantive due process began to take form in 1930s legal casebooks as a categorical distinction of selected due process cases, and by 1950 had been mentioned twice in Supreme Court opinions.

Today, the Court focuses on three types of rights under substantive due process in the Fourteenth Amendment, which originated in United States v. Carolene, 1938. Those three types of rights are: the first eight amendments in the Bill of Rights (e.g. the Eighth Amendment); restrictions on the political process (e.g. the rights of voting, association, and free speech); and the rights of “discrete and insular minorities.”

Roving Wiretaps

A roving wiretap is a wiretap specific to the United States that follows the surveillance target across his or her private communications.

Learning Objectives

Discuss the claims made on behalf of increases in government surveillance and the worries voiced by critics

Key Takeaways

Key Points

  • A roving wiretap follows the target and defeats the target’s attempts at breaking the surveillance by changing location or communications technology.
  • In 2007 a United States Foreign Intelligence Surveillance court ruling required that the NSA obtain a warrant when intercepting or eavesdropping on foreign-to-foreign intelligence if it passes through any U.S. networks.
  • The ACLU said the language of the bill is a blank check that would cover not only the warrantless wiretapping program that the Bush administration has acknowledged, but any unconfirmed or previously unknown program.

Key Terms

  • wiretap: A concealed device connected to a telephone or other communications system that allows a third party to listen or record conversations.

Background

A roving wiretap is a wiretap specific to the United States that follows the surveillance target. For instance, if a target attempts to defeat surveillance by throwing away a phone and acquiring a new one, another surveillance order would usually need to be applied for. However, a roving wiretap defeats the target’s attempts at breaking the surveillance by changing location or their communications technology. It is allowed under amendments made to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the Wiretap Statute) in 1988 by the Electronic Communications Privacy Act and was later expanded by section 604 of the Intelligence Authorization Act for Fiscal Year 1999. On May 26, 2011, the U.S. Senate voted to extend the provisions of the 2001 USA PATRIOT Act to search business records and allow for roving wiretaps.

image

This Phone Is Tapped: The US Patriot Act of 2001, Section 216, permits all phone calls to be recorded without a warrant or notification.

NSA warrantless surveillance controversy

In 2007 a United States Foreign Intelligence Surveillance court ruling required that the NSA obtain a warrant when intercepting or eavesdropping on foreign-to-foreign intelligence if it passes through any U.S. networks. In response, the Bush administration passed stopgap legislation very quickly through Congress that temporarily relieved the NSA of this prior ruling. Director of National Intelligence Mike McConnell remarked to Congress that the new ruling could potentially decrease the amount of useful information they collected on groups like al-Qaeda by almost two thirds. He also stated that since applying for a warrant can run up to 90 pages, the process is exceedingly time consuming and labor intensive.

The American Civil Liberties Union (ACLU) brought many legal cases challenging the constitutionality of the bill, asserting that it violates Americans’ right to free speech and privacy. They have filed lawsuits, motions, and complaints in over 27 states to oppose any legislation that encourages unchecked government surveillance. In response to the government arguments, Caroline Fredrickson, Director of the ACLU Washington Legislative Office has said of the bill: “Where will Congress go from here? More unfettered power for an administration that has no respect for the privacy of the citizenry that elected it? ”

The stopgap expired in February 2008. By then, Congress and FISA reached a compromise on the details of the bill. ACLU advocates pushed to require that the NSA provide individual warrants when Americans were involved. On the other hand, U.S. intelligence agencies and the administration wanted as few obstacles in their way of intercepting private information. Both sides have shown the possibility of accepting a bill that would require a FISA court to approve NSA’s procedures while intercepting foreign intelligence when it comes to Americans.

However, a later addition to this bill, that was insisted on by then President Bush and Mike McConnell, granted retroactive immunity to telecommunications companies for any “intelligence activity involving communications that was designed to detect or prevent a terrorist attack” or attack preparations. The Bush administration has acknowledged that intelligence agencies conducted warrantless eavesdropping on Americans with the help of Telecom companies such as Verizon, AT&T, and Qwest. All three of these Telecom companies faced multiple civil lawsuits related to their handling of phone records and the passing of this bill granted them immunity.

