2011/2012 September PF Topic: Security v. Liberty

Cost: 25.00

About the Product

Author(s) and/or Contributor(s): Ryan Hamilton, Dave McGinnis, Adam Torson, Nathan Zerbib-Berda
Description: Topic Analysis Essays and Evidence for the September Public Forum resolution on post-9/11 security. Issues discussed include the various post-9/11 policy initiatives that fall within the topic and their effectiveness, the various liberty interests implicated by those initiatives, and affirmative and negative strategies.

File Index
TABLE OF CONTENTS 2
TOPIC ANALYSIS BY RYAN HAMILTON 6
TOPIC ANALYSIS BY DAVE MCGINNIS 11
TOPIC ANALYSIS BY ADAM TORSON 17
TOPIC ANALYSIS BY NATHAN ZERBIB-BERDA 28
AFFIRMATIVE EVIDENCE 37
THE CONVENTIONAL WISDOM THAT THE PATRIOT ACT DRAMATICALLY EXPANDED GOVERNMENT SURVEILLANCE POWERS IS INCORRECT 37
BASIC INFORMATION ABOUT THE SENDER AND RECEIVER OF COMMUNICATIONS OVER A NETWORK IS NOT GENERALLY PROTECTED UNDER 4TH AMENDMENT BECAUSE PEOPLE FORFEIT THEIR REASONABLE EXPECTATION OF PRIVACY WHEN DISCLOSING SUCH INFORMATION TO A THIRD PARTY 37
EVEN BEFORE THE PATRIOT ACT PEN REGISTER LEGISLATION WAS WIDELY APPLIED TO THE INTERNET. THIS IS ACTUALLY MORE PROTECTIVE OF PRIVACY THAN THE ALTERNATIVE 38
THE PATRIOT ACT’S EXTENSION OF PEN REGISTER LAWS TO THE INTERNET ACTUALLY PROTECTS PRIVACY 39
THE PATRIOT ACT’S EXPANSION OF PEN REGISTER LEGISLATION TO THE INTERNET MERELY CODIFIED ALREADY EXISTING LAW 39
EXPANSION OF PEN REGISTER STATUTES TO THE INTERNET AFFORDS THE SAME PROTECTION PROVIDED TO PHONE CALLS AND MORE PROTECTION THAN LETTERS 40
THE PATRIOT ACT ACTUALLY EXPANDS PRIVACY PROTECTIONS ASSOCIATED WITH PERMISSIBLE DISCLOSURE OF INFORMATION OBTAINED THROUGH PEN REGISTER WIRETAPS 40
THE LINK BETWEEN THE PATRIOT ACT AND THE USE OF THE CARIVORE SURVEILLANCE SYSTEM IS TENUOUS AT BEST 41
THE PATRIOT ACT ACTUALLY INCREASES THE PRIVACY PROTECTIONS ASSOCIATED WITH THE USE OF CARNIVORE SURVEILLANCE SOFTWARE 41
THE PATRIOT ACT’S CREATION OF A TRESPASSER EXCEPTION TO THE WIRETAP ACT ACTUALLY ALIGNS THE LAW MORE CLOSELY WITH THE FOURTH AMENDMENT 42
THE PATRIOT ACT’S TRESPASSER EXCEPTION TO THE WIRETAP ACT ACTUALLY NARROWS THE SCOPE OF GOVERNMENT WIRETAPPING 42
POST-9/11 SECURITY MEASURES HAVE FOILED AT LEAST 23 TERRORIST PLOTS AGAINST THE UNITED STATES 43
THE UNITED STATES CANNOT DEFER RESPONSIBILITY FOR PROSECUTING TERRORISM TO THE INTERNATIONAL COMMUNITY 44
TRYING TERRORISTS IN U.S. DISTRICT COURTS CONTINUES THE INEFFECTIVE POLICY OF REGARDING TERRORISM AS A PURELY CRIMINAL MATTER 44
USING ORGANIZED CRIME AS A MODEL FOR DOMESTIC PROSECUTION OF SUSPECTED TERRORISTS RESTS ON FAULTY ASSUMPTIONS 45
