The war on terror: causes, consequences, and policy responses

Fourth Amendment Issues and the War on Terror

The Fourth Constitutional Amendment:

According to the Fourth Amendment, it provides the following protections: "The

right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized" (Schmalleger, 2008).

Those protections also prohibit the government from engaging in certain kinds of surveillance, such as wiretaps or searches for evidence of criminal involvement. In the War on Terror, several disturbing reports in the national news suggest troubling concerns about Fourth Amendment violations (Larsen, 2007; Schmalleger, 2008).

The Patriot Act and the FBI:

One of the most significant legislative changes to be implemented after the September 11, 2001 attacks was the U.S.A. PATRIOT ACT. It was intended to allow federal law enforcement authorities responsible for counterterrorism and homeland security additional tools to protect the United States from future terrorist attacks. In principle, the Act provides specific formal guidelines for pursuing certain types of investigations in connection with counterterrorism as exceptions to more general Fourth Amendment constraints on law enforcement (Larsen, 2007: Schmalleger, 2008).

However, several highly publicized events illustrated the degree to which Fourth Amendment rights are vulnerable to law enforcement investigations through the counterterrorism mechanisms of the Act. In particular, the lack of proper oversight and compliance with procedural rules governing the use of national security letters by the Federal Bureau of Investigations (FBI) suggested that some of those counterterrorism tools conflicted with the fundamental rights associated with the Fourth Amendment (Schmalleger, 2008). The intended use of national security letters by the FBI to review library records, for one example, exposed ordinary American citizens to impermissible violations of the Fourth Amendment rights and protections that are fundamental to national concepts of liberty and freedom. Even worse, subsequent review revealed that the highest levels of FBI management who were supposed to guarantee compliance with procedural protections misunderstood some of the most important aspects of the Act and the authorized uses of national security letters (Larsen, 2007).

Impermissible Surveillance and the NSA:

Another example of the challenges of increasing national security without undermining Fourth Amendment rights came to light in 2008 after a former National Security Agency (NSA) analyst revealed that the agency had purposely misused its access to private information. The NSA had been illegally investigating several journalists and even violating their privacy by monitoring their telephone use through systems and capabilities designed for use against terrorist suspects only.

Fourth Amendment constitutional rights prohibit any such use of surveillance without judicial authorization, typically, a search warrant or wire tap warrant issued after a formal presentation of evidence and the establishment of probable cause, as required by the original text of the Fourth Amendment (Schmalleger, 2008). According to the accounts published, the NSA specifically targeted journalists known to have been critical of the presidential administration of George W. Bush, which may raise other significant constitutional problems even beyond the Fourth Amendment issues (Scmalleger, 2008).

Possible Solutions to Balancing Effective Counterterrorism and the Fourth Amendment:

As pointed out by national security expert Randall Larsen (2007), one of the main problems with the so-called War on Terror as conceived by the former presidential administration is the fact that the FBI was an inappropriate choice for lead counterterrorism agency. That is primarily because the FBI is a law enforcement agency that was originally designed to solve crimes and prosecute them criminally. Criminal prosecution requires a much different approach than counterterrorism because the former is intended to punish criminal conduct after the fact while the latter is intended to prevent criminal conduct before it occurs (Larsen, 2007).

Similarly, because the FBI is a law enforcement agency, its use of surveillance and investigation is (appropriately) tightly regulated by Fourth Amendment-related protections (Larsen, 2007). On the other hand, a strictly civilian agency without any powers of arrest or responsibility for criminal prosecution could employ various methods to collect important data without conflicting with fundamental constitutional rights (Larsen, 2007). For that reason (and others), Dr. Larsen (2007) suggests the formation of a national intelligence agency without any law enforcement or prosecution responsibilities at all.