Is the “War on Terrorism” Violating the U.S. Constitution?



The Constitution is the backbone and fundamental guardian of American values and ethics, and to suspend it at anytime would be to suspend the universal morals it establishes, and therefore is never appropriate to bypass, even for the reason of combating terrorism. Therefore, conducting a war on terrorism is legal so long as the ways by which it is conducted do not violate the Constitution. Unfortunately, some of the methods that the United States has chosen to use to administer the current war on terrorism violate the First, Fourth, and Fourteenth Amendments to the constitution. These illegal methods are the weapons of this war, and if your guns don’t work, you can’t use them. The United States must shelve this unjust arsenal and find new ways to defend their rights without breaking them in the process.

In order to evaluate the current “War on Terrorism”, it is necessary to define the term itself. Terrorism, as defined by the CIA in Title 22 of the US Code, Section 2656f(d), is “premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents, usually intended to influence an audience” (CIA 1). After the terrorist attacks on the United States Pentagon and the World Trade Center on September 11, 2001, President Bush decided that it was time to initiate direct action against all forms of terrorism in the world. The war on terrorism is a US-lead assault on all forms of terrorism, both domestically and internationally. According to Vice President Dick Cheney, “whatever action is required, whenever action is necessary we will defend the freedom and the security of the American people” (Vernon 1). There are three main issues of debate surrounding the constitutional legality of the war on terrorism: the right to privacy, the right of due process, and immigration procedure.

The Fourth Amendment of the United States Constitution guarantees “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” (US Constitution, Amendment IV). However, on May 30, 2002, Attorney General John Ashcroft issued “The Attorney General’s Guidelines on General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations”, part of which stated that “for the purpose of detecting or preventing terrorist activities, the FBI is authorized to visit any place and attend any event that is open to the public, on the same terms and conditions as members of the public generally”. It goes on to state that, “for the purpose of detecting or preventing terrorism or other criminal activities, the FBI is authorized to conduct online search activity and to access online sites and forums on the same terms and conditions as members of the public generally” (Ashcroft 26). This regulation gives the FBI far more power than it should be constitutionally allowed. While the Fourth Amendment requires searches to be reasonable, Ashcroft’s regulation permits online searches without probable cause. This is a direct violation of the Fourth Amendment (Amar 1).

One of the most important elements of the war on terrorism is the USA Patriot Act (an acronym for the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act), which was passed in October 2001 (Herman 1). The act grants law enforcement more liberal abilities to investigate and arrest suspected terrorists.

In 1968 Congress passed the Crime Control and Safe Streets Act. Title III of the act required probable cause to initiate electronic surveillance of citizens. The Patriot Act allows surveillance, such as wiretaps, to be commenced without probable cause. The act allows a practice called intelligence wiretaps. These are secretly authorized and allow wiretaps of any telephone the target uses, even if it is in someone else’s home (Herman 1). This directly violates the Fourth Amendment because it directly violates a citizen’s right to only be searched if there is probable cause.

One of the single most important Constitutional Amendments is the Fourteenth Amendment. This amendment not only guarantees that any person born in American is a US citizen, but it also guarantees that all people have the right to due process. Due process is difficult to define specifically. Often it is referred to as the “law of the land”, and in criminal cases it is generally perceived as the notion that defendants are innocent until proven guilty. For the purposes of this memo it will be defined as the entitlement of all citizens to equal protection and equal abilities under the law, as well as the rights to a fair trial and to know the charges that are being brought against oneself (Mount 1).

The United States has a long history of depriving citizens of their rights to due process. During the beginning of the 1950s, Americans saw the martial threat of the communist Soviet Union and felt their capitalist democracy in danger as well. This became known as the Red Scare. Fearing that the government could quickly change to that of communism, Senator Joseph McCarthy decided to take direct action. In 1950, McCarthy declared that he had a list of 205 members of the communist party in America. In direct violation of the 1st amendment right of free speech, and the 5th amendment protection against testifying against oneself, McCarthy led a campaign across America interrogating suspected communists and “blacklisting” them, disabling them from getting work. For the duration of this time when a great fear of un-American actions was present, the “House on Un-American Activities Committee” was established to investigate un-American and subversive activities. Operating under the Espionage Act, which prescribed fines and imprisonment for those who interfered with maters of national security, and the Sedition Act, which punished those who spoke against the government, the HUAC helped McCarthy’s investigation further. When they came to Hollywood to interview actors, ten who they interviewed refused to answer questions under the Fifth Amendment and were all sentenced to prison. Many others where tried and persecuted, including Julius Rosenberg and his wife who was executed for conspiracy to transmit classified military information to the Soviet Union. The Red Scare shows how in a time of fear radically immoral actions can be taken against the American people (Shrecker 1).

