Running head: Research Paper 1
RESEARCH PAPER: COMPARE AND CONTRAST MAJOR LEGISLATION
ASSIGNMENT INSTRUCTIONS
OVERVIEW
The purpose of this paper is to analyze, compare, and contrast various pieces of major legislation
that relate to the global war on terror (i.e. the U.S.A. Patriot Act (USAPA), the National Defense
Authorization Act (NDAA), etc.). Students will also discuss the advantages and disadvantages
of each piece of legislation discussed. Finally, students will select a major piece of legislation
and take a stance either in support or opposition of that legislation. Students will provide a
cogent and academic argument to support their stance based upon sound, scholarly research.
INSTRUCTIONS
All papers must be completed through the lens of a Biblical Worldview where students will
incorporate appropriate biblical passages and/or resources. The paper must be completed in APA
formatting and consist of 20-25 pages (excluding all title, abstract and reference pages). In
addition to the course text, all papers must utilize at least 15 outside scholarly sources to support
evaluation an analysis.
At a minimum, the following sections are required:
Introduction
o Provide a brief introduction about the key elements in the paper.
Background and Problem Statement
o Preliminary research must be conducted using practitioners, government sources,
articles, etc., to identify and discuss the major pieces of legislation such as those
listed above (The USA Patriot Act, The NDAA, etc.).
o The thesis statement will discuss and describe the concepts cited and the
significance of each as they relate to one another. The thesis statement must be
clear and concise (approximately 250 words).
Literature Review
o The literature review is a critical component of a proposal. This section highlights
what has been achieved related to your topic. Answer the following questions:
What is the USA Patriot Act?
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What is the NDAA?
What other pieces of legislation play a key role in prosecuting the global
war on terror?
What role does the FISA court and process play?
What role has the NSA played within this process?
What technologies have been employed to further this legislation?
What role does indefinite detention play?
What is unlawful enemy combatant?
What aspects of the legislation is viewed as Constitutional?
What aspects of the legislation are brought into question with regards to
the U.S. Constitution?
How has the legislation impacted American civil liberties?
What are the supporting arguments for the legislation?
What are the opposing arguments against the legislation?
How should the legislation be changed or amended?
What are the central themes and arguments in current literature?
What is missing from current literature?
o Scholarly articles are required. Although some information from government
sources may be used sparingly, approximately 80% of the review should
incorporate recent scholarly articles (published within the last 10 years).
o Do not state your opinion in this section. All information provided must be
properly cited and must be from quality academic sources. To achieve this, use
direct quotations, paraphrases, and synthesized information from multiple
sources. For example, this statement synthesizes the opinions of 4 scholars:
“Researchers have argued that disaster planning is critical to minimizing the
negative effects for emergency responders (Brown, 2010; Caldwell, 2009; Moore,
2011; Stanley, 2008).”
Conclusion
o Summarize your findings. What are the key points in the literature with regards to
the selected piece of legislation and how it impacts both the U.S. efforts in the
global war on terror?
o Since passage, how has the legislation impacted the average American citizen’s
civil liberties?
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o What steps should be taken to further improve the legislation?
o What steps might be taken to reduce any potential encroachment on American
civil liberties?
o What type of response is needed moving forward? What or who should be
engaged (e.g., the political community, military, federal law enforcement, local
law enforcement citizens, etc.)?
Note: Your assignment will be checked for originality via the Turnitin plagiarism tool.
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Compare and Contrast Major Legislation Related to Global Terror
CJUS820 Advanced Topics in Terrorism and Intelligence
Albert Lopez
Liberty University
Professor Fred Newell
May 6, 2022
Running head: Research Paper 5
Compare and Contrast Major Legislation Related to Global Terror
Abstract
The ‘global war on terror’ officially commenced in 2001 following the 9/11 attack, which made
fighting terrorism the priority of the U.S. foreign policy. President George W. Bush condoled
with all Americans and supporters from the international community. He shared what is believed
to be in the best interest of the U.S. citizens and other vulnerable groups in foreign countries. The
declaration of the ‘global war on terror’ kicked off the implementation of pieces of legislation
aimed to support the U.S.-led military operations to flush terrorists from their hideouts, eliminate
future threats and eradicate terror crime. Therefore, this research explores, analyzes, compares,
and contrasts various pieces of legislation related to the war on terrorism to determine their
impact on the operation. The paper also examines the effects of the major legislation, such as the
USA Patriot, FISA, and AMUF, as well as federal agencies like NDAA, NSA, and FBI, on civil
liberties.
