Introduction
Following the September 11 attacks on the US, Congress was concerned with increasing the capacity of the surveillance units of the nation for possible terror activities. The Patriot Act is one of the legislative tools that the government adopted in fighting terror around the country. Specifically, the Act increased the power of the investigative units to search financial, medical, e-mail communication, telephone and other types of records. It also allowed foreign intelligence collection around the country, expanded the regulatory practices of government on financial transactions, and allowed the US to detain non-citizens who are suspected of terror activity ( Alexander, 2014 ). The cited author suggests that the Act included domestic terrorism to the definition of terror as a means of ensuring that government had the required capacity to deal with crimes of such nature. Today, the Act allows governmental agencies to collect intelligence data from both citizens and aliens.
According to Christopher (2004) the adoption of the Patriot Act resulted in the amendment of fifteen statuses that provided a means through which the government collected intelligence information from the citizenry. One learns that the Patriot Act intended the best for Americans, especially through the protection of its populace from the menace of terrorism. Nevertheless, issues concerning the application of the new law have emerged in the recent years—the public is concerned with the ethical implications of the Act, especially on the power given to the intelligence agencies to ‘spy’ on them. This essay analyzes the ethical implications of the Patriotic Act. The author approaches the topic from the perspective of the Homeland Security and the Just War Theory. Though the essay identifies a conflict between the Department of Homeland Security and the public, it notes through the lens of the Just War Theory that the Act is ethical. The argument drawn from the analysis is that in considering the ethical implications of the Act, it should be noted that govern has the moral duty of refraining from infringing on the digital privacy of persons without probable cause.
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The Ethical Implications of the Patriot Act
The Patriot Act Violates Civil Liberties
A primary ethical issue surrounding the enactment of the Patriot Act is that it violates civil liberties. According to Alexander (2014), the Act violates the constitution in different ways. For instance, section 215 of the legislation violates the provisions of the Fourth Amendment. According to the Fourth Amendment, government is barred from conducting searches on civilians without the obtainment of a warrant indicating probable cause suggesting that an individual has committed or is likely to commit an offense (Siegler, 2005). It should be noted further that section 231 of the Act—the Sneak-and—Peek Warrants provision contributes to the violation of the Fourth Amendment. Literature indicates that section 213 of the Patriot Act permits the law enforcement officials to carry out covert searchers without notifying the suspected persons until later (Siegler, 2005). However, the same study indicates that a District Judge ruled that it was unconstitutional for intelligence officers to conduct such searches in 2007. The failure to provide notice for searchers on suspects is also one of the most significant elements of the due process that the Fifth Amendment guarantees (Casey, 2007).
The Roving Wiretaps—contained in section 2006 of the Act—have been applied on several occasions in criminal disputes yet that are unconstitutional. The roving wiretaps permit law enforcement professionals to follow targets through several internet and telephone accounts when it is believed that such persons are changing their lines frequently as a means of frustrating surveillance. The unconstitutionality of the roving wiretaps is based on the fact that they can be applied in cases of criminal intelligence of criminal activities through permitting broader requirements for the taps. Section 214—the trap and trace searches—of the Patriot Act breaches the Fourth Amendment for the fact that there are always no requirements for probable cause in the obtainment of the search warrants. Under the current law, the intelligence officials only certify the application of the warrants without having to prove the same to the judges and judges do not have the power to reject such applications.
Further arguments on the unconstitutionality of the Patriot Act indicate that it violates the First Amendment that guarantees free speech. The Act hinders the recipients of the search orders from informing other people concerning the orders even in circumstances that do not involve read needs for secrecy. The same law violates the First Amendment through its effective authorization of the Federal Bureau of Investigation to start investigations on US nationals as a way of their exercise of their freedom of speech.
Altogether, it is noted that the Patriot Act is unethical for the fact that it allows government to conduct more secret searches. For a long time, in the US and abroad, common law demands that governments cannot enter into people’s privacy without prior notice and that they should always give notices before the execution of the searches. In the US, the public has held the knock and announce principle through the Fourth Amendment. It is unethical that the Patriot Act amended the federal rules applicable to criminal procedure unconstitutionally that allowed government to carry out searches without prior notification of the subjects. In any case, some subjects are only notified when the search has been completed. From this perspective, therefore, it is arguable that investigating officials could enter someone’s house or other premises with search warrants when the occupants are not around, search their property, take pictures, and seize property in some cases and fail to tell the subjects later (Nemeth, 2017).
