FREEDOM DURING TIMES OF WAR: SECURITY, NOT AT THE EXPENSE OF SECURED LIBERTIES

Timothy N. Baldwin

(This was Tim Baldwin's graduation dissertation at the
Cumberland School of Law, Birmingham, AL.)

 

 

U.S. Constitutional rights were designed to transcend generations with the purpose that the "posterity" of America would enjoy the security of freedom, not simply security alone.[1] Thus, the true test of whether America will respect and protect the freedom of secured liberties is not to be found during times of peace and tranquility, but rather during times of war and uncertainty.[2] In a post-September-11th-world, America is taking such a test.

Since the inception of this country, the United States of America has had threats against its security and independence. During such times, those in control of enacted policies have had the duty to protect the liberties guaranteed by the U.S. Constitution, while balancing those liberties with national security and defense. For both the citizens and the government, security is always on the mind of every person in every country, and has always been.

This country has seen the government attempts to secure itself against supposed threats, specifically during times of war, because that is when people feel the most vulnerable and exposed to those who would want to attack the United States. History has shown us that the natural reaction to threatening situations is for the government to take more power to protect against "would-be" threats: this is the dangerous inclination of human nature in attempts to feel secure, whether or not there is an actual threat.

However, the United States Constitution sets forth principles underlying the basic structure of a free country during times of peace and war, whereby the government has the power to deter and punish crime, while respecting individual rights and refraining from infringing those rights. More specifically, the Bill of Rights sets forth the protections that the government must not violate for a free country to operate as such.[3]

For the first time since the bombing at Pearl Harbor, America was threatened on September 11, 2001, when two jets were flown into the twin towers of the World Trade Center in New York City, and national security became a serious concern in American politics as a result. It was only within a time span of a little more than a month from the time that America felt threatened that the United States Congress rushed the Patriot Act into law-the proposed goal of which was to make America more secure. Representative Ron Paul (Tex.-Rep.) expressed the reactionary nature in which the Patriot was passed. Representative Paul stated that the Act was not thoroughly read and reviewed by Members of Congress and the Senate before it was voted on.[4] Senator Russell Feingold expressed the same: "there was 'relentless pressure to pass the Act and authorize 'sweeping new power for law enforcement that directly affect the civil liberties of the American people without due deliberation by the peoples' elected representatives.'"[5] The Patriot Act was passed without forethought to the Constitutional consequences and implications for future generations.

While we can agree that America has a strong interest in national defense, it can also be said that Constitutional rights are not to be ignored for the sake of good intentions-even if it is in the name of national security.[6] Legislation must be looked at not only for its end, but also for its means. If such legislation ignores and violates long-standing, fundamental principles of secured liberty and it is left in place, then America has failed the test.

EXAMPLES OF GOVERNMENT INTRUSION DURING WAR

CIVIL WAR

History warns America of the cautious approach the government needs to take in times of war when enacting legislation, to ensure that liberties are not reduced to mere words on a historical document.[7] A prime example is when Lincoln was President during the Civil War and suspended the writ of habeas corpus--the right guaranteed by the Constitution that allows someone who is being held by the government to appeal being held because due process was not given.[8]

President Lincoln violated the Constitution not solely because the writ was suspended, but because the Constitution permits only the U.S. Congress to suspend the writ during times of war to protect the safety of the public. Obviously the United States at that time was in much more upheaval and chaos than we are today, and still, Justice Taney (the United States Supreme Court Justice) spoke out in his opinion in Ex Parte Milligan that the President was acting unconstitutionally, notwithstanding a war between the states.[9] The focus of Taney's opinion was that the Constitution be followed, even in times of war. Despite Taney's order, President Lincoln ignored the Constitution and Judge Taney's order, and many people were denied their Constitutional right to the writ of habeas corpus.[10]

WORLD WAR I

Another example of when times of war have caused the government's tendency to ignore Constitutional principles was during the time of World War I. During this time, many people protesting the war effort in Europe were imprisoned for their speech. Debs v. U.S. shows how easily Constitutional rights can be set aside for the sake of expediency for the government.[11] In Debs, Justice Holmes expressed how the government wants to relax the Constitution during times of war (something that America had previously seen). Holmes says that Constitutional norms may be relaxed "when a nation is at war."[12] However, it is clear to see now how these people's Constitutional liberties were denied, in light of cases like Brandenburg v. Ohio.[13] Brandenburg stood for the notion that liberties must be protected even during times of war and that the freedom of speech should be protected unless there is an actual imminent threat of harm.[14] Brandenburg demonstrated the sanctity of Constitutional liberties by demonstrating that it wasn't the possibility of harm or the threat of harm that justified taking away guaranteed liberties.

