Abstract
This paper will serve as a response and as a reaction to the new-age issues of terrorism and profiling in a post 9-11 United States. Particular focus will be given to the USA Patriot Act, or The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, an act of congress, which was officially signed into law by former President George W. Bush on October 26, 2001 in response to the attacks on 09/11 and renewed by President Obama in 2011. As this act was the basis for the ethical dilemmas we face as a free society fighting terrorism, the provisions of the act will be discussed in relationship to how they aid America's war on terror and their place in our society; along with the relationship to profiling coupled with reasonable suspicion and how this can be utilized by law enforcement in carrying out the provisions of the Patriot Act. In relation to this act, the following ethical dilemmas will be explored: How can there be an ethical balance between civil liberties and national security? How can we ethically, legally, and successfully utilize law enforcement profiles? Is there a different between profiling and racial profiling? Does the Patriot Act aim to strip American citizens of their rights and target individuals of Middle Eastern descent? Does the Patriot Act offer any benefits or advantages to the well-being and security of America? What dilemmas are perceived or due to misinformation? To further aid in the understanding of the ethical dilemmas and solutions, information gathered in an interview with a law enforcement official who has experience in homeland security and anti-terrorism operations will be analyzed in the hopes to deflate myths and misinformation that may create some of the present ethical dilemmas.
Final Research Paper: A New-Age Ethical Dilemma: Terrorism, Profiling, and the U.S. Patriot Act
The United States is entering a new age as is the rest of the world. Our criminal justice system and the concerns of that system are ever changing; and with those changes come ethical dilemmas, or the conscious conflict of moral imperatives. Unfortunately, Americans live in an era where there must be a balance between preserving individual freedoms and ensuring that the nation is secure and well protected. This nation was founded on the basis that citizens could enjoy many freedoms that others cannot. In recent years, Americans have associated civil liberties with the notion of national security; and an ethical and legal debate has been sparked as to where we draw the line between security and freedom. I thoroughly enjoy the freedoms that are granted to me in the United States. However, I also am aware of the fact that these freedoms must be protected so that they me be preserved in the future. Therefore, I, as an American Citizen am willing to compromise some small freedoms in preservation of the “greater good” of the nation. This has been done throughout the history of this country and I am willing to accept heightened security in public places, longer lines, and thorough scanning in public access areas. This is not to say that I am willing to allow wire taps on my telephones, round the clock surveillance, and constant monitoring. However, I am willing to be slightly inconvenienced when traveling or in a public place to ensure the safety of myself, my family, and others around me (Shusta, 2011) (Braswell, McCarthy, & McCarthy, 2015).
There are two key points to remember that serve to balance each other out when we discuss freedom versus security. The first point is that terrorism knows no borders. This country is subjected to much more domestic terrorism such as school shootings, bombings, etc. than any type of international terrorism. For those reasons it is important to employ the best and most effective security measures in our public places. The second key point to remember is that any terrorist attack, domestic or international, is able to bypass almost any amount of security when there is a determined, motivated, and intelligent adversary. The challenges when facing an intelligent adversary is that they are able to respond to and counter security measures and resistance. This is why it is important to still preserve major the major freedoms and liberties of American citizens. If we ignore these freedoms completely then we not only are still prone to attack, but we also have eliminated the same freedoms we aim to protect. Risk and threat can be managed by good security measures. However, risk cannot be entirely eliminated. We can still employ security measures without becoming a “police state” as some refer to it, and without simply targeting people who are of Middle-Eastern descent. Therefore, The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA Patriot Act of 2001) was passed almost unanimously and signed into law on October 26, 2001 by President George W. Bush. The act was in response to the September 11, 2001 attacks; and aimed at protecting the United States from future acts of terror by deterring and severely punishing such acts. Some main provisions of the Patriot Act dealt with domestic security, surveillance regulations, money-laundering in relation to terrorism, border security, investigating terrorism, victims of terrorism, information sharing, infrastructure protections, intelligence, and terrorism criminal law. The Patriot Act is one that has been met
with skepticism, controversy, and scrutiny. However, the Patriot Act is a beneficial piece of legislations as it offers many avenues for law enforcement to effectively fight terrorism and keep more Americans safe. The Patriot Act was also renewed by President Obama in 2011 (United States Department of Defense, n.d.) (Cohen & Wells, 2004) (Braswell, McCarthy, & McCarthy, 2015).