It is noteworthy that notice is a critical factor in the regulation of the power of the government since it forces the investigative officials to act in the open in addition to permitting the subjects to search for their rights under the constitution. For instance, stressing the need for search warranties allows the subjects to identify and notify concerned persons of the irregularities of a search warrant, which includes the ideas that police could be searching the wrong address or that the police could be exceeding the scope of the warranties, and other issues that the public should be protected from by the constitution. It is unethical, therefore, that the Patriot Act allows investigating officials to conduct their processes without considering the rights of the public that would be contained in other search warranties. When the government does not provide enough legal safeguards concerning surveillance of the citizens, it is arguable that it contributes to the violation the right to privacy that the constitution seeks to protect.
Too Much Governmental Power could be Abused
Apart from the issue of the violation of constitutional rights of the public, the Patriot Act results in unchecked power. The effects of unregulated governmental power to spy on the financial records of persons, their medical histories, their internet access records, patterns of travel, library usage, bookstore purchases, and any other forms of activity that leave records. Several issues are considered in arguing the unethical conduct of the government because of the provisions of the Patriot Act. It should be understood that the government is no longer mandated to give evidence that an agent of search orders is an agent of foreign power (Pike, 2015). Previously, this requirement was critical in the protection of Americans against the abuse of such authority. It is also notable from the cited author that the Federal Bureau of Investigation is not even needed to indicate reasonable suspicion that some identified records have links with criminal activity. This idea, as already mentioned, has foundations in the requirement for probable cause provided by the Fourth Amendment. In the new rule, the Patriot Act, the investigating officials are only required to indicate that the searches being conducted have a relationship with ongoing investigations on foreign intelligence and terrorism (Casey, 2007).
Another ethical consideration of the Act is the fact that the new powers of the government concerning investigation do not have any judicial oversight. The public is concerned with the fact that the government is only required to certify to courts—without having to provide proof or evidence—that some searches meet the broad criteria of the statute and the judges are limited in their power to reject such applications. The public is also wary of the fact that the Act could provide surveillance orders based partly on the activities of the First Amendment, including the books that they read, their online activities and Op-Ed articles that they have written to the have written in their lifetime (Jaeger, Bertot, & McClure, 2003). In addition, organizations or persons that are compelled to turn over their records are barred from disclosing such requests to other persons. For this reason, it is understood that some of the people subject to governmental surveillance never even realize the fact that their records have been analyzed by the government. The lack of checks on the power of the government to handle investigations could result in the abuse of this power.
An Analysis of the Patriot Act from the Perspective of the Department of Homeland Security
Of course, the most obvious ethical argument raised from the perspective of the Department of Homeland Security is the fact that it has the obligation of ensuring the security and privacy of Americans. In any case, the birth of the Patriot Act is in the wake of the September 11 terrorist attacks on Washington. In its moral responsibility, the government was obliged to providing security to citizens, and the Act was one of the most significant approaches if not the only one that would be viable—the idea was that government needed to be more serious in its definition and mitigation of terrorism. Therefore, the Department of Homeland Security considers the Act constitutional and ethical because it provides a means of legislating new issues, a way of obtaining data that the conventional approaches to investigation might have failed to deliver, and helps in dealing with terrorism.
The Patriot Act Provides a Means of Legislating New Issues
From the perspective of Homeland Security, the frequent recent technological advances have significantly challenged the restrictions of the Fourth Amendment and its jurisprudence. For this reason, it is notable that gaps in the interface between the government and the people occurred ( Alexander, 2014 ). The argument develops suggesting that the Patriot Act helped in filling these gaps through the provision of legislation that regulated electronic surveillance. Since the jurisprudence and legislation issues follow tit-for-tat patterns, the legislature’s response to unsavory decision through the creation of a new law resulted in an interpretation of the same laws through the lens of technological advances (Jaeger, Bertot, & McClure, 2003). Therefore, the argument dealing with the constitutionality of the Act—the fact that it should comply with the provisions of the Fourth Amendment—should consider that the new law broadens the legislative effects of the law, especially in dealing with modern issues.
The Act Avoids the Shortcomings of the Conventional Procedures of Investigation
In recognizing the role of government in protecting its people, the policymakers realized the need to better the investigative procedures of the intelligence units. For instance, according to (Casey, 2007), normal investigations suffer the problem of evidence collection since some of the targets are keen to frustrate investigation procedures. For instance, dealing with technological issues in investigation may not be easy—cybercrime is one of the hardest forms of crime to deal with around the country—because the nature of evidence is not the same as that in other forms of crime. In this case, as much as each citizen is entitled to a full enjoyment of the provisions of the Fourth Amendment, changes to the laws should always be sensitive to the contemporary issues that would make regulation a major problem. In fact, at the time of creation of the Act, it was thought that the normal procedures of investigation would not be enough to collect enough information on current and potential terrorists.