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Introduction
The United States took multiple approaches to counter the activities of terrorist
organizations that were gaining ground on the global landscape. This research paper focuses on
the legal tactics and solutions that Congress and other federal organs adopted to respond to the
global terror threat. In particular, the paper analyzes, compares, and contrasts major legislations
enacted in the U.S. and inspired by Islamic terrorism, including the USA Patriot Act, NDAA,
Terrorist Expatriation Act, Secure Fence Act, Homeland Security Act, and others. Congress has
continued to create new and amend existing major legislation to bolster the military and
intelligence efforts in the Arab states and back at home (Office of the Director of National
Intelligence, n.d.). Preventing future attacks remains a priority to Congress and key departments
from federal to state levels of government. For instance, the Department of Justice has
immensely helped security agencies to enforce the Patriot Act since it became law after 9/11 and
holds a leading role in ensuring that operations inside and outside national borders are
successful. The analysis utilizes the biblical worldview to connect the arguments, themes, and
views to appropriate Christian teachings as documented in the holy bible.
The paper examines how the major legislation has taken shape since the government
declared the war against global terrorism. Through the legislative arm, Federal institutions
announced coordinated efforts and strategies to enhance the country’s security and resilience to
terrorism. However, the Patriot Act is one of the major laws that have raised multiple concerns
due to its controversial interaction with the constitution (Office of the Director of National
Intelligence, n.d.). Ideally, a constitution is a supreme and living document that all administrative
organs and civilians must obey. Therefore, this paper provides more insight into such issues and
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proposes reasonable changes and amendments that could improve the legislation to ensure that
issues of constitutionality and ethicality do not derail and undermine the war on global terrorism.
Background
More than two decades since the deadly 9/11 terror incident, it appears as if the United
States has moved from the dark days of rampant terrorism. Countering terrorism and the overall
commitment to keep all Americans safe commenced immediately to help put everything and help
the government and people construct a safe country. However, many Americans aged 30 or older
still hold vivid memories of the horrible incident that claimed almost 3,000 people in a series of
deadly attacks. On September 11, 2001, the horror unfolded when terrorists unleashed twin
attacks in New York City and Shanksville (Office of the Director of National Intelligence, n.d.).
Some of the memorable events in the aftermath of the unforgettable attacks include the
immediate counterterrorism efforts that were inspired by the painful loss of life and destruction
of property. The federal government swung into action by coordinating military, intelligence,
and security organs to decide the course of action to repay for the unwelcomed deed and prevent
the same from repeating on American soil. Some of these efforts include sanctioning military
missions in Arab states to flush out terrorists from their hideouts and eliminate the threat to
national security. Afghanistan invasion came nearly a month after 9/11 after the Taliban regime
refused to hand over Osama bin Laden who masterminded the attack, for prosecution.
The Director of National Intelligence’s office explains that the USA Patriot Act was
necessary about two decades ago to create a platform for security, intelligence, and military
teams to thwart and penalize acts of terrorism within national borders and overseas (Office of the
Director of National Intelligence, n.d.). Section 314 of the Act establishes that law enforcers are
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mandated to pinpoint, interrupt, and avert acts of terrorism and activities classified as money
laundering by encouraging primary actors to cooperate to ensure successful operations (Office of
the Director of National Intelligence, n.d.). The law came at a time when the government was in
a desperate position to pursue the 9/11 perpetrators, and there was a lack of cooperation from
Taliban regimes in Arab countries. Law markers also recognized the absence of a comprehensive
framework for helping law enforcement and criminal justice systems to detect and handle issues
related to terrorism. Without a doubt, the passage of the Patriot Act, NDAA, and other
significant laws was a substantial step in the global war against terrorism.
Problem Statement
The USA Patriot Act and the National Defense Authorization Act (NDAA) laws came a
decade apart, but they have significantly impacted the country’s counterterrorism efforts.
Therefore, this paper examines these laws and other critical legislation in the war against global
terrorism. For instance, two American presidents have been in the spotlight because of their firm
and harsh response to international terrorism. President George W. Bush executed powers
leading to the birth of the USA Patriot Act and its enactment to provide a legal space for fighting
terrorism (Office of the Director of National Intelligence, n.d.). However, the law continued to
receive growing, extensive criticism because opposing groups claimed that it exercised more
powers to the extent of rendering particular constitutional provisions ineffective. President
Barack Obama maintained the same momentum by ensuring that no stone was left unturned in
implementing counterterrorism efforts. He assented to the National Defense Authorization Act,
which also brought similar levels of controversy just like the Patriot Act (Daskal, 2013). The
laws increased the options available for key actors in anti-terrorism programs to ensure that
identified suspects and perpetrators are punished accordingly. However, many issues emerged
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even before the passage of these laws as opponents cried foul that the legislation would weaken
constitutional provisions and award the president superfluous decision-making mandates.
Comparing and contrasting these laws exposes a series of constitutional and non-constitutional
issues that not only limit the effectiveness of counterterrorism legislation but also obstruct
comprehensive strategies for pursuing terrorists.
Literature Review
What is the USA Patriot Act?