In favor of the bill, McConnell has stated that such immunity was necessary to prevent the telecoms from being bankrupted and to encourage them to continue to cooperate with intelligence agencies. Bush said that he would veto any intelligence bill passed that did not include such immunity. Liz Rose, spokeswoman for the Washington office of the ACLU, said the language of the bill is a blank check that would cover not only the warrantless wiretapping program that the Bush administration has acknowledged, but any unconfirmed or previously unknown program. Senator Russ Feingold from the District of Washington promised to lead a filibuster to block approval of retroactive immunity. Retroactive immunity set the terrible precedent that breaking the law is permissible and companies need not worry about the privacy of their customers, Feingold said.

Legal issues

image

United States Constitution: “We the People”, as it appears in an original copy of the Constitution.

The NSA surveillance controversy involves legal issues that fall into two broad disciplines: statutory interpretation and Constitutional law. Statutory interpretation is the process of interpreting and applying legislation to the facts of a given case. Constitutional law is the body of law that governs the interpretation of the United States Constitution and covers such legal areas as the relationship between the federal government and state governments, the rights of individuals, and other fundamental aspects of the application of government authority in the United States.

The PATRIOT and Freedom Acts

The controversial Patriot Act was enacted following September 11 to protect national security, and allows the government extensive power over surveillance.

Learning Objectives

Identify the key provisions of the Patriot Act and the controversies that followed from it

Key Takeaways

Key Points

  • The act expanded the definition of terrorism to include domestic terrorism, thus enlarging the number of activities to which the USA PATRIOT Act ‘s expanded law enforcement powers can be applied.
  • The USA PATRIOT Act has generated a great deal of controversy since its enactment. Opponents of the Act have been quite vocal in asserting that it was passed opportunistically after the September 11 attacks, believing there to have been little debate.
  • Critics such as EPIC and the ACLU strongly criticized the law for violating the Fourth Amendment, with the ACLU going so far as to release an advertisement condemning it and calling for it to be repealed.

Key Terms

  • jurisdiction: the power, right, or authority to interpret and apply the law

Background of the PATRIOT Act

The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act), also commonly known as the Patriot Act, is an Act of the U.S. Congress that was signed into law by President George W. Bush on October 26, 2001. The Patriot Act came as a response to the terrorist attacks of September 11th and included:

image

Patriot Act Signing: President George W. Bush signs the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act, Anti-Terrorism Legislation, in the East Room Oct. 26. “With my signature, this law will give intelligence and law enforcement officials important new tools to fight a present danger,” the President said in his remarks.

  • A significant reduction of restrictions to law enforcement agencies’ gathering of intelligence within the United States
  • An expansion of the Secretary of the Treasury’s authority to regulate financial transactions, particularly those involving foreign individuals and entities
  • A broadening of the discretion allowed to law enforcement and immigration authorities in detaining and deporting immigrants suspected of terrorism-related acts.

The act also expanded the definition of terrorism to include domestic terrorism, thus enlarging the number of activities to which the USA PATRIOT Act’s expanded law enforcement powers can be applied. On May 26, 2011, President Barack Obama used an Autopen to sign a four-year extension of three key provisions in the USA PATRIOT Act: roving wiretaps, searches of business records (the library records provision), and conducting surveillance of lone wolves– individuals suspected of terrorist-related activities not linked to terrorist groups. Republican leaders questioned whether the use of the Autopen met the constitutional requirements for signing a bill into law.