WORLD WAR II

Perhaps one example that is most pertinent to the current atmosphere of today is that of World War II when in 1944 hundreds of Japanese-Americans were forced to relocate on government demand. In response to the bombing at Pearl Harbor, the United States government had a heightened sense of skepticism towards any persons of Japanese descent, believing that it is better to ignore freedom and to secure the nation by sending them to, what Justice Roberts termed as, "concentration camps."[15]

Despite what was probably overwhelming support to these actions by the government, looking through the lenses of hindsight, it is clear to see how blatantly unconstitutional these actions were.[16] Yet it is important to note that the historical landscape at that time was somewhat similar to today: America was attacked on America's soil, and patriotism was at an all time high.

Revealed by Congress' knee-jerk response to 9/11 and the fact that "no member of Congress was allowed to read the first Patriot Act that was passed by the House on October 27, 2001," this legislation has serious Constitutional questions and implications.[17]

In the specific area of the Fourth Amendment, the Patriot Act vastly broadens what have been accepted as Constitutionally acceptable procedures for search and seizures. Particularly, for purposes of this paper, section 802 and section 213 of the Patriot Act amended and broadened the ability of the government to "sneak-and-peek" into U.S. citizens' homes without notice, for an unspecified amount of time, while the owner of the home would have no notification that his home had been searched, for purposes of criminal investigation.[18]

HISTORY OF FOURTH AMENDMENT

The United States of America was founded upon the principle of secured liberty. The founding fathers envisioned a government that was designed not to grant rights, but rather it was designed to protect certain "inalienable rights" "endowed by our creator," and that if the government became destructive to these ends (of life, liberty and the pursuit of happiness), "it was the right of the people to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."[19] Effectuating this vision, the founding fathers created the United States Constitution to "secure the blessings of liberty to ourselves and our posterity."[20]

One of the "inalienable rights" was the right of privacy, more specifically, the right for one to be left alone in his home as expressed in the Fourth Amendment.[21] Rooted in English common law, English citizens' privacy was protected against government intrusion; specifically, the government was not able to enter into one's home and intrude onto his or her property without certain requirements being satisfied.

Illustrating this principle is a landmark case, Entick v. Carrington, decided in England before the formation of the United States.[22] Here, the agents of the king of England "had forcibly broken into his house, broken into locked desks and boxes, and seized many printed charts, pamphlets and the like."[23] In this decision, the Court ruled that the government's actions violated the rights of the citizens and established that a person's home could not be invaded unless the government has shown "probable cause" and there is record of what had been seized.[24]

The founding fathers reflected this common law principle of privacy in the Fourth Amendment. The Fourth Amendment states, "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."[25]

It is not surprising that the Fourth Amendment's language was incorporated into the Bill of Rights, as it was largely in "reaction to the general warrants and warrantless searches that had so alienated the colonists and had helped speed the movement for independence."[26] As a result, the Fourth Amendment protected people's privacy by mandating that police agents may only receive a warrant upon showing probable cause and must get "advance judicial approval of searches and seizures through a warrant procedure."[27]

FOURTH AMENDMENT PROTECTS PRIVACY

As the courts in America were interpreting the Fourth Amendment, it became clearer that the Fourth Amendment was more than a protection against a trespass of one's property; rather it was a protection against the trespass of a person's privacy in recognition of one's "right to be left alone", especially for purposes criminal investigation.[28] As technology became more advanced and wiretaps were being used against individuals for criminal investigation, courts had to address whether or not the Fourth Amendment was designed to protect more than just physical trespass against one's property and whether it would protect against invasions of one's personal privacy, such as private conversations in one's home.[29] As Fourth Amendment jurisprudence developed, it became accepted as "reasonable" that the Fourth Amendment was designed to protect people not only from unreasonable searches for criminal investigation purposes, but also from unreasonable searches in violation of one's "right to be left alone."[30]

