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LECTURE NOTES: CHAPTERS 15 AND 16
Chapter 15 Outline (Homeland Security and Constitutional Issues)
The debate concerning Homeland Security’s role in the war on terrorism is not just an
idle passing of time in the coffee shop, it raises serious Constitutional concerns. We have
successfully avoided establishing any sort of Gestapo-like organization in this country, or
anything like the UK’s MI5/MI6. Benjamin Franklin once said: “He who would trade
liberty for some temporary security, deserves neither liberty nor security.”
In answering the general hysteria after 9/11, did Congress push through legislation to
“protect the homeland” that in reality undermined America’s civil liberties? The short
answer is, “yes,” but they first did so many years before when they authorized the
president to be able to declare when a state of emergency exists, which in turn allows
superseding the Constitution until the emergency has expired. Legislation following 9/11
simply adds to the magnitude of the problem. As discussed earlier, all terrorism is
criminal in fact and in nature—it is terrorism only in that it is political in nature and the
terrorism label is applied by a government authority.
Americans have to decide on how much freedom and liberty, if any, they want to
surrender for “security.” Such decisions generally are not left up to the people, however,
and the key to our freedoms lies in the character of those we place in authority at all
levels.
There are always trade-offs when considering security. The question of the suspension of
liberty lies at the root of arguments concerning homeland security. Proponents at one end
of the spectrum argue that we should give up some civil liberties in order to gain security.
On the other side of the spectrum, people argue that limiting civil liberties is far more
dangerous than the more limited threats posed by terrorism. Decreasing civil liberties
limits individual freedom and increases government power. It may increase protection
from terrorism, but this will also increase citizen vulnerability to the abuse of government
power.
The most controversial aspects of counterterrorism are symbolized by the USA Patriot
Act. The most sensitive aspect of the law deals with intelligence gathering and sharing.
The USA Patriot Act is actually an acronym; take some time to look up the full name.
Passed in October 2001, it expands law enforcement’s power to investigate and deter
terrorism. Opponents claim that it adversely affects civil liberties. By giving the executive
more power, the Constitution is threatened, and increased executive powers will be used
to mask an attack on civil liberties. Unfortunately, Congress has relinquished its power to
the president, and failed to provide sufficient room for judicial review. Proponents claim
that it introduces reasonable measures to protect the country against terrorists. The act
was amended and renewed in 2006, and the ability to collect and analyze domestic
intelligence remained part of the law. Provisions for allowing roving wiretaps, the
increased power to seize evidence, and increasing wiretaps were approved in 2011. The
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provisions of Patriot Act expired in June 2015 and within days the USA Freedom Act
replaced it. (The USA Freedom Act is also an acronym; take some time to look up the full
name.) Supporters of the USA Freedom Act believe it represents major reforms that will
ensure the protection of civil liberties. Critics have renewed their past arguments, and the
Constitutional debate continues.
The chapter next discusses executive power and the courts. This section is somewhat
misleading because it does not tell the whole story. The reality is that judicial activists
continue to alter the separation of powers as set out in the Constitution to the detriment of
the War on Terror and ultimately the American people.
In the Authorization for Use of Military Force (AUMF), Congress empowered the
President "to use all necessary and appropriate force against those . . . he determines
planned, authorized, committed, or aided the terrorist attacks . . . on September 11,
2001." In Hamdi v. Rumsfeld, the Supreme Court initially recognized that detaining
individuals captured while fighting against the United States in Afghanistan for the
duration of that conflict was a fundamental and accepted practice incident to war. The
Defense Department then established Combatant Status Review Tribunals (CSRTs) to
determine whether individuals detained at the U.S. Naval Station at Guantanamo Bay,
Cuba, were "enemy combatants.” Then, in 2004 the Supreme Court in Rasul, allowed
enemy combatants the right to contest their detention. Congress reacted and passed the
Detainee Treatment Act (DTA) of 2005 which stated that federal courts had no
jurisdiction to hear claims made by alien enemy combatants detained by the military.
The judicial activists in the Supreme Court would not accept that Congress had spoken
and in Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006) the Supreme Court held that the
DTA did not apply to pending claims for habeas corpus relief. Congress then passed
the Military Commissions Act (MCA) of 2006 (Senator Graham noted in the
Congressional Record that “The only reason we are here is because of the Hamdan
decision”) which stated that all claims for habeas corpus, pending or not, were barred
from federal court. Most recently, in Boumediene v. Bush, the Supreme Court, on June
12th, 2008, by a 5 to 4 majority, ignored the President and Congress, and held that
enemy combatants have the constitutional privilege of habeas corpus. In the dissent to
the Boumediene case, Chief Justice Roberts noted, “The majority merely replaces a
review system designed by the people's representatives with a set of shapeless
procedures to be defined by federal courts at some future date. One cannot help but
think, after surveying the modest practical results of the majority's ambitious opinion,
that this decision is not really about the detainees at all, but about control of federal
policy regarding enemy combatants. …. All that today's opinion has done is shift
responsibility for those sensitive foreign policy and national security decisions from
the elected branches to the Federal Judiciary.” Also in dissent, Justice Scalia noted,
“The game of bait-and-switch that today's opinion plays upon the Nation's
Commander in Chief will make the war harder on us. It will almost certainly cause
more Americans to be killed.” …[E]ven when the military has evidence that it can
bring forward, it is often foolhardy to release that evidence to the attorneys
representing our enemies. And one escalation of procedures that the Court is clear
about is affording the detainees increased access to witnesses (perhaps troops serving
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in Afghanistan?) and to classified information. During the 1995 prosecution of Omar
Abdel Rahman, federal prosecutors gave the names of 200 unindicted co-conspirators
to the "Blind Sheik's" defense lawyers. That information was in the hands of Osama
Bin Laden within two weeks. In another case, trial testimony revealed to the enemy
that the United States had been monitoring their cellular network, whereupon they
promptly stopped using it, enabling more of them to evade capture and continue their
atrocities.”