Generally called “Uniting and Strengthening America by Providing Appropriate Tools
Required to intercept and Obstruct Terrorism” or simply the USA Patriot, the legislation
emerged barely two months after 9/11 to spearhead counterterrorism efforts to ensure the
homeland is protected from planned or future attacks (Office of the Director of National
Intelligence, n.d.). Congress members debated and passed the legislation in a rush after the 9/11
attack to facilitate an immediate response to the growing threat from terrorism. The Act
primarily enables law enforcement and intelligence agencies to conduct investigations,
prosecute, and punish terror suspects or terrorists. The priority of the legislation was to ensure
that law enforcers have unlimited access to all essential investigative tools as covered in the Act
to provide additional impetus to fighting terrorism and an array of serious crimes. President
George W. Bush, together with Congressional members who unanimously approved the law,
expanded the mandates of law enforcement agencies in regard to searches and surveillance.
Section 314 of the Act gives law enforcement agencies authority to pinpoint, disturb, and avert
acts of terrorism and various serious crimes, such as money laundering (Office of the Director of
National Intelligence, n.d.). Thus, the response to terrorism by the federal law enforcement and
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intelligence agencies occurs through a coordinated framework to ensure that information is
shared efficiently.
Since its enactment on October 26, 2001, the Act has critically impacted counterterrorism
efforts and bolstered national security despite widespread criticism. The United States has not
suffered another major attack or an equivalent to the 9/11 incident due to the Patriot Act (Office
of the Director of National Intelligence, n.d.). The federal government received powers to
investigate terrorism threats that are likely to cause disorder, cost lives, and damage property.
For instance, the Act enabled federal authorities to modify the investigative tools by utilizing
advanced technologies, reduced barriers to comprehensive investigations by security agencies,
and gave investigators, law enforcers, and the entire criminal justice system the capacity to
address all national and non-national security issues. For example, the law gave investigators and
federal security agencies the ability to conduct impromptu searches and seize properties without
providing search warrants if the person or property is suspected to be linked to a terror threat.
Federal security agencies could access business records through court orders to verify that
entities, such as chemical plants and hardware stores, are not source materials and selling them to
terrorists to build bombs. The Patriot Act prevents individuals and organizations from funding
terrorists or money laundering activities for financing organized crimes.
What is the NDAA?
The National Defense Authorization Act (1961) is among the oldest laws adopted to
enhance the efficiency of law enforcement in defending the homeland. The NDAA gives the
U.S. defense organs direction to modify their strategies and organizations, including managing
funds allocated for military purposes. The U.S. adopted the law in 1961; however, the law
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requires yearly review and approval by Congress (Daskal, 2013; Paulussen, 2012). The
institutions charged with defense determine the NDAA, for example, the Home Armed Services
Cottee and Armed Services Committee. Congress gets the ability to select and state the
procedures for defense policies from the NDAA, which also depend on the government’s defense
priorities (Paulussen, 2012). Being an annual bill, the NDAA facilitates Congress to adopt and
implement flexible defense policy and guidelines that reflect the current military needs. Besides,
the yearly review ensures that appropriations bills facilitate adequate funding.
However, NDAA is another legislation with substantial controversies because of its
provisions for fighting global terror. Those opposed to the law claim that NDAA allows the
federal government to extend its mandate beyond what is allowable as per the constitution
(Paulussen, 2012). For instance, President Barrack Obama was criticized in 2011 prior to signing
the NDAA for the 2012 financial year. Kenneth Roth, who worked as the Human Rights Watch
executive director, accused President Obama of enshrining unlimited detention of terrorists and
terror suspects without trial (Paulussen, 2012). The federal law enforcement agencies had 46
terror suspects in their custody in Guantanamo Bay without preferring charges or taking them
through a trial.
Other Pieces of Legislation in the Global War on Terror
In 2001, the US also enacted the Authorization for the Use of Military Force (AUMF),
permitting the armed defense teams to apply force against the perpetrators of the 9/11 attacks.
President George W. Bush appended his signature to make AUMF a law just a week after the
attack on September 11, 2001 (Daskal, 2013). That gave the president the powers to exercise all
essential but appropriate force to bring to book those behind the deadly attack, including
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organizations, individuals, and nations involved in orchestrating, authorizing, committing, or
supporting the terrorists to execute the attack (Daskal, 2013). The president also received the
authority to apply force against those who harbored adversaries or persons. The primary goal of
this robust legislation was to deter potential attackers from targeting the U.S. and its allies in
their future terrorism plans.
Another important legislation to highlight is the Immigration and Nationality Act, which
comes with the recent Amendment called the Terrorist Expatriation Act. The Immigration
Nationality Act (INA) addresses issues related to migrants, which critically affects how
immigration policy impacts counterterrorism efforts. Congress enacted INA into law in 1952 to
scrap the earlier policy adopted in 1924 and streamline security efforts (U.S. Citizenship and
Immigration Services, n.d.). However, the issues persisted and proved challenging to
counterterrorism teams, forcing Congress to initiate amendments that were implemented in 2010
under the Terrorist Expatriation Act (Daskal, 2013; U.S. Citizenship and Immigration Services,
n.d.). The adjusted part of the law added more aspects to the existing voluntary acts that could
result in the loss of nationality. In particular, the Act added to INA that a legal American national
might lose their nationality if they give foreign terrorist or terrorist organization resources or
material support (U.S. Citizenship and Immigration Services, n.d.). The Secretary of State has
the mandate to revoke their nationality if they commit such acts voluntarily. The Act also warns
members of the public against participating or purposefully and materially aiding aggression
against any nation or military forces that are directly participating in the U.S. anti-terrorism
operations. Lastly, individuals who participate in or support organizations or persons materially
or financially to initiate violence against the US risk being expatriated as terrorists.
