Patriot Act and 911 Commission Exclusionary Rule and Miranda v. Arizona

Corruption exists within all aspects of government, and has since early civilization. While many steps have been taken to prevent such corruption in other areas of the world, the United States has recently introduced legislation that has the potential to actually increase the amount of possible corruption, particularly in reference to police officers "enforcing" the law. This paper will discuss the U.S.A. Patriot Act and its follow-up legislation, the Domestic Security Enhancement Act, nicknamed Patriot II, and will discuss why these legislative measures actually serve to increase corruption. Additionally, this paper will discuss the 9/11 Commission's recommendations for limiting the corruption issues made possible by the Patriot Acts.

One of the sections of the Patriot Act that has potential problems in relation to overzealous law enforcement is Section 215, which modified the previous rules on record searches. Under the Patriot Act, law enforcement no longer needs an individual's consent, nor do they require the individual to have knowledge that the search is taking place. As long as the law enforcement officers can say the effort is being done to protect against terrorism, anyone's financial, library, travel, video rental, phone, medical, church, synagogue and mosque records can be obtained (Lithwick & Turner, 2003).

One might ask, "What has changed?," since the public is generally aware that secret orders for records were allowed by the FISA courts prior to the Patriot Act. Prior to Patriot, this power to secretly obtain records was checked by two safeguards. First, the law enforcement agency had to present evidence that the person to whom the records pertained was a spy or terrorist. Secondly, few records were available by secret order, such as those related to hotels, car rental agencies, and storage facilities. Under Patriot, those safeguards have been removed, so that law enforcement can now obtain almost any record, without any justification or proof (Lithwick & Turner, 2003). Without the safeguards in place, I believe law enforcement will use the guise of "terror information" to obtain private information otherwise inaccessible to them.

In addition to Section 215, Section 218 is also a concern. Under Section 218, secret searches of homes and places of business can be authorized without public knowledge and without Department of Justice responsibility, as long as the officers can claim there is a foreign intelligence foundation for the exploration. Whereas previously, such searches required a link to foreign espionage, Patriot allows for searches with a "significant purpose" in intelligence gathering, even if that search does not pertain to a terror investigation. Even further, Section 207 lengthens the duration of the new search warrants, up to 120 days (Lithwick & Turner, 2003). I believe these sneak and peek warrants, as they are nicknamed, will again be sought out by overzealous officers who simply need more information about a case.

In light of these obvious possible problems, one might ask what other possible extensions of corruption exist as a result of Patriot? In my opinion, the list is endless. In addition to the sections above, Patriot Section 214 dramatically extends the ability of state and Federal government to perform surveillance of American people, using wiretaps and pen registers. Under Section 214, the enforcement officers need not prove there is a probable cause, but only show that the information to be gathered is "relevant." Further, Sections 202 and 217 allow law enforcement to wire tap electronic communications to investigate computer crime, even if those crimes are not related to terrorism. Enforcement officials are now allowed, under Patriot, to intercept any electronic communications, including email, faxes, instant messages, and more, without a judge's approval (Lithwick & Turner, 2003).

One could ask why this is a concern to ordinary citizens? If a person is not guilty of committing a crime, should they still be concerned? I believe the answer is absolutely. All Sections listed above allow for an increase in the secret search, surveillance, and monitoring of any American citizen, thus violating the Fourth Amendment of the U.S. Constitution. The Patriot Act does not distinguish between false accusations or information given by law enforcement to obtain these secret surveillance warrants, and does not require proof of these supposed "terrorist information" links. Further, the Patriot act eliminates all government accountability by not requiring any proof of crime, or requiring a presentation of the evidence obtained from the secret warrants (Lithwick & Turner, 2003).

Perhaps even more concerning than the Patriot Act is the follow up legislation, that of Patriot II. The provisions contained in Patriot II further corruption possibilities even more than Patriot I. Under Patriot II, the Total Information Awareness program, which will build data profiles of all Americans, will become law. This means agents would not require a court order to access credit reports, would not have to show any criminal activity, and would not "note" the report, meaning that no one would know their report had been obtained by the government. The enforcement officials need only show their efforts were "in connection with their duties to enforce federal law" (Ramasastry, 2003).

