This article examines anti-terrorism legislation and homeland security policies enacted after the September 11, 2001 terrorist attack and their effects on the civil liberties of American citizens. In a post 9/11 world, many laws have been created with the intent to protect the safety of innocent citizens. These laws are often encouraged initially but then viewed as excessive, unnecessary and misguided. Anti-Terrorism Legislation and American Civil Liberties Since the beginning of democracy, political leaders, lawyers and scholars have debated over how best to protect fundamental freedoms during times of conflict.
In a nation shaped by the terrorist attacks of September 11, 2001, reducing domestic vulnerabilities while confronting terrorist networks and their support systems abroad have become central priorities of U. S. foreign and domestic policy. However, many argue that anti-terrorism legislation and homeland security policies adopted since the 2001 attacks infringe upon basic civil liberties granted in the U. S. Constitution. There are largely debated fundamental disagreements on how to address the threats posed by terrorist organizations. These disagreements challenge the belief that Americans can be both safe and free in a post 9/11 world.
In efforts to identify how current national security policies and anti-terrorism legislation may infringe upon the civil liberties of Americans, this paper will discuss the historical development of the U. S. national security policy and the larger pieces of legislation passed following the September 11th attacks. Additionally, this paper will address the public’s perception of post 9/11 legislation, possible implications on their civil liberties as well as assess their willingness to sacrifice civil liberties in efforts to reduce the risk of terrorist attacks.
America’s National Security Structure The United States’ National Security Structure consists of several complex organizations tasked with both specific and broad defense duties. The term national security refers to the activities the United States conducts in efforts to protect the country’s foreign and domestic interests. These activities can include anything from conducting counterterrorism operations to securing our domestic borders and consists of two components: homeland defense and homeland security.
Homeland defense is the act of “protecting United States territory from armed invasion and external acts of aggression” (Sauter and Carafano, 2005, p. 211). The United States national security strategy is largely determined by the structure of the United States government and the division of power between the federal and state governments. Homeland defense is the responsibility of the federal government and homeland defense tasks are carried out by the Department of Defense and the armed forces.
Homeland security is defined as “a concerted national effort to prevent terrorist attacks within the United States, reduce America‘s vulnerability to terrorism, and minimize the damage and recover from attacks that do occur” (Sauter and Carafano, 2005, p. 211). The responsibility of conducting homeland security tasks is shared by federal and state governments, local municipalities, the private sector, and individual citizens. Homeland security policies and strategies are determined by the Homeland Security Council with the guidance of the National Security Council and the President.
The Department of Homeland Security is responsible for 60 percent of the annual federal spending on domestic security and mainly focuses on border and transportation security, emergency preparedness and response, science and technology, and information analysis and infrastructure protection. Together, these two components guide a web of agencies toward one goal; protecting the United States and our way of life. Historical Perspective America’s homeland defense strategies have varied greatly over the course of history. Its strategic objectives have served as a plan for strengthening defense systems and warding off attack.
The objectives of each national security strategy have been tailored to address the threats of the time. Homeland security objectives have not always focused around protecting the United States from terrorist attacks. Security strategies in the early 1800’s revolved around protecting America from domestic enemies like the Native American Indians and overseas enemies like the British. Local militias and communities were responsible for defending their own citizens, towns, borders, and coastline from external attacks without federal assistance (Sauter and Carafano, 2005).
Modern communication systems were nonexistent and made protecting America’s boarders even more difficult. During the late 1800’s and early 1900’s, the fears surrounding attacks from overseas were replaced with concerns of federal power versus civil liberties at home. Domestic attacks associated with the Civil War were of great concern and resulted in shift in the security strategy. The United States government increased the role of federal forces in securing domestic security in response to attacks from home based groups like the Confederate army and the Ku Klux Klan (Sauter and Carafano, 2005).
Following the presidential election of 1876, federal soldiers were dispatched to three southern states where electoral votes remained in dispute. The use of soldiers as federal marshals was seen as an abuse of power by the federal government and resulted in a large amount of civil backlash and the passing of the Posse Comitatus Act of 1878. The Act “prohibited federal troops from enforcing state or federal laws without congressional approval” (Sauter and Carafano, 2005, p. 8).
