Government Expansion for National Security
The terror created by the 9/11 attacks have resulted not only in national instability but also in a dilemma that affects the very foundation of the state. This dilemma, springing from the desire to preserve, and to a certain extent recover, national security, extends to the realms of the executive, on law enforcement, and on the intelligence agencies. Ultimately, it touches on the American Constitution itself. In times of war (such as the war on terror) interpreting the mandate of the constitution, expressed specifically on the extension of the responsibility and power of the executive and on the extension and further promulgation of intelligence and law enforcement, becomes a challenge. In this paper, these issues shall be addressed. Specifically, this paper shall be divided into the following parts: The post 9/11 intelligence expansion and dilemma; the Patriot Act; expansion of the executive during times of war: its constitutional issues; and conclusion.
Post 9/11 Intelligence Expansion and Dilemma
Post 9/11, fingers started to point on who is truly responsible as well as solutions were sought to defend the homeland from further terrorist attacks. A concrete case of the encounter between the 9/11 terrorist Ziad Jarrah and Maryland police Trooper Joseph Catalano has stirred enough call for the increase in intelligence activity, both in scope and in breadth. Trooper Catalano, it should be recalled, issued Jarrah a speeding ticket on September 9, just two days before the ill-fated 9/11 bombing. At that time, Jarrah was already in intelligence watch list, as German intelligence has already informed American intelligence of the possible relation of Jarrah to Al Qaeda. But local police received no information since it has been customary that local and state police were distinct from federal intelligence and law enforcement. Prior to 9/11, intelligence and law enforcement were two different things. But, because of the Jarrah-Catalano incident, the issue of extending intelligence work to local and state police has received overwhelming support to the extent that nowadays, the issue is not so much anymore as to whether intelligence work should extend to local police, but as to whether this should be from the bottom-up or from top-to-bottom (Thomson, 2005, pp. 5-7). This meant either starting with or taking the inputs of local and state police in designing a national counterterrorism program, or making a program that is federally-led, making states and localities adjust to a federal mandate. Both ways, local police is now starting to be redefined as intelligence eyes and ears. This meant an creating an unprecedented method for intelligence and information sharing as well as training law enforcement agencies to “develop a mind-set that allows police officials to process and act on information” (Thomson, 2005, p. 5).
But, this top-down versus bottom-up dilemma seems to be less grave compared to the less sensational issue of whether law enforcement ought to be redefined or not. Extending intelligence work to law enforcers means eventually merging two distinct entities. In the first place, this means making the police go beyond the customary “court-recognized standards for investigation” (Thomson, 2005, p. 19). It meant going beyond the “reasonable doubt” benchmark and extending police work to gathering as much information as needed in the name of national security (Thomson, 2005, p. 19). This is a fundamental dilemma on the very essence of law enforcement itself.
Practical reasons were also provided as to why intelligence operations should or should not be extended to law enforcers. The reasons for the extension of such operations to law enforcers were summarized by Thomson this way:
If law enforcement intelligence capabilities were increased; if cooperation among law enforcement agencies increased; if law enforcement agencies developed systems to share information; if national intelligence agencies could establish secure links with law enforcement agencies; if law enforcement’s role in national defense was recognized; it might be possible to strike at organizations that would use WMD prior to their employment (2005, p. 23).
Simply put, extending intelligence operations to law enforcers meant a higher probability to avoid terrorist activities. Now, as to the reason why intelligence should not be extended to law enforcers, two good reasons were also extended: local and state police should not be involved in federal issues; and that such an extension may lead to the spying on citizens plainly involved in unpopular political activities that are not necessarily terroristic in nature (Thomson, 2005, p. 24-25).
As such, there are reasons for the need to extend intelligence operations to law enforcers, but such an extension is also caught up in a number of dilemmas.
The Patriot Act
Prior to discussing the issue on the extension of the powers of the executive, it would be best to say something about the Patriot Act to give a concrete example of how the executive has extended itself post 9/11.