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The FISA Court’s Role in the Global War on Terror
Congress formed the Foreign Intelligence Surveillance Court in 1978 to oversee and
authorize requests for intelligence search by the federal government, including physical
inspection, electronic surveillance, and other many types of investigations that seek to enhance
foreign intelligence. Federal security organs like the Department of Justice must seek permission
to conduct investigations through the Foreign Intelligence Surveillance Court (FISC) to get
warrants approving electronic surveillance if the need for foreign intelligence arises
(Congressional Research Service, 2021; U.S. Department of Justice, n.d.). In essence, FISC
enforces the Foreign Intelligence Surveillance Act enacted in 1978 to address issues related to
gathering intelligence from Americans and non-American agents (U.S. Department of Justice,
n.d.). Congress passed FISA after examining federal surveillance operations that involve efforts
to improve national security. FISA’s role is to enable Congress to execute the oversight
responsibility of foreign surveillance linked to judicial and congressional activities without
disclosing the operations (U.S. Department of Justice, n.d.). The secrecy of the law allows
security agents to maintain national security by monitoring threats to the U.S. and initiating a
necessary response. All foreign intelligence issues arising or that may arise from FISA-related
operations are handled through the FISA court or FISC (Congressional Research Service, 2021).
The court is a special judicial organ that processes nonpublic sessions involving warrant requests
to allow law enforcement to gather intelligence from the U.S. and non-U.S. nationals or agents.
Overall, the FISA court has been critical and dependable in the war against terrorism,
especially after 9/11. In the wake of persistent terror attacks and threats to national security, the
Patriot Act came into existence partially as an effort by congressional members to improve the
FISA to expand surveillance activities that the constitution had limited (U.S. Department of
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Justice, n.d.). For instance, the Patriot Act broadened FISA’s mandate to allow federal agencies
to seek a search warrant from the FISA court to monitor and gather intelligence from individuals
not connected directly to terrorist organizations.
The NSA Role in the Global War on Terror
The National Surveillance Agency (NSA) was among the institutions, laws, and steps the
federal government took to keep enemies afar and enhance national security. The NSA became a
functional institution in 1952 after President Harry Truman’s decree, and it operates under the
Department of Defense. The headquarter of the agency is in Fort Meade, Maryland, but it is
responsible for all cryptographic and communications surveillance. The NSA has been pivotal in
the anti-terrorism war by leading federal security agencies in cryptology by providing signals
(SIGINT) and cybersecurity intelligence (Cahall et al., 2014). The NSA programs allow the
intelligence community to operate computer networks and handheld devices to ensure that the
U.S. stays ahead of its enemies in tactics, preparedness, and security. Its unique role in the global
terror war is to protect and formulate ciphers, codes, and a variety of cryptology for facilitating
military operations and federal security agencies. NSA also intercepts, analyzes, and interprets
coded information transmitted electronically or through other methods (Cahall et al., 2014). In
general, NSA helps fight terrorism in numerous ways, including undertaking research activities
to gather intelligence about multiple, particularly emerging tactics of transmitting information
electronically. The Central Security Service (CSS) acts as the integrating center by coordinating
operations between the U.S. military and the NSA (Cahall et al., 2014). However, NSA’s
operations hit a deadlock in 1978 when Congress passed FISA, which limited NSA’s authority to
intercept foreign electronic transmissions. FISA also banned NSA from surveilling or targeting
U.S. nationals unless the agency has sufficient probable cause to indicate that the targeted citizen
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is an agent of foreign organizations or power (Congressional Research Service, 2021). The
agency was reprieved in 2008 after Congress amended FISA to relax the limitations and permit
NSA to surveil domestic information transmission without obtaining a warrant from FISC,
provided the agency has reason to believe that the targeted citizen is communicating with an
agent located in a foreign nation.
Technologies Employed in the Major Legislation
Federal security agencies have been successful in gathering intelligence and combating
terrorism because they view technology as an enabler for both terrorists and law enforcement
teams deployed in counterterrorism operations. Terrorists have improved their strategies and
devised new tools, including manipulating the internet and exploiting emerging technologies to
evade military forces (Perlroth et al., 2019). However, agencies like the FBI, NSA, and others
also continue to evolve by innovating and adopting new or advanced technologies to outwit the
terrorists. The following technologies have ensured that security forces are successful in the
global terror war.
i. AI Algorithms
Law enforcement and other intelligence teams received a major boost from artificial
intelligence (AI) technology. Intelligence agencies use AI algorithms to pinpoint and prioritize
terror suspects rapidly. With big data analytics and the need for handling massive intelligence
data, AI algorithms are trained through deep learning and machine learning to analyze social
behavior and crime rate to establish connections between individuals to know whether they are
linked to terrorists or foreign terrorist organizations (Perlroth et al., 2019; United Nations, n.d.).
