Is National Security More Important Than Civil Liberties?

23 Mar 2015 01 May 2017

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Within the context of the "war on terror," When the constitution and Bill of Rights were drawn up, one ideal for America was at the front and centre of the founding fathers minds, freedom. Since then every war America has been involved in has managed to end up undermining the Bill of Rights, and the protection of this freedom in some way or another. Out of all the amendments in the Bill of Rights, the fourth amendment, arguably, comes under the most scrutiny every time.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." [1] 

It is by no means the only amendment to be disputed in times of war, as shall be looked at, but it is one that frequently shows the diverse public opinions of what takes priority in times of crisis. How is it that the issue of national security is constantly able to challenge the bill of rights then, and why does it repeatedly recur every time the government conceives there is a threat to America. Whether it is the finest of American presidency like Abraham Lincoln, or the less esteemed George W. Bush, many have lessened themselves to abusing civil liberties and regardless of reputation; few have had trouble in doing so.

As a reaction to the terrorist attacks on 11 September 2001, Congress and President Bush approved the USA PATRIOT Act. The Attorney general John Ashcroft described it as a "package of tools" to combat terrorism, which initially at least, the public agreed with and supported. "Only 12 percent of respondents in a Newsweek poll feared the bush administration's response to terrorism was "going too far in restricting civil liberties"... poll conducted in November 2001" [2] . However, the majority that responded to this poll were probably under the assumption that the restriction of civil liberties would be within the confines of the law and that the only civil liberties lost would be those stated in the USA PATRIOT Act. If in fact the public knew Bush had been illegally wiretapping US citizens, the results would have probably been significantly lower; as seen in the poll taken by Zogby international in 2006 when the public found out about the illegal wiretapping bush had carried out. "By a margin of 52 to 43 percent, citizens want Congress to impeach President Bush if he wire-tapped American citizens without a judge's approval" [3] 

This represents a greater public support to impeach Bush, than they showed towards impeaching Bill Clinton in 1998.

Bush argued that he acted legally and for the greater good of US citizens. Associate Director of University of Virginia School of Law's Centre for National Security Law, Robert turner says, by opposing Bush's actions "People within this country…would be asserting that their privacy interests are of greater importance than the right to exist of perhaps tens - or hundreds-of-thousands of their fellow citizens". Bush defends his actions based on the grounds the executive has inherent constitutional authority to ignore the law, moreover his actions were authorised by congress. Bush's administration disputed that under article 2 of the constitution, he had the superseding right and responsibility to protect the nation from attack. A justification carrying little weight as there is no actual wording in Article 2 for the president to overrule laws in the interest of national security. On top of this the amendment of Title III of the omnibus crime control and safe streets Act of 1968 meant that surveillance carried out must be "pursuant to the foreign intelligence surveillance act of 1978" [4] . Foreign Intelligence Surveillance Act (FISA), which was set up after the President Richard Nixon Watergate scandal, was "an un-constitutional infringement on the president's constitutional authority" [5] according to the administration. Despite the administrations challenge of FISA, which has quite a strong claim, FISA was nevertheless passed and enforced at the time of the wiretaps.

To claim that congress authorised Bush's surveillance methods is a thin case. Bush asserts that when congress approved the Authorisation to Use Military Force (AUMF) in 2002, they sanctioned NSA to spy on US citizens. He said that FISA prevented warrantless wiretapping "except as authorised by statute". The AUMF provided the president to "use all necessary and appropriate force and appropriate force against those nations, organisations, or persons he determined planned, authorised, committed, or aided the terrorist attacks", which bush argued over ruled FISA. [6] The act in fact made no mention of domestic surveillance though and for the AUMF to overcome FISA, congress would have to revoke the FISA section stopping wiretapping, because statutes do not countermand formerly approved, specific rules. Considering a declaration of war allows for only 15 days of warrantless wiretaps, it is hard to perceive that the lower legal status of AUMF could allow for warrants with no limitations. In 2007, Bush signed a new law, which changed the legal definition of "electronic surveillance", which consequently made it easier to listen to conversations of US citizens as long as the person on the other end of the phone is" reasonably believed" to be overseas. To all intents and purposes, it made legal the surveillance Bush had been running since 2001; essentially proving that prior to this phrasing alteration, his previous claim of inherent authority to ignore the law was invalid. Based likely on the fact that Bush did act illegally, the poll shows a number of Americans want Bush impeached, an indication that the public accepts national security overriding certain civil liberties in times of terrorism but there is a limit of how much they are willing to relinquish, and it must be carried out inside the precincts of the law.