The defense of our nation coupled with balancing liberties and freedoms along with the handling of terrorists is where the ethical dilemma or problem arises. One of the key ethical issues that is discussed in law enforcement’s war on terror is that of profiling, specifically claims of racial profiling along with the overall loss of civil liberties and rights. The Patriot Act, specifically, has undergone many attacks which accuse the U.S. government of stripping citizens of their constitutional rights and civil liberties. It has even gone as far as accusations of the government using the Patriot Act to “spy” on Americans. The Patriot Act is also seen by some as “one of the many sad legacies of September 11.” Some common misconceptions regarding the Patriot Act accuse the government of simply being able to seize papers and personal effects with no reasoning, jail Americans indefinitely with no due process at all, monitor any institution the government sees fit, violate the attorney-client privilege, and many other accused violations. For example, the American Civil Liberties Union is quoted stating that the Patriot Act was a “surveillance monster” and a “cruel hoax on the American people” which had “virtually no rules.” These statements are simply untrue and one made out of misinformation. The issue is the failure to realize and comprehend the mission of the Patriot Act coupled with being misinformed. The reality is while these provisions under the Patriot Act are great tools for law enforcement there are still legal parameters in which they must operate. The Patriot Act has not turned the
U.S. into a country free of liberties and rights; the Patriot Act has simply made it easier for law enforcement to conduct counter-terrorism investigations and bring terrorists and their associates to justice. Attorney General John Ashcroft summarized this point by stating, “The Patriot Act opened opportunity for information sharing. To abandon this tool would disconnect the dots, risk American lives, sacrifice liberty, and reject September 11's lessons…we know that cooperation works. The Patriot Act creates teamwork at every level of law enforcement and intelligence…we know that prevention works. The Patriot Act gives us the technological tools to anticipate, adapt, and outthink our terrorist enemy…The cause we have chosen is just. The course we have chosen is constitutional. We did not seek this struggle, but we embrace this cause” (Silverman, 2003) (CCAPA, n.d.).
To further cite proof or the existence of these ethical dilemmas, racial profiling is not a new topic in our society. In fact, it is one that has become a hot topic in the media as well as a very cumbersome issue for law enforcement in all aspects of the criminal justice system. However, the notion plays a unique role when discussed in the context of terrorism. To illustrate this point, it is an interesting statistic that prior to September 11, 2001, approximately 80 percent of Americans opposed racial profiling. However, after the attacks of 09/11, 70 percent of Americans felt as though some type of profiling was necessary to ensure national security. Many Americans felt they would be inclined to give up certain freedoms to protect the nation. Profiling in law enforcement utilizes a combination of morality, legality, efficiency, equality, liberty, and security concerns. It is important to remember that profiling and profiles are perfectly legitimate so long as they are not solely based on race. Profiles can also be very good tools in detecting criminal and even terrorist activity, but what exactly is profiling and how does it relate to terrorism? (Shusta, 2011) (Braswell, McCarthy, & McCarthy, 2015).