The twentieth century brought a new type of threat to America’s domestic security. As America “grew in power and stature, it was increasingly seen as a potential economic and military competitor by European and Asian powers” (Sauter and Carafano, 2005, p. 9). The focus shifted away from domestic issues and back towards foreign threats. The United States adjusted its security strategies accordingly and increased precautions to prevent espionage and the procurement of weapons of mass destruction by foreign enemies.
However, in making this adjustment, the United States underestimated the strength of non-state sponsored terrorist organizations and failed to address vulnerabilities towards attacks like those of September 11, 2001. Failure of the Homeland Security System Although the United States’ national security strategy has evolved over the years, changes in strategy have been retroactive rather than proactive. The U. S. has repeatedly failed to strengthen its defenses when not necessitated by war.
Consequently, America’s homeland security system failed to detect plans for a massive strike against the homeland despite a variety of leads and warnings. The failure is associated with approximately 3,000 deaths, occurring as a result of the September 11th terrorist attacks. According to Mark Sauter and James Carafano, authors of the textbook Homeland Security (2005), America’s homeland security system lacked strength in virtually all levels of defense. Although evidence indicates that a more effective system could have revealed and prevented the 9/11 terrorist event, America failed to develop and maintain an adequate system.
The text cites “a variety of systemic problems, including disjointed government strategies, balkanized agency responsibilities, an FBI mindset focused on investigating rather than preventing terrorism, grossly inadequate resources, poor technology, a refusal to share information, and just plain sloppy work” (p. 18). The textbook concludes that these problems resulted in America’s failure to disrupt the 9/11 terrorist plot. Respectively, America has had little time to develop a comprehensive set of defensive techniques.
Our current policies evolved from early American tactics which focused on protecting America’s coastlines from foreign enemies. The surrounding oceans provided a type of cocoon that seemed to shield America from attack. Early communication methods limited the availability of a nationally responding unit. Consequently, local colonists bared the brunt of the responsibility for protecting their land from attack (Sauter and Carafano, 2005). The early necessity to defend America’s coastlines evolved into our modern homeland security policies. We have developed military branches to protect America on land, in the air and at sea.
Nevertheless, a complex web of local, state, and national authorities, large naval bases along both coastlines and military bases all over the world could not protect us from a major terrorist event. Sauter and Carafano suggest that the complexity and volume of the United States’ defense agencies prevented any one agency from identifying and responding to impending terrorist threats. Because of the organization of agency responsibilities, American intelligence agencies did not grasp the significance of multiple terrorist attacks over time and geographical space.
They did not identify the strength of a shared ideology among non-state sponsored groups, nor did they recognize the role that our culture plays into that equation. In instances where threats were perceived, little was done to prevent an attack (2005). In the past, America has gained protection from using deterrence methods like threats of nuclear retaliation, developing positive relationships with countries possessing weapons of mass destruction and practicing trade restrictions with foreign nations unwilling to comply.
Although deterrence methods have been moderately effective in the past, these methods cannot be applied to non-state sponsored enemies like al-Qaida. The United States must now use its defense agencies to prevent attacks rather than merely conducting investigations after an attack. Consequently, the FBI dedicated itself to combating terrorism and named it the bureau’s primary mission following the 9/11 terrorist attacks.
Federal agencies also made an effort to increase the sharing of intelligence and created the Terrorism Threat Integration Center which serves as a central location where all terrorist related intelligence can be gathered and analyzed (Sauter and Carafano, 2005). Legislation passed after September 11th recognized weaknesses in the current system and aimed to resolve as many as possible quickly. A Shift in Strategy The Bush Doctrine is a phrase used to refer to a dramatic shift in foreign policy following the September 11, 2001 terrorist attack executed by the al-Qaida terrorist organization.