One of the landmark cases in this area of jurisprudence, concerning and further defining the Fourth Amendment is Katz v. U.S.[31] There the U.S. Supreme Court recognized that privacy, not just property was protected under the Fourth Amendment. Thus, when a person entered into a telephone booth for a telephone conversation, the person "sought to exclude when he entered the booth was not the intruding eye-it was the uninvited ear."[32] "He did not shed his right to do so simply because he made his calls from a place where he might be seen."[33]

The principle of personal privacy was also stated in the same year as Katz in Warden v. Hayden: ''The premise that property interests control the right of the Government to search and seize has been discredited . . . We have recognized that the principal object of the Fourth Amendment is the protection of privacy rather than property, and have increasingly discarded fictional and procedural barriers rested on property concepts.''[34]

PRIVACY: PERSONAL EXPECTATIONS AND SOCIAL ACCEPTANCE

As stated in Katz and Hayden, the question of privacy depends not upon the property interest, but rather the emphasis is the importance of the expectancy of privacy: ''What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be Constitutionally protected."[35] Thus, the "capacity to claim the protection of the Amendment depends not upon a property right in the invaded place but upon whether the area was one in which there was reasonable expectation of freedom from governmental intrusion.''[36]

Balancing the need for personal privacy and governmental interest in pursuing crime, the court in Rakas v. Illinois explained that the "reasonable expectancy" of privacy (announced in Katz) is one where "society is prepared to recognize as reasonable."[37] "The expectation of privacy sought to be protected by the Fourth Amendment must have its source outside of that Amendment, either by reference to the concept of real or personal property law or to understandings that are recognized and permitted by society."[38] That is to say, the Fourth Amendment protects the subjective expectation of personal privacy, balanced with what society considers to be a reasonable expectation.[39] Thus, what is "reasonable expectancy" of privacy is a two-tiered approach: 1) whether the individual, by his conduct, has "exhibited an actual (subjective) expectation of privacy" and 2) whether the individual's subjective expectancy of privacy is "one that society is prepared to recognize as 'reasonable'."[40] Following from those premises, "as the intrusions grow more extensive and significantly jeopardize the sense of security of the individual, greater restraint of police officers through the warrant requirement may be deemed necessary."[41]

"HOME" IS AN ACCEPTED PLACE OF PRIVACY

If there is one place that society would find a "reasonable expectancy" of privacy, it is the home. "At the risk of belaboring the obvious, private residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectancy is plainly one that society is prepared to recognize as justifiable&Searches and seizures inside a home without a warrant are presumptively unreasonable absent exigent circumstances."[42]

This idea dates back in the earliest American history. William Pitt made a memorable speech capturing the sanctity of the home and the restraint upon the government in intruding into one's home:

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail-its roof may shake-the wind may blow through it-the storm may enter-the rain may enter-but the King of England cannot enter-all his force dares not cross the threshold of the ruined tenement.[43] "Mindful of the abuses English citizens had at earlier times received at the hand of their government,"[44] the Fourth Amendment was undoubtedly designed to protect a man's "castle"[45] and it applied to "all invasions on the part of government and its employees of the sanctity of a man's home and the privacies of life."[46]

 

REASONABLE SEARCH: NOTIFICATION TO OCCUPANTS OF HOME

It is obvious, however, that the Constitution allows the government to search one's home as long as the search is reasonable, with probable cause and with a warrant because the government is charged with the responsibility of promoting the general welfare and enforcing the criminal laws.[47] These two competing principles, privacy and protection, are the "tension in our society between the need for more effective police work to combat the rising tide of crime and our constitutional aversion to a police state."[48]

This tension can pull society's views of "what is a reasonable search." This balance of liberties and governmental function is what the founding fathers called "self-government." Since the Constitution was not a rigid set of rules, the Bill of Rights were framed to "keep the police within our control" and yet maintain "order and security" without it being "unnecessarily harder" than it should be to protect the citizens.[49]

Traditionally in America, the Fourth Amendment protected citizens against entry into the home unless certain circumstances were present. These circumstances were 1) the police were making an arrest, 2) there was a valid warrant issued by a judge, and 3) the police are in "hot pursuit" of the suspect.[50] With warrants to enter one's home, America's common law requires that the government give notice to the person occupying the home. [51]

