PROTECTING CIVIL LIBERTIES IN THE AGE OF TERRORISM

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Protecting civil liberties in the age of terrorism
Balancing civil liberties and fighting terrorism is a delicate task that is affecting the Department of Homeland Security (DHS). It is evident that most Americans want the government to fight terrorism and at the same time, efforts against terrorism should not infringe on their civil liberties that are enshrined in the constitution. Polls conducted in the United States reveal that Americans are divided on the issue. Some feel that it is important for the government to safeguard civil rights and liberties than to protect citizens against terrorism, while others feel that it is important for Americans to sacrifice certain liberties in order to fight terrorism. The revelations by Edward Snowden that the government engages in massive surveillance through the NSA (National Security Agency) bring out the urgency of this topic.
The passage of the Patriotic Act was the milestone in the fight against terrorism, but it has been controversial from the start. Proponents of this law argue that it is important if the fight against terrorism is to succeed. It is argued that the provisions of the Act empower law enforcement agencies to gather evidence and diffuse terrorism threats. On the other hand, opponents of the legislation view that it gives law enforcement agencies excessive powers and without the lack of restrictions, individual rights will be violated. Sections of the article have touched on the basic values of the American society.
In the minds of many Americans, civil liberties are the foundation of the country and any laws that limit civil liberties must be fully justified before being accepted. Even after destructive terrorist acts like on the World Trade Center on September 11 2001 Americans are divided on the law. Since the founding of America, Americans have been skeptical about government. They have opposed any expansion of powers since doing so will invade their civil rights. The division of government into the executive, legislature and the judiciary was aimed at maintain a balance and to avert tyranny. The passage of the Patriotic Act gives the executive branch more powers that can be abused if not checked.
The founding fathers of the nation saw freedom as the rule and intervention by the government to safeguard safety and security as the exception. The terror attacks of 9/11 changed the traditional burden of proof. Proponents of antiterrorism legislations have posited that unless it creates a police state, the government could proceed. By doing so, terrorism will assume a secondary role, which is an inverse of what the founding fathers envisioned. The establishment of military commissions violates the requirement of an independent judiciary. A single branch of the government cannot play the judge, prosecutor and jury. Putting these duties under one branch enhances the chance of error. Military commissions are useful in the battlefield, but not required in convicting individuals involved in terror since they depart from due process.
The American government established the Church Commission after more than four decades of unchecked executive power in collecting foreign intelligence. In their recommendations, the commission concluded that clandestine and unchecked power could cause untold abuses. Additionally, they concluded that abuse of power required some degree of Congressional checks, which led to the formation of FISA (Foreign Intelligence Surveillance Act). The basis of FISA was that when the president wanted to target an American citizen to gather intelligence, he must first seek the permission of an independent judge in order to encroach on the privacy of the individual. It can be convincing to argue that when the president has powers to order the searching of homes, interception of communication and emails, the country is safer. However, this goes against the concept of a free society in which relative degrees of risk are taken in order to secure freedom.
Furthermore, antiterrorism laws lead to the suspension of habeas corpus. The aim of this writ was to ensure that before an individual is confined to executive detention, he or she must have an opportunity for judicial evaluation to determine if the detention is lawful. At the behest of the fight against terrorism, Congress has suspended this writ for detainees held in Guantanamo bay. The suspension of the writ of habeas corpus is accepted by the constitution under two circumstances: during insurrection, rebellion or an invasion. Under the current circumstances of war against terrorism, none of the above is applicable. The United States has an effective judicial system to ensure that terrorists are distinguished from law-abiding individuals. The fight against terror can be equated to punishing the innocent because infringing on civil liberties is a punishment in itself. The difference between barbarism and civilization is that in civilizations, the guilty are only punished. It is possible to lower terror threats by limiting some of the civil liberties such as due process and freedom of speech, but the ultimate price will be the American Republic, which is too high.
In the aftermath of 9/11, the pursuit of terrorism by the bush administration caused worry among the public and Congress. Some of the scandals that have shown that executive powers in the fight against terrorism can be abused include secret prisons abroad, communication interception and detainee abuse. Public mistrust that the fight against terrorism may be costing their civil liberties is justifiable when the government eavesdrops on their private conversations. The fourth amendment of the constitution clearly stipulates explicitly that persons have the right to be secure in their persons, papers and effects, and their rights against unreasonable searches and seizures must not be violated. Any official surveillance of international calls or emails of Americans within the U.S required an approval from FISC (Foreign Intelligence Surveillance Court), but there have been reports of government eavesdropping despite the presence of legal restrictions.
