CRIMINAL JUSTICE ISSUE – Fusion Centers.
Emergence of fusion centers and NSA practices have assuaged fears of some and driven others away from US out of fear of government over intrusion. The 9-11 terrorist incident precipitated the initial crisis legislation of the US patriot Act of 2001 which loosened the restraint on government ability to search into citizen’s and corporation’s private data. We say in this country that neither the Constitution nor the Bill of Rights gives any right, but that in recognition of our inalienable natural and/or divine rights the Constitution and the Bill of Rights restrains government from doing what it should not do.
In a time of crisis, it is arguable that what a government should do is different than what it should do during peaceful times. With this in mind there were sunset provisions in the US Patriot Act of 2001 but how genuine and thorough were they. Is the USA Freedom Act of 2015 the solution, the next chapter, what the US Patriot Act of 2001 should have been from the get go, a backed off form of the US Patriot Act of 2001 yet still a gross legislative overstep into the natural and/or divine rights of all mankind. Have we gotten so used to the sacrifice of our freedoms that we are okay now with letting some of them go on a permanent basis.
The next consequent issue is not a libertarian Orwellian fear based philosophy about big government, but a real analysis of the results of both the US Patriot Act of 2001 and the USA Freedom Act of 2015. A real financial and economic impact has been felt by many US businesses in the Tech sector. Asian and European countries do not want to store their data in the US because of distaste and fear of intrusion by the NSA (Castro, D. & McQuin, A. 2015)
How much terrorism have we stopped using the US Patriot Act of 2001 and the USA Freedom Act of 2015? How much of that terrorism would have still been stopped had we not legislatively produced an initial legislation which was overbroad, vague on its face and which went beyond its stated scope of combating terrorism. This is no libertarian argument. This is a pure conservative economic argument based on constitutional originalism. The framers of our Constitution saw that it was better to let a guilty man go free than to convict an innocent man. They framed our Constitution accordingly and then amended it.
The necessary and proper clause, Article 1, Section 8, Clause 18 of the United States Constitution gives authority to the legislature to create laws like the US Patriot Act of 2001 and the USA Freedom Act of 2015. The problem we run into is the over breadth and the vagueness of the wording of mainly the US Patriot Act of 2001. What does it mean to be a suspected terrorist? What specific investigations are going to be used to determine whether a suspected terrorist is a de facto terrorist? Why did we say we wanted a tool to combat terrorism and not define terrorism? Why did we include domestic crime in the bill? The answer is that we had a fear based catastrophe and it gave rise to a piece of well intentioned (some people argue not, but that is outside the scope of this writing) (Welch, 2015) but fearfully and hastily formed and enacted crisis legislation.
When we are faced with our next national crisis are we going to have to slog through a period of questionable application or are we going to stick to our basic axiomatic legal principle of no crime, no punishment without law. We have to be specific in our legislation. We have to allow our legislators time to read, debate and rewrite legislations. We have the special forces of the military to go anywhere in the world for 90 days at the order of the president. That should always buy us enough time for our legislators to at least read the next crisis legislation that comes down the pike.
Castro, D. & McQuin, A. (2015). Beyond the USA Freedom Act: How U.S. Surveillance
Still Subverts U.S. Competitiveness.
Welch, K. (2015). THE PATRIOT ACT AND CRISIS LEGISLATION: THE
UNINTENDED CONSEQUENCES OF DISASTER LAWMAKING.
Capital University Law Review, 43(3), 481-554.
Retrieved from: https://law.capital.edu/Volume43Issue3/