GOVT 480
LECTURE N : C 15 16OTES HAPTERS AND
Chapter 15 Outline (Homeland Security and Constitutional Issues)
The debate concerning Homeland Security’s role in the war on terrorism is not just an
idle passing of time in the coffee shop, it raises serious Constitutional concerns. We have
successfully avoided establishing any sort of Gestapo-like organization in this country, or
anything like the UK’s MI5/MI6. Benjamin Franklin once said: “He who would trade
liberty for some temporary security, deserves neither liberty nor security.”
In answering the general hysteria after 9/11, did Congress push through legislation to
“protect the homeland” that in reality undermined America’s civil liberties? The short
answer is, “yes,” but they first did so many years before when they authorized the
president to be able to declare when a state of emergency exists, which in turn allows
superseding the Constitution until the emergency has expired. Legislation following 9/11
simply adds to the magnitude of the problem. As discussed earlier, all terrorism is
criminal in fact and in nature—it is terrorism only in that it is political in nature and the
terrorism label is applied by a government authority.
Americans have to decide on how much freedom and liberty, if any, they want to
surrender for “security.” Such decisions generally are not left up to the people, however,
and the key to our freedoms lies in the character of those we place in authority at all
levels.
There are always trade-offs when considering security. The question of the suspension of
liberty lies at the root of arguments concerning homeland security. Proponents at one end
of the spectrum argue that we should give up some civil liberties in order to gain security.
On the other side of the spectrum, people argue that limiting civil liberties is far more
dangerous than the more limited threats posed by terrorism. Decreasing civil liberties
limits individual freedom and increases government power. It may increase protection
from terrorism, but this will also increase citizen vulnerability to the abuse of government
power.
The most controversial aspects of counterterrorism are symbolized by the USA Patriot
Act. The most sensitive aspect of the law deals with intelligence gathering and sharing.
The USA Patriot Act is actually an acronym; take some time to look up the full name.
Passed in October 2001, it expands law enforcement’s power to investigate and deter
terrorism. Opponents claim that it adversely affects civil liberties. By giving the executive
more power, the Constitution is threatened, and increased executive powers will be used
to mask an attack on civil liberties. Unfortunately, Congress has relinquished its power to
the president, and failed to provide sufficient room for judicial review. Proponents claim
that it introduces reasonable measures to protect the country against terrorists. The act
was amended and renewed in 2006, and the ability to collect and analyze domestic
intelligence remained part of the law. Provisions for allowing roving wiretaps, the
increased power to seize evidence, and increasing wiretaps were approved in 2011. The
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provisions of Patriot Act expired in June 2015 and within days the USA Freedom Act
replaced it. ( USA Freedom Act is also an acronym; take some time to look up the fullThe
name.) Supporters of the USA Freedom Act believe it represents major reforms that will
ensure the protection of civil liberties. Critics have renewed their past arguments, and the
Constitutional debate continues.
The chapter next discusses executive power and the courts. This section is somewhat
misleading because it does not tell the whole story. The reality is that judicial activists
continue to alter the separation of powers as set out in the Constitution to the detriment of
the War on Terror and ultimately the American people.
In the Authorization for Use of Military Force (AUMF), Congress empowered the
President "to use all necessary and appropriate force against those . . . he determines
planned, authorized, committed, or aided the terrorist attacks . . . on September 11,
2001." In v. , the Supreme Court initially recognized that detaining Hamdi Rumsfeld
individuals captured while fighting against the United States in Afghanistan for the
duration of that conflict was a fundamental and accepted practice incident to war. The
Defense Department then established Combatant Status Review Tribunals (CSRTs) to
determine whether individuals detained at the U.S. Naval Station at Guantanamo Bay,