Surveillance of Americans without their knowledge and consent has been a debate that has largely sparked different emotions from several corners and schools of thought. The security agencies have always validated their actions by stating that the surveillance is meant to keep America safe. After 9/11 terrorist attack more than a decade ago, America came to a realization that there was indeed a need to take law enforcement to the next level and to be able to pre-empt what the terrorist are planning even before they execute it. To do this, since America is a country that is founded on freedom, equality and the rule of law, the government of the day then sought to enact the Patriot Act. This is a law that spelt out the harshest of sentences to the enemy combatants of the state, it gave sanction to extra ordinary rendition which paved the way for the creation of Guantanamo Bay as a terrorist prison (Geva, Garcia 2014). In as much as the Patriot Act was created in favor of the people, the Law enforcement is misusing the Patriot Act against its own people that it was created to “protect”
Indeed, it cannot be argued any further that although the particular Act has been a great milestone in securing America, it served to open a Pandora’s box. The drafters of the Act did not envisage the ever changing technological times and the powers the Act gave the law enforcement agencies such as the Federal Bureau of Investigation (FBI), Department of Homeland Security (DHS) and The Central Intelligence Agency (CIA) and other Anti-Terrorism law enforcement agencies in the country (Ramasastry, 2014).
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The Right to Privacy
The right to Privacy is among the Amendment rights that is enlisted among the most cherished rights in America. The law recognizes that everyone has a right to privacy which includes not to have unauthorized entry into their houses or property without probable cause, not to have their property searched and seized without a search warrant and the right not to have their personal information leaked, released or accessed without their express consent.
Jonathan Witmer Rich in his paper Flaws of the Sneek and Peek Statute and how to fix it brings out the blatant flaws in the Patriot Act that allow law enforcement agencies to tip the scales of justice to their favor in total disregard of the rule of law. For instance, Section 213 of the Patriot Act which deliberately allows judges to delay the notification of search warrants on suspected person to give the law enforcement agencies an upper hand in catching the suspects dead in their tracks. He argues that this totally defeats the right to a fair trial as it amounts to the court of law already passing judgment against the suspect without a fair trial in a court of law with competent jurisdiction and with a jury of the suspect’s peers (Rich, 2014).
Even though the Patriot Act states that the law enforcement agencies must state the probable cause in order to be granted a search and seizure warrant, Witmer argues that this is barely enough to promote fairness since the warrants are issued ex-parte and at times at odd hours in the night which are out of working hours and the suspect or subject of the search warrant is not notified until the agents knock on their door. He further reiterates that the Patriot Act is not only limited to Terrorism offences but also goes to other federal offenses including misdemeanors.
From the above assertions by the author, it could not be put any better because the Patriot Act was formed to keep America safe but not to trade their privacy for safety. Such loopholes in the law will continue to be exploited by the law enforcement at the expense of the American people and this will continue to be so if the said loopholes are not checked.
Culture of Lack of Accountability
It is a well-recognized point that every person in a position of power must be held accountable for their actions and to their electorate. All the theories of governance from Carl Marx to Kelsen’s theory all envisage even the slightest test of accountability of persons in power. True to the words of the founding fathers of America Abraham Lincoln that ‘ Power corrupts and absolute powers corrupts absolutely.’ This phrase is still used across the world to enable all the powers of leaders or those in authority to be checked hence the creation of a system of checks and balances (Wilkes, 2002).
The misguided use of the Patriot Act by law enforcement agencies has not only gone against all the above but proceeded to open doors of anarchy that defy every single rule of accountability. Because of this law Pharmaceutical companies collect information of their customers. Social media moguls such as facebook and twitter collect personal data and auction them to the highest bidder as has been seen with cases such as facebook and Cambridge Analytica scandals. One fails to realize that these crimes may not seem serious as such but one can only imagine if such information is collected and ends up in the hands of the very same enemies that the law enforcers are trying to protect America from. This is evident in the recent wikileaks and Snowden scandals that have revealed the National Security Agency (NSA) illegal surveillance of Americans. Such information could be used to sabotage economies and tip the hand in elections (Smith, Clayton, 2015).
Disregard to the Rule of Law
The right to Privacy is a right that is celebrated universally. International instruments such as the Universal Declaration on Human Rights (UDHR) all acknowledge this right and its significance in the society. By running illegal surveillance of its own citizens in the name of keeping them safe from Terrorists cannot validate the blatant disregard of the rule of law that such acts portray. In all these, one then asks oneself; where does the buck stop? With whom? In any given society the buck stops with the law. However, if the law is enforcing at the convenience of men then men have become law and this is dangerous to any people (Smith, Herron, 2009).
Creation of Domestic Terrorism cells and Hacktivism
By virtue of running illegal wire taps and surveillance of Americans and access to personal data, the government has been forced to create of several hacker groups which hack secure government facilities and access highly classified information and release it to the public and at times sell to the highest bidder. The Patriot Act has ended up creating by- products known as whistleblowers; these include Eric Snowden and Julian Assange to mention but a few. This groups have continuous accessed information acquired from illegal surveillance operations and released them placing Americans even in more danger than they already were by breach of their privacy. This has had far reaching consequences on the war against terrorism in America (Vans 2012).
Conclusion
As stated above, this subject is highly emotional and controversial and has spurred criticisms and accolades in equal measures. However, examining this from a strict legal point of view, it is not only illegal but also immoral to run surveillance against the American people without their consent and knowledge all in the name of National Security. If such acts are not stopped and the law streamlined to seal such loopholes, America will continue to destroy its society and everything it stands for from the inside out.
Bibliography ;
Garcia, B. E., and N. Geva. “Security Versus Liberty in the Context of Counterterrorism: An Experimental Approach.” Terrorism and Political Violence , 28(1), 2014, 30–48.
Jenkins-Smith, H. C., and K. G. Herron. “Rock and a Hard Place: Public Willingness to Trade Civil Rights and Liberties for Greater Security.” Politics & Policy , 37(5), 2009, 1095–129.
Ramasastry, A. “Reform the Patriot Act to Ensure Civil Liberties.” CNN , April 20, 2005.
Smith, V. K., C. Mansfield, and L. Clayton. “Valuing a Homeland Security Policy: Counter measures for the Threats from Shoulder Mounted Missiles.” Journal of Risk and Uncertainty , 38(3), 2009, 215–43.
Van Es, R. “Public Opinions on Security and Civil Liberties in America after the Terrorist Attacks of September 11, 2001.” Social Cosmos , 3(1), 2012, 118–23.
Wilkes E. D. Sneak and Peek Search Warrants and the USA Patriot Act. University of Georgia Law Review, Vol 35 Issue 2, 2002.
Witmer J,W. “ The Fatal Flaws of the Sneak and Peek warrant and how to Fix it,” Case Western Reserve Law Review, Vol 65 Issue 1 2014.