In a statement issued on September 20, 2011, President George W. Bush identified three global threats that would be seen as hostile actions towards the United States and would elicit a response from both the US and supporting nations. The three threats included terrorist organizations with global reach, weak states that harbor transnational terrorist groups and “rogue” states that might aid terrorists or undertake terrorist acts themselves (Sauter and Carafano, 2005). The President’s statements were supported in both USA PATRIOT Act signed in 2001 and the US National Security Strategy published in 2002.
The USA Patriot Act, signed by President George W. Bush on October 26, 2001, is one of the sets of legislation passed in response to the September 11, 2001 attacks. “USA PATRIOT” Act is an acronym standing for the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism. The Act, containing over 800 sections, created new crimes and penalties which helped the United States identify and punish those who participated or aided in acts of terrorism. It served to improve U.
S. counterterrorism in four distinguishable areas. First, it promoted the sharing of information between intelligence and law enforcement investigations. Second, it authorized the use of existing law enforcement tools for pursuing terrorists. Third, it facilitated surveillance of suspected terrorists using newer technologies like cell phones and the Internet. Lastly, the Act provided for judicial and congressional oversight of the new authorities granted in the legislation (Sauter & Carafano, 2005).
As a result of the US PATRIOT Act, the Office of Homeland Security was established within the Executive Office of the President. The office, headed by Tom Ridge, was tasked with developing and coordinating the implementation of a comprehensive homeland security strategy. A Homeland Security Council of tiered officers was appointed to coordinate the activities. The Homeland Security Council’s strategy is responsible for the development of the Department of Defense’s US Northern Command, Department of Homeland Security, Terrorism Threat Integration Center and Terrorist Screening Center.
The Security Council also integrated both of the Transportation Security Administration and the Department of Health and Human Services into this umbrella of terrorist fighting agencies (Sauter and Carafano, 2005). The US National Security Strategy of 2002 served as a collection of the “security, economic and political strategies based on assumptions about how best to advance national security and build international order” (Bartolotto, 2004). The National Strategy for Homeland Security set three strategic objectives aimed at preventing terrorism, reducing vulnerabilities and improving the nation’s response in the aftermath of an attack.
The first objective named in the strategy focused on preventing terrorism. The strategy called for an improvement in intelligence gathering, actively monitoring terrorist activities, increasing border and transportation security and improving domestic counterterrorism tactics among law enforcement agencies. The second objective focused on reducing vulnerabilities. The strategy included plans to protect critical infrastructure and defend against catastrophic terrorism by preventing terrorists from acquiring weapons of mass destruction.
The third and final objective focused on improving the nation’s ability to respond following an attack. Preparation efforts focused on enhancing emergency preparedness and response programs. Training emergency and law enforcement personnel, stockpiling vaccines and improving communications among agencies were all aspects of this objective (Sauter and Carafano, 2005). Most notably, the publication reaffirmed the United States’ right to defend itself against an imminent threat before any strategic attack is carried out against the nation.
The doctrine also gave the President the authority to launch attacks based on the mere suspicion of impending terrorist attacks against the United States and was particularly important in cases where there was a threat weapons of mass destruction would be used (Sauter and Carafano, 2005). The concept of preemption expressed in the declarations made by the President following the 9/11 terrorists attacks and the subsequent 2002 US National Security Strategy was revolutionary.
Although previous defense strategies recognized a country’s right to defend itself against attack, any methods of defense were generally withheld until the attacker had displayed signs of imminent threat like the visible mobilization of armies, navies, and air forces. The Bush Doctrine did not address how the identification of imminent threat would be translated to groups who do not attack in conventional ways. The right to act preemptively was largely inconsistent with previous national security strategies (Bartolotto, 2004).
The concept of preemption also suggested that the United States would take action to protect its civilian population and resources while preparing to face the most destructive technologies any terrorist organization could employ. The United States vowed to build better and more integrated intelligence capabilities to identify threats quickly. The nation also sought to improve and develop closer relationships with allies facing similar threats and increased military resources. Changes in Action
In the following years, new laws, policies and new takes on previously unenforced laws translated into changes visible in many aspects of American society. Political leaders made tough decisions regarding legislation and, while those decisions were made with the best of intentions, they did not always correspond with traditional American values or celebrated liberties. In a 2009 speech, President Barack Obama stated, “Our values have been our best national security asset—in war and peace; in times of ease and eras of upheaval” (ACLU, 2011).