Even more disturbing is the "Terrorist Identification Database." DNA material could be collected under Patriot II from anyone associated with any group designated as "terrorist." This association could be only donations given to the group at one time or another. Since Patriot I defined "domestic terrorism" as any action that endangers human life or is a violation of law, almost anyone could be thought to be "associated" with terrorist groups, without cause. Further, anyone convicted of a crime would have DNA collected and submitted to the database (Ramasastry, 2003). One might ask what sorts of crime would result in such an action? According to Patriot II, any crime, no matter how minor, would lead to DNA collection (Ramasastry, 2003).

Still further, already expanded surveillance powers would be increased even further, increasing the likelihood of misuse by authorities. Since Patriot II seeks to eliminate the distinction between domestic and international terrorism, all terrorism warrants could be issued by the FISA courts that are notoriously more lax in warrant grants. Patriot II also allows law enforcement to deem someone as a "foreign power," even if that person is a resident of the United States, without proof of any criminal or terrorist actions (Ramasastry, 2003).

One might ask what recourse citizens have, if they are falsely accused? In my opinion, this question brings to light the portion of Patriot II that will lead to the highest amount of corruption. Under Patriot II, law enforcement engaging in spying operations are immune from liability, even if those operations are unfounded (Ramasastry, 2003). Citizens will have no recourse against these acts by their local law enforcement agencies, even though their Constitutional rights have been violated.

In light of these obvious corruption issues in Patriot I and II, the 9/11 Commission, responsible for providing a complete account of the September 11th attacks, offered several possible solutions in their Final Report which have yet to be implemented by President Bush. In their Final Report, the 9/11 Commission recognized the criticisms against the FBI for their "overzealous domestic intelligence investigations" (9/11 Commission Final Report, 2004, p. 423). Additionally, the report noted, on page 424, that a new intelligence agency would be difficult to oversee. According to the report, the possible "abuses of civil liberties" could create a backlash that made intelligence gathering even more difficult (9/11 Commission, 2004, p. 424).

One might ask what solutions the 9/11 Commission proposed. The Committee recommended the creation of the Privacy and Civil Liberties Oversight Board. This board, located within the Executive Office of the President, would ensure that the privacy and civil liberties of citizens were protected. The Board would consider the implementation of any law, policy, regulation, or other action related to the protection of the U.S. against terrorism, and would ensure that no act or policy violated the Constitutional Rights of American citizens. According to the 9/11 Commission, the Board would have access to all information from all departments and agencies, unless that information would crate a national security issue. The Board could also request information from those outside the government, including documentation and other evidence. This, in my opinion, would help to ensure that the liberties of U.S. citizens were not violated unnecessarily under the guise of "terrorism protection."

Further, the 9/11 Commission recommended Congressional oversight for intelligence and counterterrorism. Their recommendations included a joint committee, or a single committee responsible for reporting activities of intelligence agencies to the House and Senate. Additionally, the committee would be responsible for analyzing all activity within the intelligence departments. I believe this would help to ensure that responsibility for inappropriate activities would be taken.

There is no question that the Patriot Act and its follower, Patriot II, severely limit the rights of citizens, and violate most of their Constitutional rights. Further, both Acts raise severe questions about the ramifications of enhanced surveillance operations of local, State, and Federal law enforcement. While the 9/11 Commission attempted to counterbalance these threats to the citizen's civil liberties, the government, intent on "protecting" the country, has done nothing to implement them. The protection of citizens should not only consider protection against terrorism, but also protection against their own government.

Throughout recent history, citizens have fought in court for the right to regulate the behavior of law enforcement. The prevention of brutality, coercion tactics, and misuse of resources of law enforcement is a vital part of the ongoing relationship between citizens and those responsible for enforcing the laws. Those regulations are enacted through the Warren Court, and the Court's decisions in many legal battles, as well as through the United States Constitution. This paper will examine one of those protections, the "Exclusionary Rule," and will discuss how this protection has assisted the public in regulating the behavior of law enforcement.