While the initial movement that combated true racial profiling years ago was a positive step in the right direction, the term has been twisted and taken to such an extreme extent that the police sometimes have their hands tied and are unable to perform their duties effectively. By definition, racial profiling is, "racial profiling is any police-initiated action that relies on the race, ethnicity, or national origin rather than on the behavior of an individual or on information that leads the police to a particular individual who has been identified as being, or having been, engaged in criminal activity." Racial profiling has been ruled illegal and is not a permitted law enforcement practice. General profiling, however, does hold some value in combating terrorism. The understanding of this law enforcement practice and the differentiation between profiling and racial profiling can help bring about a response and solution to the ethical dilemmas that are present when discussing terrorism and the Patriot Act. Simple profiling is defined as, "Any police-initiated action that uses a compilation of the background, physical, behavioral, and/or motivational characteristics for a type of perpetrator who leads the police to a particular individual who has been identified as being, could be, or having been engaged in criminal activity." Several profiles of common terrorist figures can be developed based on certain factors that can include race or ethnicity. However, this is not the sole factor in developing a profile. In almost every instance, law enforcement creates profiles and assumptions can be based upon past trends as well as reasonable suspicion based on the totality of the circumstances in any given situation. With reasonable suspicion, "A police officer may briefly detain a person for questioning or request identification only if the officer has a reasonable suspicion that the person’s behavior is related to criminal activity...Reasonable suspicion can be based on the observations of a police officer combined with his or her training and experience, and/or reliable information received from credible outside sources." It is also important to consider who is developing and interpreting the profile. Much of the provisions of the U.S. Patriot Act are indeed rooted in some form of reasonable suspicion at a minimum. The objective of the Patriot Act is not to target people or groups based on race. The different provisions of the act will be discussed in great detail which will show how it is not racially motivated; and how most provisions have nothing to do with race or ethnicity whatsoever. Contrary to popular belief, the Patriot Act is not a "free pass" for law enforcement to racially profile (Shusta, 2011) (Braswell, McCarthy, & McCarthy, 2015).
One of the main focuses of the Patriot Act is to improve U.S. counter-terrorism. This is extremely crucial to U.S. national security as the threats of terror are very relevant. The Patriot Act gave law enforcement officials greater tools to be able to investigate terrorism. Many of the investigative tools that the Patriot Act enabled were already being put to use in investigating organized crime and drug trafficking offenses within the United States. To illustrate this, Senator Joe Biden stated during a debate, "the FBI could get a wiretap to investigate the mafia, but they could not get one to investigate terrorists. To put it bluntly, that was crazy! What's good for the mob should be good for terrorists." These tools granted to law enforcement include increased permission for surveillance of terror related crimes. This essentially means that law enforcement may perform surveillance for a wider variety of crimes that terrorists frequently commit to include: terrorism financing, chemical-weapons offenses, murder of American citizens outside of the U.S., and offenses involving weapons of mass destruction. Cyber-crimes were also criminalized and could be used as a predicate to crimes of terrorism. A second tool is that law enforcement can now better track terrorists who have been successful in avoiding detection and who are trained to avoid detection. Prior to the Patriot Act, law enforcement agencies had used “roving wiretaps” to investigate other crimes with the approval of a federal judge. This allows the tap to be applied to a particular person rather a particular phone or device. This is extremely useful when investigating terrorists as they frequently change locations and use different communication devices to avoid detection. Another consideration is that terrorists are often aware of when law enforcement is closing in. Therefore, the Patriot Act allows law enforcement to operate under the strength of a search or communications data warrant for a longer period of time without notifying the suspect as to “tip them off.” If a terrorist were to be aware of such surveillance they could have the opportunity to destroy or hide evidence. This has been done with other types of criminals and has been ruled constitutional in federal courts. Investigators were also permitted to gather business records with a court order where there is suspicion of terrorist activity. This is especially useful for cases that may involve weapons or the use of chemical weapons (United States Department of Defense, n.d.) (Cohen & Wells, 2004).
The Patriot Act additionally allows more information sharing to better allow law enforcement to see the greater picture when it comes to terrorist organizations. This in essence enabled law enforcement, intelligence agencies, and national defense agencies to share information that could protect the U.S. from attacks. Sen. John Edward stated in 2001, "we simply cannot prevail in the battle against terrorism if the right hand of our government has no idea what the left hand is doing." This provision has proved to be invaluable as information sharing enable authorities to prosecute several defendants in the “Northern Virginia Jihad” case.