Despite President Obama’s claim, the American Civil Liberties Union argues that far too many of the post 9/11 policies and practices betray the same values that we, as Americans, rally behind. The government has used its expanded powers under post 9/11 legislation to “engage in systematic policies of torture and targeted killing, extraordinary rendition and warrantless wiretaps, military commissions and indefinite detention, political surveillance and religious discrimination” (ACLU, 2011).
The same sentiments are mirrored in an article entitled Civil Liberties Today published in The New York Times. Author Adam Liptak discusses Attorney General John D. Ashcroft’s “new paradigm” which held that preventing terrorist acts was more important than punishing crimes after the fact. As phrased by Mr. Ashcroft, the paradigm encouraged arrests for “spitting on the sidewalk”. In other words, the new legislation gave officials the liberty to arrest without the same level of evidence previously required.
Most would argue that this “arrest early, charge broadly” tactic goes against the very nature of our “innocent until proven guilty” criminal justice system (2011). Most Americans knowledgeable about the transgressions of our legal system since 9/11 would argue that the greatest civil offenses have been carried out against those we have indefinitely detained for suspicion of terrorist activity. However, the general American population remains largely unaware or unmotivated to speak out against those actions.
A study conducted in 2003 by the Penn State Jimirro Center for the Study of Media Influence reported that although nearly two thirds of the 1,000 respondents feel as if the media has greatly influenced their views on terrorism, less than half of those altered their behaviors as a result of the media’s influence (Jimirro Center, 2011). Furthermore, the study suggested American’s were most likely to speak out against issues directly affecting their existing lifestyle practices. This seems especially true given all of the media attention surrounding the newly enacted airport security measures.
Transportation Security Administration Following the September 11th terrorist attacks, the effectiveness of airport security practices was questioned. By all accounts, it deemed the weakest point in our national security system because the 19 hijackers managed to pass through security at U. S. airports before committing their crimes. New legislation drastically changed the face of airport security. The Transportation Security Administration was introduced in November 2001 and its agents replaced the previously contracted security employees stationed at U.
S. airport screening stations. In 2006, the list of items prohibited from carry-on luggage was expanded to include items like knives and liquids, gels and aerosols in quantities greater than 3 ounces. Any liquids, gels and aerosols in quantities smaller than 3 ounces must be declared, placed in clear plastic bags and examined separately. Passengers are required to remove their shoes, belts, hats and jackets before approaching the security screening kiosk and all of these items are placed along with any carry-on luggage onto the scanning conveyor belt.
Cockpit doors on aircrafts have been strengthened and made to withstand gun fire in efforts to prevent unauthorized access. Pilots have been authorized to carry guns on board if they can show a proper permit. Additionally, identification checks and policies regarding the possession of proper identification before boarding an airplane have been strengthened. The most recent modification to airport security practices involves a mandated full body scan or full body pat-down option. Although passengers are supposed to be given an option between the two screening methods, passengers are often told to “just comply if you want to fly. The body scanner machine uses x-rays to create a naked outline of the passenger’s body. The image is then screened for any concealed weapons. The full body pat-down option is supposed to be an option for passengers uncomfortable with idea of their naked image being viewed by a stranger. During a pat-down screening, a TSA agent is authorized to use their hands to touch areas around genitals or any area in which a weapon could be concealed including around the waistband or under the bra of passengers.
These screening techniques gain the most attention when young children, the elderly or pregnant women are subjected to a more “thorough screening. ” These groups of people strongly conflict with our vision of who a terrorist is and, for many, the screening feels like a huge injustice. The screening becomes the face of an imposition or a punishment delivered for tragedy that our nation endured. A recent article titled Airline Travelers Say TSA Screening Still a Hassle 10 Years After 9/11, iscusses a survey conducted in honor of the 10-year anniversary of the TSA’s creation. The survey suggests that “Travelers are appreciative of some of the steps TSA is taking, but by no means content with the security screening process” (Stone, 2011). By a wide margin, those polled called for policy changes that would phase out the requirement to remove shoes as part of the screening process, halt pat-downs for children 12 and under and increase privacy measures in the full body scanner images. Responses also criticized the TSA employee’s attitudes and long wait times.