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AI technology also utilizes voice and face recognition technologies, which improve the
efficiency of intelligence agencies in pursuing, arresting, and prosecuting terror suspects.
ii. Hacking tools
Hacking is the most predominant exploitative method that federal government
intelligence agencies like the FBI and NSA use to get their hands on confidential and encrypted
personal data (Perlroth et al., 2019; Zetter, 2016). In fact, public officials and federal agencies
have had a rough patch in the last few years after debates emerged that the government
deliberately hacks people’s phones and other electronic devices to retrieve personal data. The
expansion of legislation meant for fighting a global war, such as FISA and Patriot Act, expanded
mandates of law enforcement and federal intelligence agencies to include the authority to seize
and illegally crack suspected devices (Perlroth et al., 2019). The FBI and NSA have a history of
surreptitiously hacking U.S. citizens and non-U.S. nationals to detect any acts of terrorism or
supporting terrorists and terror organizations materially or offering resources.
iii. CCTV Cameras
Surveillance cameras have not lost their prominence despite the emergence of new,
advanced technologies for monitoring people and property. Law enforcement agencies invest
heavily in closed-circuit television (CCTV) cameras, whose popularity took an upward trajectory
in the 9/11 aftermath and bombings in Madrid and London. Intelligence teams widely use CCTV
in public areas because they have been modest in their effectiveness to prevent crime and help
law enforcement pursue terrorists (Eijkman, 2011). Congress and other law enforcers legitimized
the collection and storage of digitally captured visual and text information of all Americans,
which plays a crucial role in fighting terrorism. The intelligence community analyzes and applies
the data from individuals and organizations to determine their involvement in illegal activities.
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iv. Digital technologies
Digital technologies function both as enablers and tools for preventing terror activities
around the globe. Since the invention of the internet, terror groups have devised new tactics,
including using digital technologies, such as social media, video streaming, and websites, to
continue their illegal operations (Harrison, n.d.). Similarly, counterterrorism teams capitalize on
the internet capabilities to fight persons or terrorist organizations by collecting, analyzing, and
monitoring terrorist activities around the globe as depicted through digital technologies (United
Nations, n.d.). Online streaming, multimedia, online games, social media, GPS, cloud systems,
and other digital technologies enhance the effectiveness of counterterrorism operations by
providing a plethora of information and data on global terror activities.
The Role of Indefinite Detention
One of the many things that put the U.S. legislation in the spotlight is the indefinite
detention aspect that gives the federal government authority through the executive arm to hold
individuals suspected of terrorism or aiding foreign terror groups indefinitely without trial. In
2013, more than 100 of the 166 prisoners at the US-owned Guantanamo Bay detention facility in
Cuba protested their imprisonment by engaging in a hunger strike (Sweeny, 2014). The U.S.
enacted the Patriot Act after 9/11, whose reverberations were experienced in the United
Kingdom as it inspired the passage of the Anti-Terrorism, Crime, and Security Act. These laws
have provisions that allow the governments in respective countries to detain individuals
indefinitely if suspected of terrorism. In essence, the government enacted the provisions that give
the criminal justice powers to punish those who commit or are suspected of committing acts of
terrorism.
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Moreover, the government uses this part of the legislation to deter would-be terrorists
from refraining from joining terrorist organizations inside or outside the U.S. The indefinite
detention phenomenon has widespread implications on multiple aspects of individuals who find
themselves on the wrong side of the law, including terrorists, persons detained as potential
security threats, typical suspects of serious crime detained in pre-trial, and enemy combatants
(American Civil Liberties Union, n.d.; Sweeny, 2014). However, the law could affect other
groups that may not be linked to terrorism, such as undocumented migrants, mentally ill
individuals in psychiatric detention, individuals booked for deportation, and asylum-seekers. The
Patriot Act is, without a doubt, one of the many sweeping anti-terrorism laws that US legislators
passed to fight global terror on a larger scale (American Civil Liberties Union, n.d.). Indefinite
detention was vaguely enacted through a resolution of congressional members in an effort to
punish perpetrators of the 9/11 attacks, punish other terrorists, and discourage future acts of
terrorism that might undermine and threaten national security.
Unlawful Enemy Combatant
In general, the concept “unlawful combatant” describes individuals linked to or rather
members of an armed gang, and the structure and operation of the person or group are not
suficient to be recognized as a combatant. President George W. Bush used their terminology to
refer to individuals or groups that do not meet the combatant status by highlighting their impact
on global terrorism. President Bush used the global war on terror debate to define the dimensions
of counterterrorism activities. Therefore, unlawful enemy combatant covers all persons or groups
that threaten national security even if they are not civilians and do not qualify to be called
combatants (Customary IHL, n.d.). The illustration was critical to helping law enforcement
agencies determine those individuals at risk of being detained indefinitely without charges or
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trial. The US Air Force Pamphlet (1976) highlights these key aspects of the definition, including
all other elements mentioned in the Geneva Convention III (1949) in Articles 4A(1), (2), and (3)
(Customary IHL, n.d.). Similarly, the US Manual for Military Commissions (2007) describes an
unlawful enemy combatant as an individual involved in acts of violence or who purposefully and
materially aids attacks against the US or adversaries not considered lawful enemy combatants,
such as al Qaeda and Taliban.