Since western society has always placed a very high value on the privacy of one's home, before the "officer of the Crown could break into a home in order to make an arrest 'he ought to signify the cause of his coming, and to make request to open the doors'."[52] This idea has been incorporated into American jurisprudence, as courts have held on Constitutional grounds that the government may not enter a home without "due notice."[53]

Eventually, the issue arose of whether or not the Fourth Amendment mandated the need to give notice to those within a home so as to satisfy the "reasonableness" of the entry of the home. Thus, in Wilson v. Arkansas, the United States Supreme Court decided this issue by looking at the "traditional protections against unreasonable searches and seizures afforded by the common law at the time of the framing."[54] There the court recognized the need for the government to give notice to those within the home. It said:

(1) It reduces the potential for violence to both the police officers and the occupants of the house into which entry is sought; (2) it guards against the needless destruction of private property; and (3) it symbolizes the respect for individual privacy summarized in the adage that "a man's house is his castle."[55]

 

Although the court skirted around saying that violations against the common law would be deemed a violation of the Fourth Amendment, the court recognized the importance of traditional views of privacy in one's home-a major factor in deciding the "reasonableness" of any search conducted in a citizen's home.-and consequently developed the "knock-and-announce" rule, which required the police to make known to the occupants of the home that the police were there to search the home or make an arrest pursuant to a warrant.[56]

FOREIGN INTELLIGENCE SECURITY ACT: AN EXCEPTION TO REASONABLE SEARCHES

 

While it has become strongly settled that police must knock-and-announce their entry into a home with a warrant in cases involving domestic criminal cases, American jurisprudence has recognized a distinction between searching for domestic criminal investigation and foreign intelligence security.[57] In United States v. U.S. District Court, the United States Supreme Court recognized the difference between the two: "Given these potential distinctions between Title III criminal surveillances and those involving the domestic security, Congress may wish to consider protective standards for the latter (foreign intelligence security) which differ from those already prescribed for specified crimes in Title III."[58]

Different standards may be compatible with the Fourth Amendment if they are "reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens."[59] Six years after U.S. v. U.S. District Court, in 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA), which established a separate legal regime for "foreign intelligence" surveillance.[60] Although FISA did not permit the physical entry of a home/building (and only included eavesdropping and wiretaps), Congress amended FISA in 1994 to include physical entries "in connection with 'security' investigations."[61]

In FISA, Congress lowered the standards to conduct surveillance investigations when it involved foreign agents and crimes involving national security. Juxtaposed to the Fourth Amendment requirement, i.e. that probable cause exist that a particular person has committed a crime, FISA allowed surveillance "based on a finding of probable cause that the surveillance target is a foreign power or an agent of a foreign power, irrespective of whether the target is suspected of engaging in criminal activity."[62] Furthermore, foreign intelligence had to be "the purpose" for the surveillance.[63]

Under this new standard of foreign intelligence searches, the government was theoretically able enter one's home pursuant to the "sneak-and-peek" provision, exempting the traditional knock-and-announce rule, although the extent of this ability was not settled.[64] Essentially, FISA allowed the government to authorize sneak-and-peek warrants in cases involving "foreign powers and their agents" suspected of terrorism and other serious threats to security.[65]

The sneak-and-peek provision of FISA allows the FBI to enter the sanctity of one's home without giving that person notice for a certain period time (under certain conditions).[66] Though these searches invaded the province of one's "expectation of privacy," the language of FISA limited the searches to foreign agents and there had to be probable cause that they were involved with espionage-type activity.[67]

Not only did the language in FISA attempt to preserve the secured liberties in the Fourth Amendment by limiting the searches to foreign agents and to acts involving serious threats of national security, but also the courts recognized the need to subdue government searches of one's home. In their attempts to maintain the balance of secured individual rights guaranteed by the Constitution and the government's interest of pursuing terrorism, courts in the past have limited the sneak-and-peek search to situations where "notification would endanger the life or physical safety of an individual; result in flight from prosecution, destruction of evidence or intimidation of witnesses; or otherwise seriously impair the investigation or delay trial."[68]

Furthermore, when cases have involved "physical searches, the courts have allowed delayed notice to the occupants only in very limited contexts.where there is serious danger to life or evidence, and only with respect to serious crimes, and only on a case-by-case basis."[69] While, at first glance, the statutory provisions may seem to have violated what society has "accepted as reasonable" for the past 40 years, FISA actually considered the reasonableness standards of the Fourth Amendment, and courts have limited the situation where a sneak-and-peek search may be conducted. Also, the Federal Rules of Criminal Procedure have strengthened the courts rulings that a delayed-notice search may be conducted only under exigent circumstances.[70]