They were convicted of various offenses to include conspiring against the U.S. and information sharing with organizations such as the Taliban. This is a vital tool for law enforcement especially since a major criticism after 09/11 was that agencies did not share enough information or communicate properly to prevent attacks. Also, prior to 09/11, the information to protect national security was available but not shared (United States Department of Defense, n.d.).
To further enhance these aforementioned notions and ideas, I recently conducted a telephone interview with a criminal justice professional and acquaintance of mine, Sergeant Ryland Reed of the Folly Beach Department of Public Safety in Folly Beach, South Carolina. Sgt. Reed is a police officer who holds a supervisory rank within his department. He is also a local liaison and committee member of a regional counter-terrorism and homeland security operations team that is comprised of law enforcement officials from all over his region and state. Also as an African-American male, I interviewed Sgt. Reed in order to gain unique insight about his experiences in working in counter-terrorism and in dealing with law enforcement profiling in his work. To begin the interview, Sgt. Reed gave a brief background in which he stated he has almost 7 years of experience as a police officer, including 3 years of experience as a supervisor, and 1 and a half years of experience as a member of multi-organizational homeland security team. Sgt. Reed then commented on his perceptions, opinion, and knowledge of profiling used in combating terrorism, the criticisms of the U.S. Patriot Act, and the advantages of the U.S. Patriot Act. Sgt. Reed began by pointing out a major difference between creating a profile for law enforcement purposes and simple racial profiling. He noted that homeland security and anti-terrorism officials often create profiles of suspected terrorists and other offenders. He added that race or ethnicity may be included in a profile but that profiles are never created or molded solely on race or ethnicity. For example, Sgt. Reed commented, “If we receive a credible tip that a Palestinian militant group were planning an attack in our area, then it would be reasonable to include that ethnic group in our profile. This is similar in that if we were to receive a threat from a domestic terrorist group such as the Black Liberation Army, that we would include African-Americans in that profile, it is all relative and based on each individual profile, it has nothing to do with singling anyone out. I would not be offended by an African-American profile and neither should any other reasonable person who realizes this is just one piece of the puzzle.” Sgt. Reed added that the general public will often become offended and raise ethical concerns whenever profiling is mentioned regardless of the context because they do not truly understand what profiling is and atomically assume that it will be based largely on race or ethnicity. Lastly, Sgt. Reed discussed the Patriot Act and how it has become easier for law enforcement to obtain search warrants, conducting surveillance, disabling terrorist by targeting their funding, enhancing cyber-security, and even harshening penalties for terrorists. The following is a blend of research on the benefits of the Patriot Act along with a summary, reinforced with further research, of some of the valid arguments and information that Sgt. Reed provided during his interview (Sgt. R. Reed, personal communication, December 10, 2014).
Furthermore, the following can prove to aid in a solution simply by providing education and facts. Often times, ethical dilemmas are formed through misunderstanding and misinformation. The Patriot Act updated many existing laws to bring law enforcement and investigators on par with modern technologies, enabling them to combat terrorism in a digital age. Previous to the Patriot Act, investigators were obligated to apply for a search warrant in a particular district. Since terrorism can span a vast area, the Patriot Act allowed investigators to obtain a warrant for any district in which terrorism offenses are occurring. This saves law enforcement valuable time and could ultimately save American lives. The requirements regarding the notification after a search was also loosened to aid in protecting investigations where there was strong reason to believe criminal activity was occurring. Another extremely beneficial provision is that victims of computer crimes may request law enforcement assistance in monitoring the cyber-trespassers. Immigration restrictions were also enhanced in order to rid the U.S. of foreign aliens who participate, organize, or support acts of terrorism. Lastly, money laundering was an issue of great concern. The U.S. government placed greater emphasis on banks to perform more stringent regulatory measures to help prevent the laundering of money. This included stopping the flow of currency from international terrorist organizations through U.S. banks because once the source of funding is eliminated a terrorist organization will be crippled. (Cohen & Wells, 2004) (United States Department of Defense, n.d.).