Constitutional aspects of the Legislation
The US Patriot Act has numerous constitutionality and ethical issues, but several aspects
interlock perfectly with the constitution. For instance, law enforcement officers have the
authority to punish terrorists and terror suspects, but they cannot proceed with intelligence
activities without following the judicial process. The provisions of the Act require federal
security agents to obtain court orders before accessing private property and confidential data to
conduct a search for intelligence data. In addition, federal agents must have probable cause for
their actions and must prove before the FISA court beyond a reasonable doubt before being
granted access to confidential spaces for inspection and investigation (U.S. Department of
Justice, n.d.). For example, FBI agents must demonstrate that they have reasonable grounds to
believe that whatever information or records they are pursuing is appropriate to aid
investigations to collect foreign intelligence on a US national or prevent international terrorism
acts targeting the US or thwart clandestine actions.
Titles I and III of FISA create a legal framework for circumventing constitutional issues
that may arise from unwarranted or legal searches and electronic surveillance. The USA
FREEDOM Act hopes to create coexistence among parties by inviting parties or seven
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authorized persons to act as amici curiae in the FISA court and the Foreign Intelligence
Surveillance Court of Review (FISCR). Various aspects of the Patriot Act may include sections
312, 314, 326, 352, and many others (U.S. Department of Justice, n.d.). For instance, sections
314 and 312 are consistent with the Bank Secrecy Act (1970) that Congress passed, demanding
the responsibility of the banks to report financial transactions exceeding a certain limit (U.S.
Department of Justice, n.d.). Considering money laundering as a special form of tax evasion, the
Patriot Act is an extension of the 16th Amendment that requires individuals and organizations to
remit taxes, and the Internal Revenue Code’s Section 7201 defines the dimensions of financial
transactions likely to amount to tax evasion and appropriate penalties.
Aspects of the Legislation that raise Constitutional concerns
The USA Patriot Act presents a series of constitutionality concerns that continue to
frustrate the war on terror efforts. Section 215 of the Act is one of the many areas that trigger
legal tussles between counterterrorism actors and protectors of the constitution (Office of the
Director of National Intelligence, n.d.). For instance, the Fourth Amendment violation comes
into question due to the unchecked power of various federal security and intelligence agencies
like the FBI, CIA, and NSA. The amendment prohibits the government from searching without a
court warrant and requires them to prove probable cause. Free speech as a vital aspect of the
amendment is trumped in the process of implementing the Act’s provisions (United Nations
Office on Drugs and Crime, 2018). For example, individuals inspected or investigated by the FBI
are denied the right to share the information or incident with others. In addition, the Act
unconstitutionally changes the Federal Rules of Criminal Procedure that permits the government
to proceed with investigations without making individuals aware, at least not until the search is
over.
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Moreover, the legislation provides for more secret searches that infringe on people’s
rights as provided for in the Fourth Amendment. The Act supports the abuse of the “knock and
announce” principle that the constitution emphasizes. Owners cannot defend their rights or seek
court assistance for loss incurred from the secret and unsupervised search on their property. The
FISA law raises additional constitutionality concerns by expanding the Patriot Act, including the
exception of demonstrating probable cause in some situations, such as using wiretaps or searches
for obtaining foreign intelligence (U.S. Department of Justice, n.d.). Additionally, the legislation
expands the pen register exception to invalidate nationwide pen register warrants and internet
searches. Previously, the law prohibited certain searches termed “pen register,” especially those
related to wiretapping surveillance.
The Legislation’s impact on American Civil Liberties
Counterterrorism legislation violates various civil liberties protected under the US
constitution’s Bill of Rights. The FISA and Patriot laws face controversy because they
contravene the First, Fourth, Fifth, Seventh, and Eighth aspects of the Bill of Rights (U.S.
Department of Justice, n.d.). For instance, the legislation takes away civil liberties guaranteed
under the First Amendment, which entitles civilians to free speech, press, assembly, and
petitioning the government to reimburse for losses inflected during acts, such as conducting a
search on private property. The FBI and other federal agencies implement the legislation
secretly, leading to the violation of the First Amendment. For example, the Patriot Act prohibits
those served with search orders from disclosing their contents or informing others about the
warrant, even in situations that do not require secrecy. In addition, the FBI could start
investigating those who exercise their freedom of speech, which goes against the First
Amendment. The failure to issue notice to recipients before a search is conducted infringes on
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the Fourth Amendment, which guarantees people the right to privacy (United Nations Office on
Drugs and Crime, 2018). The law compromises their civil liberty when the FBI fails to notify
them even after completing the exercise. The violation extends to the Fifth Amendment, which
requires defendants or individuals suspected of a crime to be served a notice before a search or
arrest (Cornell Law School, n.d.). A person enjoys several civil liberties under the Fifth
Amendment, including protection from double jeopardy, a grand jury hearing, and due process of
the law, among others (Cornell Law School, n.d.). In other words, the lack of proper notification
to recipients or individuals suspected of a crime is in violation of the due process element of the
Fifth Amendment.