The TSA has also faced allegations that its Behavior Detection Officers have racially profiled travelers. According to the allegations, although TSA employees are trained to detect behavior and facial expressions of those who intend to do harm, they were selecting travelers of Mexican descent for additional screening measures. The TSA employees were reportedly selecting travelers solely based on their ethnicity rather than suspicious behaviors. People of Mexican descent are not the only racial group alleging racial discrimination against the TSA.
In earlier incidents, two African American women claimed they were racial discriminated against when TSA agents insisted upon patting down their hair because it was styled naturally. The women argued that white women with large hair styles should be patted down as well. Middle Eastern women have reported difficulty with TSA searches because of their traditional attire. The American Civil Liberties Union argues that these searches “require innocent Americans to give up their civil liberties. ” To which TSA administrator John Pistole responded, “Do I understand the sensitivities of people?
Yes. If you’re asking if I’m going to change the policies, no” (Corr, 2010). In the same article, Pistole claims the screening measures are just efforts to keep up with the threats because our “enemies are constantly evolving their methods and tools and tactics. So What Now? Although the Transportation Security Administration and the American Civil Liberties Union may not agree on many things, both groups recognize a need for security screenings. Additionally, both groups acknowledge that the screenings mean different things to different people.
A woman who has experienced sexual assault may perceive the screenings as overly invasive and violating. A parent who lost their child during one of the September 11th terrorist attacks may not feel as if the screenings are thorough enough. The beauty and the beast of our democratic system is that we elect officials to decide what is best for all of us. When we disagree, we reserve the right to voice that opinion in hopes that our elected officials will listen. Personally, I believe that there is a significant risk of another terrorist attack.
No matter how many attempted attacks we hear about in the news, our government has secretly prevented more. That fact alone is enough to justify increased screenings. I think the largest problem with the screenings has to do with the variance in technique and thoroughness among U. S. airports. Travelers should be made aware of the thwarted attempts so that they may understand new restrictions and procedures. Security agents should make a conscious effort to look past racial bias and communicate their intentions to decrease tensions during screenings.
As both the White House officials and TSA administrations have said in the past, flying is a privilege and those unwilling to submit to the screenings have every right avoid airports.
American Civil Liberties Union. (2011). Keep America Safe & Free. Retrieved from http://www. aclu. org/keep-america-safe-free Bartolotto, J. K. (2004). The Origin and Developmental Process of the National Security System. Retrieved from http://www. dtic. mil/cgi-bin/GetTRDoc? AD=ADA423358&Location=U2&doc=GetTRDoc. pdf Corr, J. (2010, November 17).
ACLU claims TSA screenings violate civil liberties. KTVB. com. Retrieved from http://www. ktvb. com/news/ACLU-claims-TSA-screenings-violate-civil-liberties-108807264. html Jimirro Center at Penn State’s College of Communications. (2011). Media influences perception of terrorism, but fails to sway action by the public, study says. BestThinking. Retrieved from http://www. bestthinking. com/trendingtopic/relateditem/1431 Liptak, A. (2011, September 7). Civil Liberties Today: Criminal law changed surprising little after the attacks.
How law was enforced is another matter. The New York Times. Retrieved from http://www. nytimes. com/2011/09/07/us/sept-11-reckoning/civil. html? _r=1&pagewanted=all Sauter, M. A. & Carafano, J. J. (2005). Homeland Security: A Complete Guide to Understanding, Preventing, and Surviving Terrorism. New York, NY: McGraw Hill Stone, A. (2011, November 15). Airline travelers say TSA screening still a hassle 10 years after 9/11. Huffington Post. Retrieved from http://www. huffingtonpost. com/2011/11/15/airline-travelers-say-tsa_n_1095553. html