However, the situations above addressed activities involving foreign powers and their agents, and not U.S. citizens. The question must be turned to, what did FISA do to protect U.S. citizens in light of Fourth Amendment concerns. FISA has a provision that states: "if the target is a 'U.S. person,' there must be probable cause to believe that the U.S. person's activities may involve espionage or other similar conduct in violation of the criminal statutes of the United States."[71] Thus, FISA did not allow searches of U.S. citizens when the crimes involved "ordinary crimes" and not crimes of "terrorism."[72]

PATRIOT ACT: NEW PROVISIONS AND REDEFINITIONS SUBJECT U.S. CITIZENS' HOMES TO UNREASONABLE SEARCHES AND SEIZURES

 

While FISA arguably attempted to secure the liberties of the citizens of the United States by focusing the searches to foreign agents and acts of espionage, the Patriot Act broadens the definition of "terrorism" and leaves the United States citizens open for unreasonable searches and seizures, exposing their "expectations of privacy" to governmental intrusion and criminal investigation. As noted above, courts have made a distinction between "ordinary crimes" and crimes involving espionage and terrorism for a "foreign power," thus limiting searches into one's home in limited circumstances.

Under FISA, the government could only conduct the searches allowed under the act when the crimes involved "foreign intelligence crimes" and when the person involved in such crime is a "foreign power" or an agent thereof.[73] The importance of these definitions is critical in analyzing whether or not a search is reasonable to society in protecting the secured liberties of privacy in the Fourth Amendment.

The most pertinent definitions for the purposes of protecting the Fourth Amendment liberties are the provisions applicable to U.S. citizens.[74] Congress amended FISA when they passed the Patriot Act in response to the September 11^th attack on the United States and broadened not only the scope of the government's ability to search and investigate foreign intelligence crimes and terrorism, but also the definitions of what terrorism is.[75] Again, if it has been concluded that searches are reasonable when they do not search U.S. citizens and when "the purpose" is for foreign intelligence investigation (not for criminal prosecution) the critical issue becomes, what is "terrorism" according to the Patriot Act? Section 802 of the Patriot Act defines "domestic terrorism" as activities that:

(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;

(B) appear to be intended--

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion;[76]

 

These provisions of the Patriot Act broaden the definition of "terrorism" to include U.S. citizens who commit any of these broad and vague acts, not limited to crimes involving traditional notions of terrorism. The result of this definition broadening threatens the secured liberties by subjecting U.S. citizens' homes to relaxed procedural safeguards, contrary to the recognized and accepted procedures since the inception of this country.

Since this statute has not been in place for very long, the courts have not had many opportunities to address the Constitutional issues of these new definitions and new provisions of FISA and how they will apply practically to U.S. citizens.[77] However, using strict statutory construction, a U.S. citizen will be subject to unreasonable searches if any U.S. citizen's acts involve "danger to human life." One could come up with endless possibilities where traditional ideas of "ordinary crimes" would fall into this provision. Moreover, any activities that "appear" to be intended to "influence the policy of a government by intimidation or coercion" also fall into the jurisdiction of this statute.[78] At first glance, this could very likely include political speech unwelcomed by the powers that be.[79]

Before dismissing such statutory constructions, one must consider historical applications of similar situations. Illustrative of how such provisions can be used against U.S. citizens contrary to the written purpose of the statute, it is now public knowledge that the FBI has admitted to conducting a massive search against millions of U.S. citizens during the McCarthy period, including Martin Luther King. Even with stricter procedural safeguards and more narrowly defined definitions of "terrorism" in FISA, the government was able to get millions of warrants from a "disinterested" judge (as is required for searches to be considered reasonable under the Fourth Amendment) to conduct searches of U.S. citizens.[80]

Assuming that these new definitions have a broadening practical impact on the implementation of searches and seizures, the next questions turns to, to what extent can the government violate U.S. citizens' "reasonable expectations of privacy?" To better understand the scope of such impact, it is also important to analyze "the purpose" aspect of FISA searches and how the Patriot Act changes such provision.