The United States is certainly in a time of fear once again, and consequently, the rights of due process are being stripped from citizens. People are being held indefinitely without charges being brought against them or the counsel of a lawyer. Such is the case for Yaser Esam Hamdi. Hamdi was born in Louisiana, but later moved to Afghanistan and to fight with the Taliban (Barisic 1). He was captured, and is now being held as an enemy combatant, meaning that he is not being granted due process. However, Hamdi is a United States citizen, and as one he should be allowed his Fourteenth Amendment rights.

There are 660 detainees being held as enemy combatants at the U.S. Naval Base on Guantanamo Bay, Cuba (Mariner 1). Even though some of them may actually be innocent, none are being allowed any of the basic constitutional rights expected of a prisoner. In fact, there have been numerous counts of mistreatment of detainees while at Guantanamo Bay. The current American judicial system can probably best be explained by Justice Sandra Day O'Connor, who admitted that Americans would have to learn to do with less civil liberties (Cassel 1). (Footnote 1)

Not only does the Patriot Act allow wiretaps, but it also permits the FBI to find out what books people borrow from the library, and the library is not allowed to tell the people being investigated that they are being investigated! This is an infringement of First Amendment rights. If people have to worry about what books they read out of fear of persecution from the government, and if librarians are explicitly not allowed to tell people that they are being probed by the FBI, then they are not being allowed their First Amendment rights to free speech (Kranich 1).

One of the most frightening effects of the war on terrorism is the change in immigration procedure that it has brought about. The Patriot Act gives the Attorney General copious abilities to detain and deport non-citizens without judicial review (Herman 1). This directly violates the precedent set in the decision of Marbury v. Madison, which established and justified the power of judicial review. Says professor Charles L. Black, “The prime and most necessary function of the Court has been that of validation, not that of invalidation. What a government of limited powers needs, at the beginning and forever, is some means of satisfying the people that it has taken all steps humanly possible to stay within its powers” (Linder 1).

The Act also prescribes the Attorney general the facility to designate domestic groups as terrorist groups as well as state that he has “reasonable ground to believe” that a non citizen presents a danger to national security and deport them. “A new war on immigrants would merely add to the chaos and desperation on which terrorism feeds” (Newman 1). These delegations of power deny people their rights to due process because non-citizens have rights under the constitution, as stated in the Bill of Rights that all persons, not citizens, are allowed those rights (ACLU 1).

Finally, the most critical question to examine throughout the “War on Terrorism” is whether it is really a war or not. During wartime, the president takes on a higher degree of power. However, if the United States is not actually engaged in a war, the inflation of executive power defies the system of checks and balances. While there are supposed to be three branches of government, the Executive Branch has absolute control over the war on terrorism. Says Tim Lunch, the director of the Project on Criminal Justice at the Cato Institute: “the power President Bush is wielding today is truly breathtaking. A single individual is going to decide whether the war is expanded to Iraq. A single individual is going to decide how much privacy American citizens are going to retain” (Milbank 1).

The War on Terrorism is much more of an executive action than an act of war. For this reason, the president should not have any increased jurisdiction than he usually would. However, by calling the action against terrorism a war, the president thereby obtains a significant amount of power and support to take whatever measures he must to win the war.

The United States’ War on Terrorism compromises three very important parts of American life: the right to privacy, the right of due process, and immigration procedure. Regardless of if there is necessity to take action against terrorism, the ways by which action is being taken are unconstitutional. Any time a person in America, citizen or not, is denied a right that the Constitution guarantees to them, an injustice has been served. There is never a time when it is appropriate to bypass the constitution. America needs structure in order to maintain a powerful country in the world. The Constitution is like a wall, and every right granted in it a brick. If just one of the bricks is taken away, the wall will weaken and eventually fall. The United States has a constitution for a reason, to set a standard of living for all Americans. During a war, no matter what kind or who’s fighting, the government must take necessary actions without breaking the foundation wall around which it was built.

