Based on the FBI report, terrorism is defined as theutilization of violence with political objectives. Terrorist actshave been committed within the US and on its embassies in countriessuch as Kenya in 1998. These acts have had adverse effects such asloss of human life as well as the destruction of properties (Owsley).Also, terrorism acts have led to the breach of constitutional rightsof individuals aimed at preventing them. Over the years, legislationshave been amended so as to accommodate the need to stop theterrorism. Court cases have been brought forward that were inviolation of 4th, 5th or 6th amendments(Owsley 1). The section below will introduce the 4thAmendment Act and provide court rulings regarding cases violation ofthe rights protected by the Act.
The Fourth Amendment
The 4th Amendment Act provides that every singleUS citizen has a right to be safe in the comfort of their housesagainst unwarranted searches and that these rights ought not to bebreached. However, this could be bypassed upon provision of aprobable cause specifically stating the venue to be searched, and theindividuals or properties meant to be seized. The Amendment wasintended to ensure that a warrant ought to be judicially issuedbefore a search is conducted or in the bid to carry out an arrest.For such a warrant to be considered rightful, it must be supported byprobable reason (Henderson 1).
The objective of this amendment was to offer protection rights topeople by fostering privacy from unjustified intrusions by thegovernment. So as to have a claim protection based on the amendment,one has first to exhibit a non-intrusion expectation, which is thatthe community is adequately prepared to admit as well reasonableunder the circumstance. As an example, unwarranted searches ofprivate institutions are forbidden unless there are reasons whichwarrant the searches (Henderson 1).
The protection of conversations deemed private has been limited onlyto people’s communication where the participants possess areasonable doubt that no other persons are listening in on what theytalk about. The Amendment, however, does not apply in the absence ofsuch a justifiable expectation, and intrusion lacking a warrant doesnot cause any infringement. Seeking privacy is not a legitimatereality in the many nations where the ruling bodies openly interceptelectronic talks and are of malicious reasonability in nationsagainst which the U.S is fighting with (Owsley 1).
The legislation also respects the difference between in-countrysurveillance and foreign surveillance of nonresidents living in theU.S. or outside. In the United States v. Verdugo-Urquidez Case, itwas re-emphasized by the Supreme Court that the law is only limitedto protection of U.S. nationals living within the United States ofAmerica’s borders. The meaning of this being that no court warrantwas required to engage in residential searches of foreign citizensliving abroad (Owsley 1).
Over the last couple of years, the applicability of the amendment inelectronic searches has received much scrutiny from the media andcourts. Due to the growing use of internet and high dependence oncomputers and laptops, an increase in electronically related crimeshas increased. As a result, proof of these offenses can be mostlyfound on storage devices in the computers. The amendment is primarilyapplicable to the search as well as the seizure of computer storagedevices such as hard disks (Owsley 1). Most computer storage devicesseizures cases pose issues like whether officials can search acomputer owned by the company that is used in their businesses ornot. Despite the problem having divided opinions, most believe thatthe members of staff lack a legal need for privacy concerning datastored in the company’s hard disks. Recently, surveillance onelectronic devices and wiretapping have led to a substantial amountof litigation of the amendment (Owsley 1).
On December 2005, it was reported that the NSA was performingeavesdropping exercises on phone calls between the US citizens andofficials in foreign nations. The NSA officials were keen onmonitoring particular calls even with no FISA warrant in advance norretroactively. Bush, the president at the time, secretly approved ofthe program, stating that he was afforded broad powers that wereabove legislation such as the FISA by the constitution. He alsodefended himself using a decision made after the 9/11 events, by theCongress, which permitted him to use force in curbing terrorist acts(Cummings 1).
The Bush administration, in response to the NSA program revelation,stated that the warrant needed being really slow and that it had beendelaying terrorism probes. Many of those in administration later saidthat if at all the NSA wiretaps had been in effect by around 2001, itcould have captured many 9/11 suspected persons and possiblyprevented the attacks. However, those opposing the NSA program notedthat this allowed the NSA to get warrants as soon as possible afterit conducted surveillance aimed at avoiding any delays by the warrantprocess.
Royce Lamberth, a District Court Judge who was the lead judge in theFISA, has publicly remarked and defended the court`s speed andefficacy. Additionally, Lamberth`s has further held that the warrantsare obtainable. He further stated that through the years, the courthad denied only 5 of the total 18,766 warrants the government hadasked for (Cummings 1).
Although the president`s legal assertions seemed valid, in 2006, theUS Court deemed the wiretapping issue to be illegal andunconstitutional and further stated that warrants ought to beprovided for all future wiretaps. However, the court’s ruling hasbeen pending appeal. In 2007 Alberto Gonzales, the Attorney Generalat the time remarked that what was normal at the time was thepresidential permit allowing the unjustified surveillance would needto be discontinued and that all surveillance of suspects linked toterrorism must first seek approval by any court of law (Owsley 1).