The deterrence factor of the Patriot Act is seen in the harshening of penalties for terror related offenses. This includes prosecuting individuals and groups who harbor, support, conspire with, or commit an actual act either domestically or abroad. The Patriot Act strictly prohibited the harboring of terrorists to include those who commit any terror related offense. The maximum penalties of such offenses were increased which includes any offense that is related to terrorism operations as well as for conspiracy. Also to be increased were offenses of mass transit attacks, bio-terrorism, and other underlying offenses. The statutes of limitations for many such offenses were also lengthened or eliminated depending upon the offense (United States Department of Defense, n.d.).
Those who oppose the Patriot Act due to perceived ethical issues or other moral dilemmas are also urged to consider the current global climate in regards to cyber-security and cyber-terrorism. These are major issues which could potentially be disastrous to the United States in the future. In relation to communications gathering and the Patriot Act is cyber-security which is a continual concern for this country along with protecting our other national infrastructure systems. Our cyberspace and cyber infrastructure affects everyone in the nation. Cyberspace is not entirely secure or resilient to an attack. It drives almost every facet of the country from government operations to private industry. It is frightening to think about just the sheer amount of cybercrime that occurs in this country (i.e. identity theft, hacking, scams, phishing, etc.). The effects of these cybercrimes are often devastating to the victims. It is hard to fathom the effects that a large scale attack cyber-attack would have on this nation as a whole. The Patriot Act allows victims of computer hacking to request law enforcement to track the hackers. The Patriot Act also aims at targeting these cyber-crimes as they relate to terrorism and national security. Cyber-monitoring and cyber-crime enforcement is also useful in identifying and apprehending domestic terrorists and “lone gunman” who are often undetectable but who undoubtedly pose a substantial risk to the U.S. Furthermore, cyber-terrorism knows no race, ethnicity, nationality, gender, religion, or creed. Cyber-criminals and terrorists for that matter exist in all corners of the world. Under the Patriot Act, authorities are able to better track them (Cohen & Wells, 2004).
In conclusion, after 09/11 the United States entered a new-age, not only for our nation but for our entire criminal justice system. Our nation was in search of a solution on how to safeguard the country’s national security while keeping the freedom of its citizens intact. The Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, "gives us the tools to finish the job” according to some. While viewed as controversial and even unconstitutional by others, the U.S. Patriot Act enhances already existing laws and provisions to allow law enforcement to identify and stop terrorists. This struggle for balance and the introduction of controversial legislation led us, as Americans, to an ethical dilemma. The provisions involve terrorists and conspirers alike and aim to focus on all aspects of terrorism and related activities. The Patriot Act also enhances the punishments for these acts. The research provided on the Patriot Act as well as insight from a minority law enforcement official should reduce misinformation and increase understanding of what we as a nation are trying to accomplish. Therefore, the U.S. Patriot Act should be viewed as a vital tool in the eradication of terrorism and also in the preservation of the great freedoms that these same terrorists attempt to strip us of. America enjoys are tremendous amount of freedoms which make it the great country it is today. People immigrate and flock from the farthest corners of the world to live in such freedom. Unfortunately, there are people who seek to destroy our freedoms and way of life. Therefore, the United States of America must simultaneously balance the security of the nation while preserving its freedoms and liberties. As an American citizen, I am even willing to compromise and sacrifice some small freedoms in my life so that the overall freedoms and well-being of the nation remain intact. However, the fact remains the majority of Americans’ liberties and rights must remain uncompromised or the enemy has already won their battle in destroying the American way of life. As we can see, the provisions of the Patriot Act are not racially motivated nor do they seek to strip Americans of their rights as some claim; and only enhance existing laws and make it easier for law enforcement to track and bring terrorists to justice. In this particular dilemma, the solution comes with knowledge, understanding, and perspective.