Gould argues that the public are happy with restricted liberties in times of national emergency as long as it passes six criteria. [7] First, the search or surveillance is not intrusive and it is the least restrictive method possible. Second, if the threat is perceived to be great. Third, those that are responsible for the search or surveillance must be seen as competent. Fourth, the method employed is considered to be effective. Fifth, when limiting the search or surveillance to more relevant suspects might smack of illegal discrimination. Finally, but probably most controversially as seen with Bush, when individuals are unaware that the search or surveillance is taking place. If there is one consistent circumstance that civilians are willing to surrender civil liberties under, it is that they are amidst a national crisis. "A month before September 11th, 80 percent of respondents in a Harris poll said it was extremely important that no one be allowed to watch or listen to them without their permission." [8] In circumstances other than national crisis, the public appear largely in favour of civil liberties over national security. Jospeh Nacchio, executive of Quest communications Telecommunications, refused Bush access to client information based on a no show of warrant. The executive's refusal was on February 27th 2001, well before September 11th or any national crisis; Bush, then, was not only acting illegally, but also against the public's interest for which he uses to justify his surveillance.

Despite the apparent resentment towards surveillance being used inappropriately in times of peace, David Bewey Taylor says that often businesses, shops and consumers choose on their own accord to "sit within the private grounds that are under the twenty-four-hour gaze of cameras." [9] Distrust over national security policies looks to be a decreasing issue among Americans, particularly "among younger Americans who are also more familiar with television programmes like big brother" [10] . Younger generations have been born into, and grown up with surveillance as a normality of life. Generally, they are more accepting of surveillance because it is what they are used to, and through the increasing reach of media outlets such as the internet, criminal and terror acts have become more evident. Public support for surveillance is conditional though, they are all for supporting government's restrictions on civil liberties to catch criminals, as long as it does not affect them in anyway. Whether it is a bag search at the airport or frisked by police on the street, people are happy to see it go on until it happens to them.

This relaxing attitude towards civil liberty restrictions has stemmed greatly from the new idea of concept wars. With no definitive enemy, concept wars like the war on drugs or the war on terror have no limitations on the period or region of the war. Terror and drugs will always exist in some form, and because no one sole country is to be blamed, there is no possibility for defeat thus any pressure to end measures that have been undertaken to combat the enemy. Barrack Obama is the first president to drop the rhetoric war on drugs since President Nixon declared the term in 1969. In the four decades the war on drugs has been around, there has been extremely little resemblance to a typical war, no formal enemy and no invasion by any army. It has on the other hand, provided a great excuse to allow increased surveillance through such forms as infrared scanning helicopters. Originally, with no recording or search of property, the infrared scans of people's houses required no warrant. The Supreme Court later ruled in 2001 that it was in fact an unreasonable search under the fourth amendment. [11] Until 2001 however, the government managed to rationalise, based on winning a war they invented, the use of infrared helicopters to spy on people. The drug problem in America, which is made out to be so bad that they declared war against it, is actually directly accountable for fewer deaths than firearms; the same is true for terrorism compared to firearms. In 2001, 7.1 people died per 100,000 through drug abuse [12] . Firearms on the other hand killed 15.2 out of 100,000 people. [13] If disregarding the fourth amendment can be justified by the drug and terrorist trouble, then considering guns are responsible for more deaths, the second amendment should also surely have limitations put on it in the interest of national security. Pro-gun lobbyers would argue the drug trade is what causes the high gun crime, but equally arguable is the fact that if the guns were not there in the first place gun crime could not exist, as seen by USA gun crime figures compared to countries with firearm restrictions. [14] Key promoters of the war on drugs such as President Reagan, George W. Bush senior, and George Bush, as well as his promotion of war on terror, had no plans to tighten gun restrictions, even the assassination attempt on Reagan's life was not enough to convince him. Democrat presidents like Obama have fared no better, he proposed an assault weapon ban in his election campaign, in practice, he has done nothing to restrict assault weapons and actually reduced gun restrictions by signing a law to permit their use in national parks. It raises the notion that it is not a case of national security being above the law, and thus able to abuse civil liberties; otherwise, the law could place restrictions on firearms too. Instead, it appears that the fourth amendment is considered less important than other rights, like the second amendment, and so in times of national security it is acceptable for the law to override civil liberties if needed in certain circumstances.