In 2007, the Congress passed a decision, permitting only six monthsfor unwarranted wiretaps on the American nationals interrorism-related investigations. At times Congress was keen to comeup with ways of how to change the legislation. In 2007, theDemocratic majority were in support of terms that would need theapproval of the courts for a particular number of processes utilizedby the executive which included the criterion employed for choosingthose expected to be under to surveillance. Henderson (1) mentionedthat there are issues scrutinize the validity of the legality andliability of the U.S. companies that had earlier aided the NSA byproviding vital data was later cropped up.
The Patriot Act had also further expanded the practice of utilizingNational Security Letters. The term NSL is coined to define anadministration subpoena which needs particular people, firms, orcompanies to provide information about particular persons ofinterest. This information cally entails phone, mail, andeco-financial records. The letters also possess a gagging request,meaning the person(s) charged with compliance should not even mentionthe use of the letters. It also provided that law enforcing officialscould utilize NSLs when observing U.S. nationals. This is alsoapplicable even in cases where law enforcement officials do not thinkthat the person being investigated has being involved in a crime. Byuse of an NSL, any agency is now not required first to seek a warrant(Cummings 1). Judge Gerard E. Lynch, on behalf of a three-judgepanel, said the initiative exceeded the scope of what Congress hadearlier permitted. Lynch further remarked that the Act could notmanage the entire weight the executive needed the courts to assign toit and that the Congress could not permit the wiretaps (Vogue 1).
Impacts and Implications of Terrorism on the Constitutional Rights
Legislations have been brought up with an aim to prevent terroristacts, the 4th Amendment Act being a critical example.However, some instances like terrorism have negatively impacted theconstitutional rights of citizens. Rights such as the right toprivacy have been severely violated leading to people being skepticalabout the government’s intentions (Freedom House 1).The fundamentalvirtues of the US continue to be damaged with the counterterrorismtactics, mostly the utilization of approval by the government.Despite executive actions having been faced with criticism fromcertain people, the most substantial opposition has mainly been fromthe media and the courts. The media has persisted in asking questionson the effects of antiterrorism strategies, making public wrongfulacts against people or groups of people, and just how effectiveeffects of the administration are.
On its part, the courts have pressured the Congress to change orreverse some of the aspects of counterterrorism acts, whilesimultaneously testing other alternatives (Freedom House 1). Whenevaluating the country’s recovery after 9/11, the dynamics of thedifficulties that the country and other democratic countries areexperiencing in the growth of terrorism mainly those instigated byIslamic groups have to be considered. Regarding the US terrorismproblem, it is clear to note that current terrorist acts areimpacting the Democratic communities around the globe to make changesin both the constitution and methods entirely aimed at nationalsecurity (Owsley 1). In Europe, law enforcement bodies have respondedto the threat posed by terrorism by coming up with strict preventionlaws. The laws further improve the surveillance capabilities, thusincreasing limitations to the immigration and bureaucracy process,and forceful eviction of immigrants who seem to support terrorism byword of mouth or by actions (Freedom House 1).
Many would agree that it will take a long period to establish theright balance between security and rights and freedoms in the currentera marred by acts of terrorism. However, ongoing initiatives, in theform of legislations seem to suggest that the United States ofAmerica, as well as other countries, will successfully achieve thebalance they crave for (Freedom House 1). One way countries, startingwith the U.S. can do is by leading from the fore front in ensuringthat terrorism activities are kept from infringing on personalfreedom and constitutional rights of citizens.
Cummings, Sarah. ‘Search & Seizure: Historical Analysis ofthe Fourth Amendment.’ 2015.
Retrieved December 17, 2016, fromhttp://vc.bridgew.edu/honors_proj/131
Freedom House. ‘The Civil Liberties Implications ofCounterterrorism Policies: Full Chapter.` 2016. Retrieved December17, 2016, fromhttps://freedomhouse.org/report/todays-american-how-free/civil-liberties-implications-counterterrorism-policies-full-chapter
Henderson, Stephen E. After United States v. Jones, After the FourthAmendment Third Party Doctrine. 2013. Retrieved December 17, 2016,from http://dx.doi.org/10.2139/ssrn.2195274
Kerr, Orin S. The Fourth Amendment, and the Global Internet. 2015.
Retrieved December 17, 2016, from https://ssrn.com/abstract=2428042
Owsley, Brian. The Fourth Amendment Implications of theGovernment`s Use of Cell Tower Dumps in its Electronic Surveillance.2013. Retrieved December 17, 2016, fromhttps://ssrn.com/abstract=2307525
Vogue, Ariane. Court rules NSA program illegal. 2015. RetrievedDecember 17, 2016, fromhttp://www.cnn.com/2015/05/07/politics/nsa-telephone-metadata-illegal-court/