Arguments for the Legislation
The ‘war on terror’ legislations are supported and opposed in equal measure. The Patriot
Act and FISA are among the many controversial laws that many have demanded their immediate
termination, particularly due to issues arising from violating the constitution. In general,
proponents think the laws are good and beneficial to the country, especially today, because
terrorist groups have more efficient weapons and new tactics. The first argument is that the
legislation creates the much-needed statutory framework for federal agencies like the FBI, NSA,
and CIA to get authorization to collect foreign intelligence in different forms. Earlier forms of
FISA, Secrecy Act, and others had multiple gaps and limitations that slowed counterterrorism
efforts. Some of the laws like FISA earlier on prohibited the FBI from gathering foreign
intelligence, including physical searches, pen registers, trap and trace devices, and electronic
records (U.S. Department of Justice, n.d.). Federal security agencies found it problematic to
exercise their duties under the Patriot Act after it was passed because of these limitations erected
Running head: Research Paper 23
by FISA. However, recent amendments to the law created productive avenues to permit agencies
to conduct a comprehensive and profound collection of foreign intelligence.
Supporters of the legislation also argue that certain aspects of the constitution could be
relaxed provided the action is intended to bolster national security to keep everyone safe. Large
organizations, including some multinational corporations (MNCs), may engage in money
laundering activities whose proceeds are used to facilitate the US enemy or give resources to
those with plans to attack the US or its allies. As such, many people support FISA, Patriot Act,
FISA court, and other laws that facilitate government agencies to protect all US civilians. The
FISA court ensures that these agencies are authorized to verify that businesses are not engaging
in transactions meant to aid terrorist organizations by accessing business records (U.S.
Department of Justice, n.d.). Besides, the court provides neutral arbitration for agencies and the
public to ensure they have a common ground.
Lastly, supporters claim that amendments to the laws have helped rectify the challenges
that existed in the earlier versions of the legislation. Approximately a decade after the Patriot Act
was enacted, President Obama bowed to pressure by executing an executive mandate intended to
terminate the detention center in Guantanamo Bay, Cuba (Paulussen, 2012). However, the move
came after several amendments to the main legislation. For instance, the Terrorist Expatriation
Act of 2008 sought to iron out legal issues that undermined the implementation of the
immigration policy and legislation, such as the Immigration Nationality Act. The amendments to
the AUMF and new changes like the Homeland Security Act helped address issues related to the
use of military force and other powers when handling perpetrators of terrorist attacks.
Running head: Research Paper 24
Opposition arguments
The arguments against the legislation passed to facilitate and bolster the war on terror
keep increasing two decades after the US government officially waged war on all acts of
terrorism. Many Americans blast the government for contradicting civil liberties in the process of
protecting national borders, civilians, and critical infrastructures. Specifically, human rights
entities, individuals, and other interested parties accuse the government of enacting laws that
violate several amendments, thus taking away essential liberties, such as free speech, privacy,
and others. FISA, the FISA court, and the Patriot Act give the FBI, NSA, CIA, and other
intelligence agencies superfluous authority, which goes against the constitutional mandate (de
Zayas, 2005). For instance, FISA expands the limits of foreign intelligence to allow the FBI to
hack personal communications devices, use wiretaps to listen to or monitor conversations, and
breach confidentiality rules to access business records (U.S. Department of Justice, n.d.). In other
words, many people argue that the government’s commitment and effort to defeat terrorism
occurs at the expense of people’s freedom and privileges.
Recommendations for changing or amending the Legislation
One area of the legislation that should be amended is the indefinite detention without
charges or trial. The Fifth Amendment compels criminal justice elements to ensure that all
suspects are given access to an attorney and charged through a fair, due judicial process. Secret
detention centers like the prison in Guantanamo Bay in Cuba should only hold detainees
imprisoned for life or other severe punishments after undergoing the due judicial process.
Secondly, the legislation should be amended to address the secrecy aspect that many people view
as unnecessary and likely to cause suspicion. Federal agencies like the FBI and NSA are
Running head: Research Paper 25
legitimate institutions established legally to address threats against the US (de Zayas, 2005).
Therefore, they should devise avenues to achieve the desired levels of intelligence without
keeping US nationals in the dark concerning their operations. The “knock and announce” rule
should be applied when FBI agencies deliver search warrants or come to search private property
(American Civil Liberties Union, n.d.). Lastly, hacking into personal devices like smartphones,
laptops, or internet social media accounts should be amended to compel intelligence and security
agencies to seek approval from ordinary courts (Zetter, 2016). The FISA court seems biased, and
could be some instances where warrants and authorizations may be automatic, leaving civilians
helpless and their rights violated.