In FISA, there is the "primary purpose" limitation on the government's search. Under such provision, the government could not search unless its "primary purpose" was for foreign intelligence information. However, under section 218, the Patriot Act states that foreign intelligence only need be a "significant purpose" of the government's search.[81] The issue can be put in another way: even if the definition of terrorism is broadened, should not the "significant purpose" limitation on the government to search U.S. citizens keep the government from using such searches as means to collect evidence to prosecute U.S. citizens?

Common sense makes it obvious that if the government discovers terrorism or conspiracies of such terrorism it will use such information to prosecute the individuals because prosecuting is another tool the government can use to deter and desist terrorism.[82] In In re Sealed Case, the foreign intelligence court recognized that the government can and does in fact use information gathered for "the purpose" of "foreign intelligence" in criminal investigations and prosecution:

The government might wish to surveil the agent [of foreign powers] for some period of time to discover other participant in a conspiracy or to uncover a foreign power's plans, but typically at some point the government would wish to apprehend the agent and it might be that only a prosecution would provide sufficient incentives for the agent to cooperate with the government. Indeed, the threat of prosecution might be sufficient to "turn the agent."[83]

 

As further noted in the House Report of FISA, Congress recognized that the government can use criminal trials to protect against terrorism: "Obviously, use of 'foreign intelligence information as evidence in a criminal trial is one way the Government can lawfully protect against clandestine intelligence activities, sabotage, and international terrorism."[84] Thus, "the purpose" limitation on the government's searches is not in reality limiting the government to only gathering foreign intelligence information, but allows them to use such information for purposes of criminal prosecution.

The court in In re Sealed Case went on to address whether U.S. citizens can be subject to searches when such searches can be used against them in a criminal prosecution. The court stated, "U.S. persons may be authorized targets, and the surveillance is part of an investigative process often designed to protect against the commission of serious crimes such as espionage, sabotage, assassination, kidnapping, and terrorist acts committed by or on behalf of foreign power."[85] This language would suggest that U.S. persons' are still protected by the Fourth Amendment protection of unreasonable searches and seizures because the searches for prosecution still must be connected not only to "serious crimes" but also to a "foreign power," shielding citizens from searches of "ordinary crimes." Thus, all other searches for "ordinary crime" prosecution would be protected by the Fourth Amendment.[86]

However, with the Patriot Act amending FISA, "terrorism" no longer includes only serious crimes connected to foreign powers, but includes "domestic terrorism" activities that have no connection to foreign powers and are not "serious crimes."[87] All that is needed, it seems, is that there be some activity that "appears" to be "intended" "to intimidate or coerce a civilian population," or "to influence the policy of a government by intimidation or coercion."[88] Furthermore, the primary purpose of the search no longer needs to be for gathering foreign intelligence information, but only needs to be a "significant purpose."[89] As the court noted in In re Sealed Case, this means that "the primary purpose" of the search can be for prosecution. The court states,

Given our experience in FISA surveillances and searches, we find that these provisions&particularly those which authorize criminal prosecutors to advise FBI intelligence officials on the initiation&are designed to enhance the acquisition, retention and dissemination of evidence for law enforcement purposes, instead of being consistent with the need of the United States to "obtain, produce, and disseminate foreign intelligence information.[90]

 

The Patriot Act essentially allows the government to search U.S. citizens when it involves "domestic terrorism" (which has not been further defined in case law) for purposes of criminal investigation. As a result, the government may search U.S. citizens' home under FISA and the Patriot Act pursuant to very relaxed Constitutional procedures.[91]

"WAR ON TERROR" SUSPENDS SECURED LIBERTIES TO AN INDEFINITE END

Since the attacks on September 11, 2001, President G.W. Bush has adopted and used the phrase "the war on terror" repeatedly when advocating and promoting the newly passed Patriot Act, and it has created the atmosphere in America that we are in fact fighting a war against a known enemy. As discussed earlier, the government has a seemingly natural tendency to ignore the secured liberties in the U.S. and Bill of Rights during times of war. Furthermore, some citizens may be more willing to give up their secured liberties to obtain a sense of security when they feel that the nation is in a state of "war."

Without getting too deep into the Constitutional grounds and debates of conducting a war, it is important to understand that a vague war declared by a President is at least a war with serious Constitutional problems, if not an unconstitutional war.[92] Put another way, war is defined by the enemy it is aimed against. Thus, using the Patriot Act's definition of terrorism, G.W. Bush's "war on terror" now includes a war against U.S. citizens who may be involved in "domestic terrorism," or activities that appear to be intended to influence the government.