Due to its controversial nature, a number of bills were proposed to amend the USA PATRIOT Act. These included the Protecting the Rights of Individuals Act, the Benjamin Franklin True Patriot Act, and the Security and Freedom Ensured Act (SAFE), none of which passed. In late January 2003, the founder of the Center for Public Integrity, Charles Lewis, published a leaked draft copy of an Administration proposal titled the Domestic Security Enhancement Act of 2003. This highly controversial document was quickly dubbed “PATRIOT II” or “Son of PATRIOT” by the media and organizations such as the Electronic Frontier Foundation. The draft, which was circulated to ten divisions of the Department of Justice, proposed to make further extensive modifications to extend the USA PATRIOT Act. It was widely condemned, although the Department of Justice claimed that it was only a draft and contained no further proposals.

Controversy

The USA PATRIOT Act has generated a great deal of controversy since its enactment. Opponents of the Act have been quite vocal in asserting that it was passed opportunistically after the September 11 attacks. Opponents view the Act as one that was hurried through the Senate with little change or debate before it was passed. Senators Patrick Leahy and Russell Feingold proposed amendments to modify the final revision.

It was placed there without a warrant, which caused a serious conviction obstacle for federal prosecutors in court. Through the years the case has risen to the United States Supreme Court where the conviction was overturned in favor of the defendant. The court found that increased monitoring of suspects caused by such legislation like the Patriot Act directly put the suspects Constitutional rights in jeopardy.

The USA PATRIOT Act’s expansion of court jurisdiction to allow the nationwide service of search warrants proved controversial for the Electronic Frontiers Foundation (EFF). They believe that agencies will be able to shop for judges that have demonstrated a strong bias toward law enforcement with regard to search warrants, and use only those judges least likely to say no even if the warrant doesn’t satisfy the strict requirements of the Fourth Amendment to the Constitution. They also believe that the expansion reduces the likelihood that smaller ISPs or phone companies will try to protect the privacy of their clients by challenging the warrant in court; for example a small San Francisco ISP served with such a warrant may be unlikely to have the resources to appear before the New York court that issued it. They also assert that only the communications provider will be able to challenge the warrant as only they will know about it; many warrants are issued ex parte, which means that the target of the order is not present when the order is issued.

For a time, the USA PATRIOT Act allowed for agents to undertake “sneak and peek” searches. Critics such as the Electronic Privacy Information Center (EPIC) and the American Civil Liberties Union (ACLU) strongly criticized the law for violating the Fourth Amendment, with the ACLU going so far as to release an advertisement condemning it and calling for it to be repealed. However, supporters of the amendment such as Heather Mac Donald, a fellow at the Manhattan Institute and a contributing editor to the New York City Journal, expressed the belief that the act was necessary because the temporary delay in notification of a search order could stop terrorists from tipping off counterparts under investigation.

The USA Freedom Act

The USA FREEDOM Act (“Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection and Online Monitoring Act”), more commonly known as the Freedom Act, is a U.S. law that was enacted on June 2, 2015, the day after the PATRIOT Act expired. The Freedom Act┬ámodified several provisions of the Patriot Act and limited the ability of American intelligence agencies, such as the NSA, to bulk-collect telecommunications data on US citizens. It restored authorization for roving wiretaps and tracking “lone wolf” terrorists.

National Security Agency Surveillance

After 9/11 attacks, the United States government passed and extended policies of surveillance for public citizens.

Learning Objectives

Summarize the history of the warrantless surveillance controversy and its relationship to the so-called war on terror

Key Takeaways

Key Points

  • The NSA warrantless surveillance controversy concerns surveillance of persons within the United States during the collection of foreign intelligence by the U.S. National Security Agency (NSA) as part of the war on terror.
  • If no fair reading of Foreign Intelligence Surveillance Act can be found in satisfaction of the canon of avoidance, these issues will have to be decided at the appellate level, by United States courts of appeals.
  • As part of the terrorist surveillance program, the NSA was authorized by executive order to monitor phone calls, Internet activity (web, e-mail, etc. ), text messaging, and other communications, all without search warrants.

Key Terms

  • executive order: A legally enforceable order, decree, or regulation issued on the authority of the head of the executive branch of government.