The Patriot Act Deals with Terrorism Better than Does Other Methods
One of the biggest elements of the Patriot Act is the fact that it broadened the definition of terrorism in the American perspective. When some Americans complain about the Act, they do so with consideration that it fails to distinguish between citizens and non-citizens ( Casey, 2007 ). However, from the perspective of the Homeland Security, they fail to understand that domestic terrorism is a new chapter in understanding the real danger of terror. Today, the country approaches the problem of terror with the idea that some of the criminals could be citizens of the country who could connect with foreigners to hurt the wellbeing of the US—as it was the case with the 9/11 attacks. An analysis of the issue of terrorism from the perspective of Homeland Security indicates a great need for legislation on activities of people both citizens and aliens. Therefore, the Patriot Act is significant to the country because it provides a better mechanism of dealing with terrorism than the conventional approaches to dealing with the same problem. While the public may find it unethical, the Department of Homeland Security considers the method of dealing with terrorism through the Patriotic Act ethical.
The analysis drawn from the perspectives of the public and the Department of Homeland Security indicate an ethical conflict. While the public considers that the government should respect the civil liberties in its exercise of the power to investigate crime, especially terrorism, the government thinks that it should update its legal framework for the same. Understanding the reality of the conflict may be attained through applying the Just War Theory, as this essay does in the succeeding section.
An Analysis of the Ethical Implications of the Patriot Act through the Just War Theory
The Just War Theory provides a means of appreciating the emergence of new policies and laws that some people might find uncomfortable. It should be noted that the fact that the theory is a philosophical idea means that it is applicable to other fields that may not always involve war, including the analysis of the ethical implications of the Patriot Act. As much as war is not always desirable, the theory suggests that some of them might be necessary and desirable. However, the proponents of this model put forward some conditions that would make a war desirable and necessary. First a just war is only waged by a just authority ( Casey, 2007 ). In other terms, the party that wages a just war should be competent enough to justify why they resorted to such an action. In relation to the case of the Patriot Act, politicians in the US through the legislature were concerned with the adoption of legislation on terrorism. Competence of Congress and Senate in passing laws is almost unquestionable—at least in the perspective of the public that looks up to the government for physical protection from terror. The procedures that the legislature undertakes in passing a Bill make the approving body just.
The second condition laid down by the theory is that of just cause. The American public needed to understand the real need for a change in the legislation on terror and related activities. The fact that the US was responding to terrorist attacks on the country, therefore, becomes a just cause for the adoption of a policy that would make the country safer. Dealing with crime needed the nation to enact laws that would identify terrorists from both domestic and foreign perspective. The intelligence units had identified the involvement of American citizens in the attack, which is why any new policies needed to deal with the domestic terror activities alongside the conventional understanding of terror—that this type of crime involves foreign planners and executors.
A just is also determined from the fact that it has a just intention. Everyone considers that the government has the moral obligation of protecting its citizenry from all forms of threats. Therefore, when Congress adopted the Patriot Act swiftly, it was acting within its mandate to prove to the public the capacity of their government to deal with terrorism. Since the Act meant to intensify the fight against terrorism, it had a just intention, which means that it was a just policy. The theory also suggests that a just war is only possible when it is the last resort. In the context of the US, the policy was not the last resort. Specifically, the policymakers realized the need to tackle terrorism through defining a framework that would address the issue for a long time as opposed to dealing with it only tentatively. In fact, the decision to deal with terrorism through policy change was one of the first options the country needed to have. However, because of its significance to protecting Americans, it can be argued that it was the last resort since the country explored other mechanisms before creating the law.
Conclusion
The US adopted the Patriot Act to deal with terrorism. Among the newest ideas of the Act was the inclusion of domestic terrorism in the definition of terrorism. For this reason, government stopped the fair treatment of its citizens in terms of investigating terrorisms cases. In the eyes of some Americans, the new law was not ethical since it violated the civil liberties and it meant that the government would act irresponsibly because of the lack of a system that would check its powers. However, the Department of Homeland Security considered the Act ethical since it indicated the power of government to deliver its responsibility of protecting the public from terrorist attacks. Therefore, in solving the ethical dilemma, one notes that the Just War theory indicates the ethical grounds of the new legislation of terror. Even though a section of the public might find the laws uncomfortable, according to the Just War Theory, the Patriot Act is ethical since a just authority engineered its adoption, it has a just cause, a just intention, and it was the last resort in the war against terror.
References
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