The fact is though that each amendment was made to be as important as the next, so if second amendment is too important to violate, then likewise, so should civil liberties that are protected under the fourth amendment. The government should not be able to choose which constitutional rights take priority, and which ones can be adjusted just so they fit best what the government wants to achieve. The only reason the government uses to justify civil liberties abuses, are the concept wars that the government has created itself. One of the biggest problems with a concept war is its vagueness allows for legal interpretation and civil liberties abuse. You could argue that for the government to pass something it knows will be hard or illegal, all it has to do is make up a crisis and it can then be used as a scapegoat to implement unconstitutional laws; as seen with Bush's war on terror and the illegal wiretaps. Based on these grounds a government that opposed the banks operations, after the recent financial crisis they caused, could implement anti-capitalist restrictions to the point in which the government intervenes in their daily business, an idea which is unlikely, as seen so far post financial crisis, to ever happen.

The impression that national security out ranks civil liberties in national emergencies is not a new assumption shaped by concept wars, Abraham Lincoln conceded this idea during the American civil war. This time it was not the fourth amendment called into question, Lincoln's actions disregard the first amendments protection of free speech, the sixth amendment and habeas corpus. On the 25th of May, John Merryman was arrested and held on suspicion of trying to get Marylanders to join the confederate army. When the chief of justice ordered the release of Merryman, Lincoln told his generals to refuse to release him because he had suspended habeas corpus. [15] Lincoln later took the law in to his own hands again in the case of Lambdin P. Milligan in 1864. He was a minor Indiana democratic politician who opposed the war, republicans and Lincoln. A military commission in Indiana sentenced him to death for his allegedly treasonous activities. He was tried before a military commission despite the civilian courts being fully functional. [16] Not only did Lincoln act above the law in those cases, he also suppressed the media, arresting editors and even his generals took it upon themselves to arrest them or shut down opposition papers. The suspension of habeas corpus in the northern states is right to be regarded as unconstitutional. As for the southern states though, they declared themselves out the union and thus their constitutional rights; also, they were in effect in a state of rebellion, which falls under the rule of suspending habeas corpus. Considering the extent to which Lincoln acted unconstitutionally towards the north, the public did little to oppose him. Back then, national security appears to be regarded a higher priority than civil liberties in time of war. A probable reasoning for this is the somewhat different circumstances back then, which made the public more conscious of their safety and security. Firstly, America was actually being attacked by troops on their sovereign territory; this is not the case for the war on drugs or terror. Secondly, although less noteworthy, America was no way near the economic and military power that it is today, hence the threat of European powers was still an ongoing, all be it reducing, fear in the back of Americans minds, especially if America was weakened to heavily during the civil war.

Throughout history, the battle between civil liberties and national security has been ongoing, flared up in times of national crisis. All the wars that have restricted civil liberties have one ironic consistency; they implement civil liberty restrictions in the short run to protect them in the long run. The precaution needed is that the restrictions justified by national crisis remain only in times of national crisis, otherwise the enemy's, whether it be a real country or a concept like terror, will have dealt an even more devastating blow through constitutional neglect, than the original reason they were introduced in the first place. This risk is becoming ever more present through time and is no more apparent than in the modern concept wars, which with no definitive time period, they run the risk of dragging out civil liberty violations to the point where they become accepted as part and parcel of everyday life. Whether this is to be the case or not, could be realised in the not too distant future. Obama has already dropped the rhetoric war on drugs; and with the withdrawal of troops from the war in Afghanistan expected by 2015, which for many is the reminder of September 11th and the war on terror, how long will the government be able to justify the idea that national security is more important than civil liberties.



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