Background

The NSA warrantless surveillance controversy concerns surveillance of persons within the United States during the collection of foreign intelligence by the U.S. National Security Agency (NSA) as part of the war on terror. Under this program, referred to by the Bush administration as the terrorist surveillance program, part of the broader President’s Surveillance Program, the NSA was authorized by executive order to monitor, without search warrants, the phone calls, Internet activity (web, email, etc.), text messaging, and other communication involving any party believed by the NSA to be outside the U.S., even if the other end of the communication lies within the U.S. Critics, however, claimed that it was an attempt to silence critics of the Bush administration and their handling of several hot button issues during its tenure. Under public pressure, the Bush administration ceased the warrantless wiretapping program in January 2007 and returned review of surveillance to the FISA court. Subsequently, in 2008 Congress passed the FISA (Foreign Intelligence Surveillance Act) Amendments Act of 2008, which relaxed some of the original FISA court requirements.

image

National Security Agency: The seal of the U.S. National Security Agency. The first use was in September 1966, replacing an older seal which was used briefly.

During the Obama Administration, the NSA has officially continued operating under the new FISA guidelines. However, in April 2009, officials at the United States Department of Justice acknowledged that the NSA had engaged in over-collection of domestic communications in excess of the FISA court’s authority, but claimed that the acts were unintentional and had since been rectified.

NSA Warrantless Surveillance Controversy

All wiretapping of American citizens by the National Security Agency requires a warrant from a three-judge court set up under the Foreign Intelligence Surveillance Act. After the 9/11 attacks, Congress passed the Patriot Act, which granted the President broad powers to fight a war against terrorism. The George W. Bush administration used these powers to bypass the FISA court and directed the NSA to spy directly on al-Qaeda in a new NSA electronic surveillance program. Reports at the time indicate that an “apparently accidental” “glitch” resulted in the interception of communications that were purely domestic in nature. This action was challenged by a number of groups, including Congress, as unconstitutional.

The exact scope of the program is not known, but the NSA is, or was, given total and unsupervised access to all fiber-optic communications going between some of the nation’s major telecommunication companies’ major interconnect locations, including phone conversations, email, web browsing, and corporate private network traffic. Critics said that such “domestic” intercepts required FISA authorization under the Foreign Intelligence Surveillance Act. The Bush administration maintained that the authorized intercepts were not domestic but rather foreign intelligence integral to the conduct of war. Additionally, they claimed that the warrant requirements of FISA were implicitly superseded by the subsequent passage of the Authorization for Use of Military Force Against Terrorists (AUMF). FISA makes it illegal to intentionally engage in electronic surveillance under appearance of an official act, or to disclose or use information obtained by electronic surveillance under appearance of an official act knowing that it was not authorized by statute. This is punishable with a fine of up to $10,000 or up to five years in prison, or both. In addition, the Wiretap Act prohibits any person from illegally intercepting, disclosing, using, or divulging phone calls or electronic communications; this is punishable with a fine or up to five years in prison, or both.

Constitutional Law Issues

The constitutional debate surrounding executive authorization of warrantless surveillance is principally about separation of powers (checks and balances). If, as discussed above, no fair reading of FISA can be found in satisfaction of the canon of avoidance, these issues will have to be decided at the appellate level, by United States courts of appeals. It should be noted that in such a separation of powers dispute, the burden of proof is placed upon the Congress to establish its supremacy in the matter: the Executive branch enjoys the presumption of authority until an Appellate Court rules against it.

Domestic vs. Foreign Intelligence

The administration holds that an exception to the normal warrant requirements exists when the purpose of the surveillance is to prevent an attack from a foreign threat. Such an exception has been upheld at the Circuit Court level when the target was a foreign agent residing abroad, a foreign agent residing in the U.S., and a U.S. citizen abroad. The warrantless exception was struck down when both the target and the threat were deemed domestic. The legality of targeting Americans acting as agents of a foreign power and residing in this country has not been addressed by the U.S. Supreme Court, but has occurred at least once, in the case of Aldrich Ames.