There is genuine worry that the misuse of power by executive departments can contribute to violation of individual liberties, and that these civil liberties will be a sacrifice to the war against terrorism. The opposition it draws from some lawmakers highlights the seriousness of this matter. The judiciary in the recent past has shown that it can allow the executive and Congress to override civil liberties during crisis. Majoritarian response in time of crisis is to give the state more power in managing the crisis, giving the state antiterrorism powers as is the case presently runs counter to Madisonian principles of building safeguards against unchecked state power and against the principles of separation of powers as espoused by Montesquieu.
The challenge of giving the state too much power in the fight against terrorism is that it also gives it power to do things that are contrary to the purpose of giving the powers. For instance, giving the state the power to safeguard civil liberties probably grants it power that can be used to violate the same liberties. In light of terrorism, the powers given to the state to fight terrorist are the same powers that are used to restrict civil liberties selectively. Every move aimed at combating terrorists within the U.S will make it easy to violate the civil rights of citizens who will never be terrorists. According to utilitarian theory, the objective of criminal law is to deter and prevent crime through mechanisms such as surveillance and interdiction, but not to arrest those suspected of likely to engage in crime. The apparent objective of most antiterrorism laws is to criminalize deeds leading to terror and to arrest potential terrorists before they strike. Preventive arrests do not augur well to past ideas of prevention of crime. It is unfortunate that the state cannot be restricted to use the laws to selectively combat terrorism. The problem of obliging the government to control itself is an urgent one. The constitutional safeguards put in place to ensure that the government does not abuse antiterrorism legislations cannot be relied upon to safeguard civil liberties. To ensure that civil liberties are not violated, the government must restrict itself in the use of these new powers. The inventiveness of the government in surveillance of likely terrorists such as the use of data mining software will ultimately affect the nature and quality of government. It is almost impossible to reverse inventions that are targeted at violating civil liberties since the government is investing massively in new surveillance tools. In conclusion, balancing the war against terrorism and protecting civil liberties will remain a delicate one and it will remain a hard question affecting homeland security.
Bibliography
Andreopoulos, George J., Rosemary Barberet, and James P. Levine. 2011. International criminal justice critical perspectives and new challenges. New York: Springer.
Chang, Nancy. 2002. Silencing political dissent how post-September 11 anti-terrorism measures threaten our civil liberties. New York: Seven Stories Press.
Crotty, William J. 2004. The politics of terror: the U.S. response to 9/11. Boston: Northeastern University Press.
Freeman, Michael. 2003. Freedom or security: the consequences for democracies using emergency powers to fight terror. Westport, Conn: Praeger.
Hol, A. M., and J. A. E. Vervaele. 2005. Security and civil liberties: the case of terrorism. Antwerpen: Intersentia.

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[ 2 ]. Andreopoulos, George J., Rosemary Barberet, and James P. Levine. 2011. International criminal justice critical perspectives and new challenges. New York: Springer.
[ 3 ]. Crotty, William J. 2004. The politics of terror: the U.S. response to 9/11. Boston: Northeastern University Press.
[ 4 ]. Chang, Nancy. 2002. Silencing political dissent how post-September 11 anti-terrorism measures threaten our civil liberties. New York: Seven Stories Press.
[ 5 ]. Freeman, Michael. 2003. Freedom or security: the consequences for democracies using emergency powers to fight terror. Westport, Conn: Praeger.
[ 6 ]. Freeman, Michael. 2003. Freedom or security: the consequences for democracies using emergency powers to fight terror. Westport, Conn: Praeger.
[ 7 ]. Hol, A. M., and J. A. E. Vervaele. 2005. Security and civil liberties: the case of terrorism. Antwerpen: Intersentia.
[ 8 ]. Andreopoulos, George J., Rosemary Barberet, and James P. Levine. 2011. International criminal justice critical perspectives and new challenges. New York: Springer.
[ 9 ]. Crotty, William J. 2004. The politics of terror: the U.S. response to 9/11. Boston: Northeastern University Press.
[ 10 ]. Hol, A. M., and J. A. E. Vervaele. 2005. Security and civil liberties: the case of terrorism. Antwerpen: Intersentia.