U.S. FEDERAL COURTS ARE ILL-EQUIPPED TO TRY TERRORISM SUSPECTS BECAUSE OF THE LIMITATIONS OF EVIDENCE RULES, THE PROBLEM OF COMPROMISING INTELLIGENCE SOURCES, AND THE DIFFICULTY IN KEEPING PARTICIPANTS SAFE 45
TERRORISTS ARE NOT ANALOGOUS TO DOMESTIC CRIMINALS BECAUSE THEY COME FROM OUTSIDE THE POLITICAL COMMUNITY 46
THE CONSTITUTION PROTECTS U.S. CITIZENS AS MEMBERS OF A PARTICULAR POLITICAL COMMUNITY 47
POLITICAL COMMUNITY CONSISTS OF BOTH CITIZENSHIP AND TERRITORY. CRIME COMMITTED BY NON-CITIZENS OR ABROAD DO NOT IMPLICATE THE STRONGEST CONSTITUTIONAL PROTECTIONS 47
UNDER INTERNATIONAL LAW TERRORISTS ARE NOT ENTITLED TO THE SAME PROTECTIONS AS PRISONERS OF WAR 47
GUANTANAMO DETAINEES HAVE BEEN TREATED WELL ABOVE THE STANDARDS REQUIRED BY THE THIRD GENEVA CONVENTION 48
TRYING TERRORISM SUSPECTS WITH THE LOWER PROCEDURAL REQUIREMENTS OF A MILITARY TRIBUNAL IS CONSISTENT WITH THE THIRD GENEVA CONVENTION 48
MILITARY COMMISSIONS HAVE HISTORICALLY BEEN ESTABLISHED BY THE EXECUTIVE BRANCH TO TRY PEOPLE WHO FALL OUTSIDE THE JURISDICTION OF THE UNIFORM CODE OF MILITARY JUSTICE 49
POLLING SHOWS THAT PEOPLE BELIEVE THAT THE GOVERNMENT HAS MADE US SAFER SINCE 9/11 49
THE PUBLIC HAS SUPPORTED AND CONTINUES TO SUPPORT MAJOR POST-9/11 SECURITY MEASURES 50
POST-9/11 SECURITY HAS IMPROVED BY INCREASING COOPERATION BETWEEN LOCAL AND FEDERAL POLICE 51
INCREASING SECURITY MEASURES HAS NOT RADICALIZED THE AMERICAN-MUSLIM COMMUNITY 51
MUSLIM-AMERICAN SUSPICIONS OF ANTI-TERRORISM EFFORTS HAVE DECREASED SINCE 2007 EVEN THOUGH THEY HAVE EXPERIENCED SOME DISCRIMINATION 52
SINCE 9/11 THE FEDERAL GOVERNMENT HAS MASSIVELY REFORMED ITS HOMELAND SECURITY AND INTELLIGENCE GATHERING CAPACILITIES 52
THE KILLING OF OSAMA BIN LADEN REPRESENTS A SUBSTANTIAL VICTORY FOR POST-9/11 SECURITY INITIATIVES 53
COOPERATION BETWEEN THE INTELLIGENCE COMMUNITY AND LAW ENFORCEMENT HAS IMPROVED SUBSTANTIALLY SINCE 9/11 53
AIRLINE PASSENGER SCREENING HAS IMPROVED SUBSTANTIALLY SINCE 9/11 54
THE EVOLUTION OF TECHNOLOGY AND THE UNIQUE POSITION OF THE UNITED STATES MAKES STREAMLINING SURVEILLANCE AN IMPORTANT OPPORTUNITY 54
SIGNALS INTELLIGENCE IS DIVIDED INTO A SEVEN STEP PROCESS 55
NEGATIVE EVIDENCE 56
NATIONAL SECURITY DOES NOT JUSTIFY SACRIFICING FUNDAMENTAL CONSTITUTIONAL VALUES 56
LITTLE IS KNOWN ABOUT NSA WARRANTLESS WIRETAPPING OTHER THAN THAT IT MONITORS INTERNATIONAL COMMUNICATIONS BETWEEN U.S. CITIZENS AND SUSPECTED TERRORISTS 56
THE FOURTH AMENDMENT RIGHT TO PRIVACY IS FUNDAMENTAL AND IS CLEARLY VIOLATED BY WARRANTLESS WIRETAPPING 57
THE SUPREME COURT HAS HELD THAT WIRETAPPING TO COMBAT DOMESTIC CRIMINAL ORGANIZATIONS MAY ONLY BE DONE UNDER THE AUTHORITY OF A WARRANT 58
FISA PROVIDES A JUDICIAL DETERMINATION OF PROBABLE CAUSE TO AUTHORIZE SURVEILLANCE OF FOREIGN THREATS IN AN EXPEDITIOUS WAY 59