The bottom line is that the ideas of democracy and individual freedom have been
developed in the West for the past centuries. The United States, founded on these
principles, must struggle with the issues of democracy and civil rights. Defense in depth
alters the balance by emphasizing state power. When homeland security is being
discussed, the topic of individual rights should be part of the discussion. To engage in a
struggle against terrorism, critically thinking Americans must examine themselves and
honestly select a course of action they will accept.
Chapter 16 Outline (Law Enforcement, Homeland Security and the Future)
If one accepts the assertion that terrorism will become the dominant mode of conflict for
the near future, then then all levels of American law enforcement should prepare for it. A
comprehensive federal direction in homeland security should help clarify the anti-
terrorism role for state, local, and tribal law enforcement agencies. The Homeland
Security Act of 2002 was touted as the biggest reformation of government since the
Second World War. The Department of Justice (DOJ), the Department of Defense (DOD),
and the Department of Homeland Security (DHS) were given specific functions in
national security, and their missions were to support overall direction of foreign policy
and the Department of State (DOS). Unfortunately, actual operations have often become
duplicative and inefficient.
The most complex process in the DHS analysis is the implementation of a comprehensive
strategy to ensure effective management of national policies. All the federal agencies
involved in terrorism prevention need to develop procedures to ensure that activities
complement one another. Agencies also need to develop methods for encouraging
communication. Lastly, it is necessary to share information. Policies will not work unless
information flows through the system.
The International Association of Chiefs of Police (IACP) flatly states that community
policing leads to homeland security. Community policing is based on law enforcement
officers knowing and partnering with local businesses and residents to come up with
proactive problem solving and citizen involvement in crime prevention. Community
policing will prevent homegrown terrorism and radicalization. Family, friends, teachers,
and neighbors are in a good position to monitor social media and witness radicalization.
The recent examples of homegrown terrorism in Orlando and San Bernardino set the
stage for how community policing could have been beneficial. Law enforcement
agencies are moving away from reactive patrol and investigative focused models of
policing to newer methods of deploying resources based on known patterns of crime and
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criminal behavior. Intelligence-led policing (ILP) is a method of applying criminal
intelligence and data analysis for the deployment of all law enforcement resources
targeting social problems, potential sources of crime, and offenders. Intelligence led
policing fits the model of terrorism prevention in that ILP is designed to disrupt criminal
activities prior to a criminal act, identify community problems, and prevent crime.
One of the obstacles to effective community policing is a perception by many immigrant
and minority communities that the police have become too militarized. The debate is
whether the police use of surplus equipment like MRAPs, protective gear, and weapons
has become too routine. As discussed in previous weeks, the role of state, local, and
tribal police in homeland security is crucial. Tactical law enforcement units will be called
upon to handle threats and deal with many aspects of homeland security in the future.
They must do so without alienating the people that they serve.
One of the emerging critical issues in anti-terrorism policy is the development of
homeland security industries by private businesses. For quite some time, private
businesses have been replacing defense activities traditionally performed by the
government. Several units of government now simply outsource their work to private
contractors, creating a “government-industrial complex,” and it is expanding into
homeland security operations. After 9/11 the nation’s ten largest defense contractors
immediately created homeland security departments in their companies, and they quickly
became the largest contractors within DHS. The reality is that future security activities
will be privatized by corporations unrestrained by Constitutional limitations on
government power. Americans need to think critically about turning over civil rights and
power to “agencies” that are not subject to election, the Laws of War, and sufficient
civilian oversight. Possibly the most dangerous trend in the future of homeland security
will be as private contractors control large amounts of intelligence and the flow of that
intelligence.
The nation needs individuals who are broadly educated to deal with emerging complex
security threats. That is the goal and crux of this class. Another aspect of future policy
should be aimed at settling the debate about the nature of the terrorism problem. When
looking at future tactics, one must remember that the basic tactics of terrorism remain
relatively constant, but terrorists continually develop innovative ways to use them.
Bombs were present at the beginning of modern terrorism, and will continue to be an
important weapon in the arsenal of terrorism. Multiple attacks will be part of the
oncoming wave of terrorism. The NYPD concluded that terrorist tactics from
sophisticated groups will shift from emphasizing suicide bombings to focusing on
military-style assaults by small, heavily armed teams.
NYPD intelligence conducted a detailed analysis of the Mumbai and Lahore attacks and
found similarities. Both involved small unit assaults in dense population areas. They were
preceded by extensive preparation and surveillance. The actual attacks were coordinated
by communicating through cell phones, and small battery operated radios. After the initial
assaults, teams kept breaking down into smaller units, and local police were outgunned at
the time of the initial attacks. The FBI concluded that three future responses are
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warranted from the lessons learned from Mumbai and Lahore. First, it is necessary to
prepare for strikes from small groups operating without a central command. Second, deep
relationships with a local community will be imperative. And third, since ideology and
organizations transcend national boundaries, the FBI concluded that law enforcement
agencies need to develop international partnerships and sources of information.
Terrorism is the new form of international conflict. It is a generational struggle that will
dominate our future, but it is a conflict that our society can win.
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