How does the Exclusionary Rule relate to the Fourth Amendment? First, it is important to outline the purpose of the Fourth Amendment. The Fourth Amendment states that people had a right to be secure in all aspects of their lives from unreasonable search and seizure. Additionally, the Fourth Amendment states that no warrants should be issued, unless probable cause can be established, and any warrants issued should describe the place and person or things to be searched and seized (FindLaw, 2005).

However, the Fourth Amendment does not specify how the guarantee for this right is to be put into action. If an illegal search and seizure is committed, what rights do the violated persons have? In theory, there are many possible solutions to this issue. Officers undertaking the illegal search can be prosecuted; however, this is unlikely to happen. Persons who have been illegally searched can sue for damages, as well. However, often, those cases are lost, since the officers in question can claim the search was in good faith. Additionally, those subjected to illegal searches are often not the type of persons juries sympathize with, and are often too poor to file suit (FindLaw, 2005).

One might ask, then, what is the solution to illegal search and seizure? The answer, according to the Courts, is the Exclusionary Rule. This Rule holds that unconstitutionally seized evidence can be seen as inadmissible in any subsequent court proceeding. The evidence is excluded from other evidence gathered through proper means (FindLaw, 2005). In this way, the Court rightly attempts to protect those illegally searched, and give them some course of action in rebuttal.

The Exclusionary Rule has assisted hundreds of defendants in fighting against information seized from them under illegal circumstances. One might ask what types of evidence have been excluded from evidence, due to illegal search and seizure? In 1919, in Weeks v. United States, Weeks, the defendant, was on trial for mail fraud. The police, without a warrant, illegally searched his home three times, removing "evidence" each time. The Supreme Court determined that the information should not have been accepted into court, since it was illegally obtained (FindLaw, 2005).

In another case, that of Rochin v. California, the defendant, accused of narcotics possession, filed an appeal for violation of his Fourth Amendment rights. The original arresting officers, on realizing the defendant had swallowed pills they needed for evidence, proceeded to attempt to force open the mouth of the offender. When that failed, the officers forcibly administered an emetic. According to the Court, this constituted one of the highest violations of the Fourth Amendment, that of police brutality (FindLaw, 2005).

In another case, Mapp v, Ohio, the Court finally fully tied the Exclusionary Rule to the Fourth Amendment. Following an illegal issuance of a search warrant, police broke into Mapp's home, and removed documents that were later used to convict her. On appeal, the Court ruled that the evidence was inadmissible. In their decision, the court noted that finding evidence inadmissible if seized in violation of the Fourth Amendment was one of the most important constitutional rights, and was an essential part of the right to privacy. The Court continued to note that the Exclusionary Rule was the only deterrent to overzealous police actions, and the only protection of individuals against such actions (Mapp v. Ohio, 1961). I believe the Courts are correct, in that if we allow the officers of the law to violate Constitutional rights in the name of protecting against criminals, we are effectively creating a legal force of criminals, in and of its self. If we punish those who commit burglary, but allow law officers to commit just that, we are effectively negating the law they are fighting to protect.

While the Exclusionary Rule does protect citizens both by deterring illegal search activities, and by not allowing the fruits of those searches into evidence, there has been limitations on the Rule, particularly due to the case of United States v. Leon. In the case, officers applied for and received a warrant to search three homes, which produced drug evidence. During appeal, the defendants maintained that the warrant was defective. The Court in this case created an exception to the Rule, by claiming that evidence seized "in good faith" on a warrant that was faulty did not fall under the Exclusionary Rule (U.S. v. Leon, 1984). Why did the Court go against its own previous judgments? In part, the Court found that, in the Leon case, there was no action that needed to be deterred, which is the goal of the Exclusionary Rule. According to the Court, the Rule is "designed to deter police misconduct." In this case, the police were not in the wrong, but were hindered by errors of the judge that issued the warrant (U.S. v. Leon, 1984).

One major concern with this type of limitation is the vagueness of the ruling. It is unclear how the Court would react to "good faith" exceptions in cases where evidence was taken without any warrant. Further, knowing that the Court allows for "good faith" exceptions, it is entirely possible that more officers will use "good faith" reasoning to defend their illegal searches. This in and of its self could lead to more limitations of the original ideas laid out in the Exclusionary Rule.