The vagueness of the term "war on terror" raises the question, when will this "war on terror" end? In Thomas Walkom's article, "Bush Counts on War Without End," Walkom recognizes the potential for this "war" to never end because there is no definition to this war:

Is Afghanistan defeated and its former Taliban government in chains? No matter, says U.S. Defense Secretary Donald Rumsfeld. Afghanistan is small potatoes, the Taliban mere tools. The terrorists, we are told, live on. They are everywhere, part of the international conspiracy known as Al Qaeda.

 

Yet even Al Qaeda escapes definition. Each time its alleged leaders are identified, we are warned that more are hiding in the shadows. And whenever the world's attention flags, a new discovery is made. A notebook found in a bombed-out house in Kabul proves that Al Qaeda is planning a nuclear attack. A videotape found in Singapore demonstrates that Al Qaeda is preparing another terror bombing.[93]

 

Taken to its logical level, U.S. citizens will always be the subjects of a vague and ever-continuing war, while at the same time Americans would embrace the new provisions that threaten their secured rights by the Constitution. As a result, secured liberties will never be restored as long as this "war" continues, assuming that it is only during times of war that citizens accept searches that have traditionally been held to be unconstitutional as reasonable.

THE BALANCE OF SECURED LIBERTIES AND GOVERNMENT POWER MUST BE MAINTAINED

 

Since before the formation of the United States Constitution, western civilization has accepted the importance of the privacy of one's home, and America's founding fathers incorporated such principle into the U.S. Constitution as our "secured liberties."[94] As well, for over two hundred years, American courts have interpreted the Fourth Amendment to mandate certain procedures to protect a U.S. citizen from being the subject of unreasonable searches by the government. The courts have required that the government have probable cause that an individual has committed a crime, that the government obtain a warrant to search one's home, and that the government knock-and-announce their entrance; and it was only in very limited circumstances that a government agent enter one's home without notifying the occupant.[95]

Since the enactment of FISA and the Patriot Act, however, our traditional notions of privacy in U.S. citizens' homes have been seriously compromised.[96] Even though FISA attempted to balance the government's interest in desisting terrorism in America by allowing the government to search U.S. homes for foreign intelligence information and for serious crimes in connection to foreign powers, the Patriot Act has drastically redefined what terrorism is, thus reshaping the jurisdiction the government has to conduct searches of U.S. citizens' homes and more. The government no longer must search for intelligence purposes only, but may search homes for criminal investigation purposes. Furthermore, a citizen does not have to be suspected of a serious crime in connection with a foreign power, but may be suspected of activities political in nature.

The founding fathers spoke of the balance of the government and of the "self-governing" nature of this democratic-republic.[97] The Fourth Amendment demonstrates this balance as well as any other Constitutional provision because it incorporates the term "reasonable" as the criteria for government's searches.[98] The term "reasonable" is a term that requires balance--balance between individual's secured liberties and the government's interest in fighting crime. Thus, it is possible to understand how the Fourth Amendment's "reasonable" language can allow more relaxed standards for searches during times of war given the opposing pulls of individual liberties and government's security interest.

However, in America's current "war on terrorism" climate, American citizens can easily become the target of the war;[99] and what's more disturbing is the indefiniteness and unknown length of this war.[100] America has always experienced terrorism and always will. But for the first time in American history, we have entered a war with an enemy that is broader and more vague than any other, leaving the relaxed Constitutional protections against unreasonable searches and seizures in place indefinitely. As a result, American homes can become grounds for criminal investigation, without the traditional protection of the Fourth Amendment,[101] and if the American home can be intruded into-the most fundamental place of privacy-what will not be subject to government intrusion?[102]

"Security, not at the expense of secured liberties": it is the duty of every citizen to maintain the balance of secured liberties and governmental power and intrusion. Understanding the Constitutional significance of these newly enacted provisions of the Patriot Act should motivate every liberty-loving citizen to make their voice heard through their vote and political persuasion. It is important that every U.S. citizen understand that liberty is not to be given, it is to be taken. With this in mind, maybe America will maintain its traditional notions of secured liberty while balancing the need for security.