The Patriot Act refers to the legislation sponsored by President Bush after 9/11 that expands and outlines the powers of government operations for domestic security (Thomson, 2005, p. 7). There are ten titles in all. The most noteworthy are the articles that “create funding for counterterrorist activities, expand technical support for the FBI, expand electronic intelligence gathering research, and define presidential authority in response to terrorism” (Thomson, 2005, p. 7). Of all articles, the most controversial is Title II where
The purpose of this section is to improve the government’s ability to gather electronic evidence. In other words, it allows police officials expanded authority to monitor communications. It allows intelligence agencies and federal law enforcement to share noncriminal information with each other. In addition, it forces private corporations to share records and data with federal law enforcement departments during investigations and allows the FBI to seize material when it believes national security is in jeopardy (Thomson, 2005, p. 7).
Expansion of the Executive during Times of War: its Constitutional Issues
That the executive has a constitutionally mandated responsibility to “insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity” (Preamble, Constitution of the United States of America) is common knowledge. This allows the executive to have expanded power in times of war that the legislative and the judiciary would have to give way to. In times of war, Article 2 Section 2 of the Constitution which provides the power to the executive to act “as commander in chief of the military, (have) supervisory responsibility for executive branch departments, and the power to grant pardons in criminal cases” (Encarta, “Constitution of the United States”, 2002) are expanded as much as the other two bodies can take. This is the very reason why the president has been provided with the necessary funds needed for projects like the Liberty Shield that required $8-$9 billion of tax money. This is also the very reason why the United States could come up with agreements with other countries like the United Kingdom to cooperate on measures on “border protection and surveillance, on biometrics and identification, on visa and passport controls… the pooling of research and training, the development of joint facilities that help us… with the danger of chemical, biological, radiological and nuclear imports” (Ridge, 2003).
Nevertheless, it remains a fact that in America, the executive is checked by the Senate. Issues such as those on the eavesdropping of US citizens to defend against terrorism seem an attack on the privacy of the very citizens that the state should defend. As such, this seems to be the very limit of executive and intelligence expansion. It is at this point when a balancing act has to be done by the legislative and the executive to ensure that no excess has been done by anyone, not even by the president himself. In the end, if the expansion of the executive and to an extent of the intelligence means an attack on the citizens, then the Senate has to do its role to balance the ballooning executive power.
To outline, a number of constitutional provisions can be potentially affected by such an executive expansion made concrete by acts such as the Patriot Act:
The Bill of Rights also comes into play by protecting free speech and assembly (First Amendment), preventing the government from illegal search and seizure (Fourth Amendment), and preventing self-incrimination (Fifth Amendment). The Sixth Amendment helps to protect these rights by ensuring that suspects have access to an attorney. The most important amendment for law enforcement after the Bill of Rights was added to the Constitution after the Civil War:The Fourteenth Amendment ensures that suspects cannot lose their rights except by the due process of law (Thomson, 2005, p. 19-20).
It is true that in the issue of the expansion of executive and the intelligence, balance would still have to be present. It is understandable that the congress and the courts have allowed the president to take steps that would normally not be accepted, if not taken during wartime. Nevertheless, irrelevant of the period, the president is never allowed to take measures that may affect the Americans themselves, or compromise the good of innocent people. In moments of expansion, the congress would have to remain vigilant and do its role to ensure that the president (and the agencies dependent on the executive, such as the intelligence offices) sticks to the very reason of his mandate.
Baker, P. & VandeHei, J. (2005). Clash is latest chapter in Bush effort to widen executive power. The Washington Post. Retrieved July 3, 2007, from www.washingtonpost.com.
Encarta (2002). “Constitution of the United States of America.”
Higgs, R. (2002). Defending the homeland. The Independent Institute. Retrieved July 3, 2007, from http://www.independent.org/newsroom/article.asp?id=104.
Priest, D. (2006). National security and intelligence. Find Articles. Retrieved July 3, 2007 from http://findarticles.com/p/articles/mi_m0NTQ/is_2006_Jan_19/ai_n16029424.
Ridge, T. (April 1, 2003). Joint Press Conference with Secretary Tom Ridge and British Home Secretary Blankett.
The Constitution of the United States of America.
Thomson & Wadsworth (2005). Defending the Homeland:Domestic Intelligence, Law Enforcement, and Security. Wadsworth, a division of Thomson Learing.