In the case of the “War on Terrorism”, the battle is in defense of Democracy, yet ironically, the methods of guard go against everything that is being defended. Recollecting on this event it will be easy to see where “anti-terrorist” actions went wrong. However, it is much more difficult to observe these kinds of atrocities as they happen. America must learn from this experience and be prepared in the future to deal with national hazards effectively and constitutionally.

David Lempert
January 2004



Footnotes:

As of December 18th, 2003, the 9th Circuit Court of Appeals ruled that the prisoners should have access to lawyers (Kravets 1). The court also ruled that the president does not have the authority to hold a US Citizen as an enemy combatant (Neumeister 1).



Sources:

ACLU, “Immigrants and the War on Terrorism,” Writ, 9 Jun, 2003.
http://www.aclu-mass.org/general/immigrantswartwerror.html

Amar, Akhil Reed and Vikram David, “I Always Feel Like Somebody’s Watching Me: A Fourth Amendment Analysis of the FBI’s New Surveillance Policy,” Writ, 14 June, 2002.
http://writ.news.findlaw.com/amar/20020614.html

Ashcroft, John, “The Attorney General’s Guidelines on General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations” Writ, 30 May, 2002.
http://www.usdoj.gov/olp/generalcrimes2.pdf

Barisic, Sonja, "Judge Wants More Evidence in Case of American-Born Detainee," The Associated Press, 19 Aug, 2002.
http://www.law.com/jsp/article.jsp?id=1029171634662

Cassel, Elaine, “Anti-Terrorism’s Lengthy History and Current Abuses: A Review of Terrorism and the Constitution,” Writ, 11 Oct, 2002.
http://writ.news.findlaw.com/books/reviews/20021011_cassel.html

CIA, “Terrorism FAQs,” Writ, 12 April, 2002.
http://www.cia.gov/terrorism/faqs.html

Herman, Susan, “The USA Patriot Act and the US Department of Justice: Losing our Balances?” Writ, 3 Dec, 2001
http://jurist.law.pitt.edu/forum/forumnew40.htm

Kranich, Nancy, “The Impact of the US Patriot Act on Free Expression,” Writ, 5 May, 2003.
http://www.fepproject.org/commentaries/patriotact.html

Kravets, David, “Appeals court rules Guantanamo Bay prisoners should have access to lawyers,” Writ, 18 Dec, 2003.
http://www.sfgate.com/cgi-bin/article.cgi?file=/news/a/2003/12/18/national1448EST0657.DTL

Linder, Doug, “Exploring Constitutional Conflicts: Judicial Review,” Writ, 2003.
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/judicialrev.htm

Mariner, Joanne, “Indefinite Detention of Terrorist Suspects,” Writ, 10 June, 2002
http://writ.news.findlaw.com/mariner/20020610.html

Milbank, Dana, “In War, it’s Power to the President,” Writ, 20 Nov, 2001.
http://www.commondreams.org/headlines01/1120-01.htm

Mount, Steve, “Constitutional Topic: Due Process,” Writ, 114 Jul, 2003.
http://www.usconstitution.net/consttop_duep.html

Neumeister, Larry, “Appeals Court: President does not have power to detain U.S. citizen Padilla as enemy combatant,” Writ, 18 Dec, 2003.
http://www.sfgate.com/cgi-bin/article.cgi?file=/news/archive/2003/12/18/national1214EST0575.DTL

Newman, Nathan, “A War on Immigrants to Fight the War of Terrorism?” Writ, 4 Oct, 2001.
http://www.commondreams.org/views01/1004-03.htm

Shrecker, Ellen, “The Age of McCarthyism: A Brief History with Documents,” Writ, 30 Jun, 1996.
http://www.english.upenn.edu/~afilreis/50s/schrecker-age.html

Vernon, Wes, “Cheney: Iraq Part of War on Terrorism,” Writ, 31Jan, 2003.
http://www.newsmax.com/archives/articles/2003/1/30/134415.shtml