If the defendant in the case is guilty, some might ask, why does the method to obtain evidence matter? According to Justice Day in the Weeks trial, the Exclusionary Rule was designed to restrain the courts and the officers from exercising unreasonable power to obtain information. The Court went on to state that if documents obtained through illegal searches can be used against the individual, then the Fourth Amendment may as well not exist. The Court noted that, while the end goal of punishing a guilty person is praiseworthy, to do so at the expense of the Constitutional rights of the person is unacceptable (FindLaw, 2005).

While the Exclusionary Rule certainly protects citizens against police brutality and illegal searches, there are limitations to its power. There are no clear-cut rules as to what constitutes a violation of the Fourth Amendment, and no set of circumstances that invokes the Exclusionary Rule as a whole. As long as it is up to the Courts to decide when the Exclusionary Rule is to be allowed, there will still be a potential for the abuse of search and seizure by police officers.

In the 1968 Supreme Court case Miranda v. Arizona, the Court decided that the Fifth Amendment to the Constitution, that of the prohibition of self-incrimination, was to be applied even in cases where the individual is in police custody. To protect the Fifth Amendment, the Court declared that suspects who are to be questioned must be told of their right to remain silent, that what they reveal may be used against them in Court, that they have the right to an attorney, and that the law allows them an appointed attorney, if they cannot afford their own. With this case, the Miranda rights were created ("Miranda v. Arizona," 2005). However, the Miranda rights have been seriously diminished over the course of time. This paper will discuss how the Miranda decision has been eroded over time, and the long-term outlook of the decisions application.

What did the Miranda decision originally attempt to provide? According to the Court, Miranda was intended to allow for pressure against defendants, but to extinguish the use of coercion (O'Connor, 2004). What was their reasoning? The Court made this decision in light of a review of police interrogation practices which showed either physical abuse or the obtaining of confessions through force and ploys ("Miranda v. Arizona," 2005). Unlike the Exclusionary Rule, Miranda was created only to draw a line which differentiated coercion from pressure, not to reform police policy. It was not designed to eliminate the process of interrogation, which causes stress and discomfort, but was instead created to avoid involuntarily disclosing information under threat of force or punishment (O'Connor, 2004). What are the consequences of a Miranda violation? According to the Miranda decision, any statement obtained without first reading the Miranda rights is inadmissible in a Court. While one can waive their rights, the law enforcement officers must prove that waiver has occurred without threat and without coercion (O'Connor, 2004).

One might ask, with such a noble intention, what has lead to the erosion of the Miranda? Part of the problem can be found in the restrictive nature of the rule in general, in my opinion. For the Miranda to be required, the individual being questioned must be in both custody, and being interrogated. This means that not all questioning, even at the police station, requires a reading of Miranda. For example, if an individual voluntarily meets with officers for questioning, they are not considered to be in custody, and thus are not required to have Miranda rights read. Additionally, questioning at the crime scene of witnesses and parties involved generally does not require a reading of Miranda, unless the person being questioned is likely to be arrested. Questioning of a suspect in his or her own home may not be subject to Miranda, assuming the environment of questioning is not hostile (O'Connor, 2004).

How do these limitations lead to the erosion of the Miranda Rule? Over time, I believe limitations such as those above have left the door open for Court decisions that allow violations of Miranda, or the designation of situations that do not require Miranda. For example, in Pennsylvania v. Muniz, the Court ordered that Miranda is not required for booking proceedings. Another exception includes the idea that is a suspect confesses right away, prior to Miranda, but is later read Miranda, anything stated after Miranda can be used in court. Additionally, the Court has ruled that if a suspect has not been Mirandized and gives an alibi, and if the detectives find the alibi or any associated information to be against the suspect, that information can be used against him or her, even though the original tip was given without Miranda. Still further, if an arrest is made during an illegal search and seizure, but the suspect is read his rights, and then confesses, the illegal search does not taint the confession under Miranda (O'Connor, 2004). These limitations of the Miranda rule serve to negate the original intention of the Miranda Ruling, that defendants are not required to incriminate themselves. In my opinion, they allow law enforcement more power than what Miranda originally intended.