Central themes and arguments in current literature
Various themes and arguments are prevalent in current literature and focus on the
implementation of the legislation. Constitutionality of the legislation is the most predominant
theme and argument in the literature that started even before the laws enacted after 9/11. For
instance, FISA was passed decades earlier but suffered various limitations that required
additional amendments to facilitate the efficient collection of intelligence (U.S. Department of
Justice, n.d.). Current studies focus on expanding the discussion by emphasizing the harmful
effects of the legislation and how its implementation violates crucial elements of the Bill of
Rights. Many recent studies also discuss issues related to privacy, security, freedom or liberty,
and the power of federal agencies charged with collecting intelligence (United Nations Office on
Drugs and Crime, 2018). Criminal justice and legal articles explore vital topics like terrorism,
justice, foreign intelligence, and undocumented immigrants. Most of these issues enhance or
hinder the application of laws that Congress put in place to give impetus to security agencies and
Running head: Research Paper 26
intelligence community members. Thus, current studies try to provide solutions or show the
magnitude of the issue and its impact on the war on global terrorism.
Gaps in the Current Literature
Many studies criticize the terrorism legislation, especially its impact on various aspects of
the constitution. However, a gap exists in the literature about the solution to these problems and
ways that federal agencies could use to attain similar goals. Opponents of the legislation want the
laws to be scrapped, particularly the Patriot Act and FISA, for Americans to enjoy their civil
liberties (de Zayas, 2005). Yet, the same authors emphasize the need for law enforcement to
protect national borders, people, and property in the US, which creates another critical dilemma
of eating the cake and having it. Another major gap that could inspire research in the future is the
incompetence of the advising authority. The word “incompetence” is used in this statement to
mean the inability of institutions that act as watchdogs and those charged with advising the
executive and legislature. For instance, the Office of the Attorney General is considered the
gatekeeper of criminal justice policing and the integrating center for the legislature, executive,
and law enforcement. The attorney general must critically evaluate bills and advise legislating
bodies accordingly to ensure that issues related to unconstitutionality do not arise in the future. In
other words, studies in the future should focus on examining why Congress enacts faulty laws
and suggest ways of ensuring future legislation coincides with constitutional provisions.
Biblical Worldview
Laws form a crucial part of society and help authorities maintain social order, prevent
crime, and protect members of the community. Legislation is basically the foundation of the
bible, from the rules and instructions that God laid down to guide Adam and his generation on
Running head: Research Paper 27
how to live in the garden of Eden. God spoke about the commandments given to the world
through Moses by stating that “These commandments that I give you today are to be on your
hearts. Impress them on your children” (Deuteronomy 6:6-7). The commandments are a classical
case of laws governments enact to control the public, instill discipline, and prevent crime. In
addition, the scripture points out the stalemate facing the legislation due to the conflict with the
constitution. The text asks, “I have the right to do everything, you say – but not everything is
beneficial. I have the right to do anything – but not everything is constructive” (1 Corinthians
10:23). The context of this verse fits the role of civil liberties provided under the Bill of Rights.
Many people claim that the legislation violates their privacy, free speech, freedom to assembly,
and many others, which come in the process of guaranteeing security. Thus, the dilemma
emerges due to the legal and military tactics of collecting intelligence and responding to acts of
terrorism.
Conclusion
The resources covered in the literature section recognize that whereas the
counterterrorism legislation remains pivotal to the war against terror, the Patriot Act, FISA,
NDAA, and other crucial elements covered in this article constitute controversial aspects. FISA
amendment came almost a decade after the Patriot Act to give more authority and room to gather
more foreign intelligence, especially in areas limited previously. One of the important
discoveries analyzed in the literature review is the expansion of the authority of the FBI and
federal security agencies, for example, by exempting the agencies from the court order
requirement. The legislation gives the executive powers to order electronic surveillance to collect
foreign intelligence data from a few months to a year. The president does not need to get
permission through a FISC court, which highlights this area as one of the many controversies of
Running head: Research Paper 28
the legislation. Authors also note that the legislation suffers from criticism due to
constitutionality challenges. Some provisions violate the first to eight amendments by attempting
to give more powers to investigating agencies. However, the laws have enormously helped the
military and non-military strategies to reduce terrorism threats in the US and overseas. The US
managed to push many terror groups into hiding by eliminating some and convicting many of the
members. The accomplishments have come at the expense of many civil liberties because
Americans have been compelled to sign off their rights to pave the way for counterterrorism
efforts. The legislating authorities should iron out these limitations to create a level ground for
fighting terrorism and enjoying civil liberties. Lastly, the Office of the Attorney General should
adopt a comprehensive consultative approach to ensure that Congress does not pass fault
legislation that might fail in the future.
Running head: Research Paper 29
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Running head: Research Paper 30
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Running head: Research Paper 31
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