Balance Between Emergency Powers Abuse of Law Essay

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Balance between Emergency Powers, Abuse of Law by the State and Civil Liberties of People within and Beyond the U.S.

Within the United States of America especially after the terrorists' attack of 9/11, there seems to be a delicate balance between emergency powers, abuse of law by the authorities and the citizens' liberty. There appears to be significant connection between increase of liberty and insecurity (Gearty 1). However the question here is what security means, in some instances, security could be national threats such as terror attacks or internal forces threatening the political establishments, those that advance particular ideological ends such as those witnessed in Most North African such as Libya and Arabian countries such as Yemen. Nonetheless, in instances of such threats, civil liberties suffer and it becomes a challenge reconciling it with national security. There are many aspects of liberal democracy such as freedom of expression, association and movement that are dependent upon occurrences such as gross violence that target state structures and more so those that further certain ideologies. Other than freedom of association, movement and expression, there are serious repercussions that may ensue illustrative of the challenge existing between civil liberties and national security. In most cases there exists fervour for sacrifice of civil liberties in the face of perceived threat. Such acts as detention without charge or trial as well as violation of privacy have been used by the state against an intangible enemy. It is possible for a threat to negatively affect the rights and freedoms that are critical in a democracy and this puts pressure on the state to neglect these values. This paper examines the balance between emergency powers, abuse of law by the state and civil liberties of people within and beyond the United States.

Emergency Powers and Civil Liberties

Despite the champion of human rights in many countries of the world, the United States is progressively using normalization process to introduce certain measures into the legal system. This is one way through which civil liberty is lost legally in the most advanced democracy. One of the early indications of this was shortly after September 11th 2001, when Sandra Day O'Connor the Supreme Court Justice suggested that the country was more likely to impose restrictions on the citizenry's liberty more than ever before. She further suggested the reliance on international war rules in the face of terror than on U.S. constitutional criminal prosecutions (Greenhouse). In this regard Schulhofer argues that erosion of privacy does not increase security more than it restricts citizens freedom. Amounting to abuse of law is the expansive surveillance strategies contained in the U.S.A. Patriot Act. The provisions of the Act make it possible for assessing usage of the internet and accessing personal records. This act is a milestone in the erosion of certain individual privacy rights that prevent investigations. It allows the FBI to access personal records of any citizen on a clandestine basis as long as any suspicion is raised against them (Schulhofer 78). This Act is an indication of how imposed measures have the potential to destabilize the balance between emergency powers and civil liberties. USA Patriot Act has the ability to perform searches and has given the mandate to perform secret wiretaps that intercept communications among other activities that out rightly violate individual rights.

This Act has not been without strong criticism. Many have cited the possibility of the Act suspending civil liberty which would undermine the spirit of the founding leaders of the nation as well as stain the nation's history. One of those who opposed the move to allow violation of individual privacy rights was Senetor Russell Feingold. He claims that the nation has seen times when civil liberty was sacrificed in favor of national security and specifically external war threats and that the country still has not recovered from such scars (Feingold). Feingold asserts that the country should not be allowed to drift back into the days of the Alien and Sedition Acts. Russell Feingold's remarks trigger memories in the American history when the government of the day miss- handled human rights. During the civil war and the Second World War, habeas corpus was notplicable more so at the internment of Japanese, Germans and Italian-Americans, the McCarthy era when those suspected communists were blacklisted and the harassment that followed after the rise of anti-war protests influenced by Dr. Martin Luther King.

In addition, the Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), was a typical example of the extent to which the United States would go in erosion of its citizens rights. In this case, the United States under the Nationality Act and the Immigration and Nationality Act reversed the immigration status of two naturalized citizens for draft evasion. However, the court found that both the statutes were unconstitutional. Nonetheless, it is these kinds of moves that many find unfair and a violation of the spirit of liberty as provided under the constitution. The constitution is for all big and small, equally in times of national threat or peace regardless of the circumstances (Feingold).

Emergency Powers, Abuse of Law on Both Sides of the Atlantic

There are indications that the American public after the 9/11 attacks was ready to sacrifice there liberty in favor of their governments efforts in fighting terrorism (Leone 6). Unsurprisingly, most Americans favored the government's activities at Guantanamo Bay; many were of the opinion that holding the detainees made them safer from terrorism (Langer and Sussman ). Courts on both sides of the Atlantic have considered issues related to detention without charge the American version at Guantanamo Bay. In Rasul v. Bush (03-334) 542 U.S. 466 (2004), the United States Supreme Court opposed the decision of the District Court that it had no jurisdiction to hear cases of the non-U.S. detainees at Guantanamo Bay. This case is a good example of how far United States is willing to go in pursuit of the impediments in the path towards the fight against terrorism. This is also an effect of the earlier mentioned remarks by Justice Sandra Day O'Connor. Nonetheless, the Supreme Court seemed divided over the issue holding that detention of non-U.S. citizens was only possible in territories where the U.S. exercised jurisdiction not total sovereignty. Rasul v Bush was as a result of the detention of 12 Kuwaiti and 2 Australian citizens without trial or even access to lawyers in Guantanamo Bay. This was one of the tough measures adopted by the United States after the terrorist attacks of 9/11. The legislature gave the president powers to apply force against entities that he deemed were dangerous to the United States.

On the contrary, in the A and others v Secretary of State for the Home Department [2004] UKHL 56, the House of Lords concurred in the decision that favored foreign detainees held in Belmarsh. The decision also held that the Anti-terrorism, Crime and Security Act 2001, was inconsistent with the European Convention on Human Rights. Here there is a more defined role pitching the government and the judiciary on opposing sides in regard to the reconciliation of citizens' rights with emergency powers based on national security. The House of Lords perceived the introduction of these measures as disproportionate. The two cases are a clear illustration of the how both the judiciary and political spheres in both the United States and the United Kingdom struggle to maintain a balance between emergency powers and abuse of law by the State.


Civil liberties usually suffer in time of emergency. Most likely, the lack of civil liberty in such situations is an indication of their normalization and acceptance into the legal system. The terrorists attack on the World Trade Center and the Pentagon ushered in a new era in the United States where the government imposed measures that eroded civil liberty.…[continue]

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