THE PATRIOT ACT LOWERED THE THRESHOLD FOR PROBABLE CAUSE PREVIOUSLY APPLIED UNDER FISA 59
EVEN IF THE PRESIDENT HAS THE INHERENT AUTHORITY TO GATHER INTELLIGENCE, THAT AUTHORITY MUST NONETHELESS BE EXERCISED WITHIN THE BOUNDS OF THE FOURTH AMENDMENT 60
NSA WARRANTLESS WIRETAPPING IS UNCONSTITUTIONAL. THE FOURTH AMENDMENT CANNOT BE SWEPT ASIDE FOR THE SAKE OF ADMINISTRATIVE EFFICIENCY 60
THE NSA STANDARD FOR PROBABLE CAUSE IN RELATION TO ITS WARRANTLESS WIRETAPPING PROGRAM IS IMPOSSIBLE BROAD AND THUS FUNCTIONALLY LEAVES LAW ENFORCEMENT UNCHECKED 61
NSA WARRANTLESS WIRETAPPING IS FUNDAMENTALLY INCONSISTENT WITH THE CHECKS AND BALANCES ASSURED BY A SEPARATION OF POWERS 61
A WARRANT REQUIREMENT IS NOT UNDULY BURDENSOME ON THE PRESIDENT’S ABILITY TO CONDUCT FOREIGN AFFAIRS 62
TO FIGHT THE WAR ON TERROR WE DO NOT NEED A NEW PARADIGM WHICH ESCHEWS THE RULE OF LAW IN THE NAME OF EXIGENCY 63
THE WAR ON TERROR MUST BE CONDUCTED WITHIN THE BOUNDS OF THE RULE OF LAW. THE PRESIDENT DOES NOT HAVE UNLIMITED AUTHORITY 64
INDEFINITE DETENTION CONSTRUCTS DETAINEES AS LESS THAN HUMAN 64
THE INDEFINITE NATURE OF STATE EMERGENCY JUSTIFIES THE SUSPENSION OF RIGHTS AND THE TYRANNY OF PETTY SOVEREIGNS FOR THE FORESEEABLE FUTURE 65
NEW REGULATIONS NOW ESCHEW HUMAN RIGHTS TO ALLOW INDEFINITE DETENTION AND QUESTIONABLE DETERMINATIONS OF DANGEROUSNESS 66
ENEMY COMBATANTS ARE DETAINED WITH UNPERSUASIVE OR NONEXISTENT EVIDENCE OF WRONGDOING 67
POST-9/11 RESTRICTIONS ON THE FREEDOM OF INFORMATION ACT REDUCE THE AMOUNT OF INFORMATION AVAILABLE TO THE PUBLIC 67
WEAKENING FOIA UNDERMINES GOVERNMENT ACCOUNTABILITY 68
THE PUBLIC’S RIGHT TO KNOW IS IMPORTANT DURING A TIME OF WAR, AND SO FOIA MUST BE RESPECTED 68
NEW RULES FOR FOREIGN INTELLIGENCE WIRETAPPING THREATEN AMERICAN PRIVACY AND SECURITY 69
BUILDING SURVEILLANCE TECHNOLOGIES INTO COMMUNICATIONS NETWORKS IS A RISKY PROPOSITION 69
THE PROTECT AMERICA FIRST ACT DOES AWAY WITH THE WARRANT REQUIREMENT FOR CERTAIN TYPES OF SURVEILLANCE, ALTHOUGH SURVEILLANCE TECHNOLOGY IS OFTEN INADEQUATE 70
LOOSENING RESTRICTIONS ON ACCESS TO CALL DETAIL RECORDS PRESENTS A SUBSTANTIAL RISK TO PRIVACY 71
IT IS DIFFICULT TO ASSURE THAT INTERNET COMMUNICATIONS UNDER SURVEILLENCE ARE NECESSARILY BETWEEN DOMESTIC AND FOREIGN COMMUNICATORS 72
THE FISA RULES WHICH WERE LOOSENED BY THE PATRIOT ACT WERE DESIGNED TO COMBAT PAST ABUSES OF SURVEILLANCE TECHNOLOGY 73
POST-9/11 IMMIGRATION DETENTIONS WERE EXPANSIVE, SECRETIVE, AND OFTEN UNCONNECTED TO THE THREAT OF TERRORISM 74
POST-9/11 IMMIGRATION DETENCTIONS WERE CRITICIZED HUMAN RIGHTS NGOS AND APPEAR TO BE RACIALLY SELECTIVE 75
POST-9/11 IMMIGRATION SWEEPS WERE CONDUCTED UNDER NEW PROCEDURES WHICH MADE THEM LITTLE MORE THAN A WITCH-HUNT 76
POST-9/11 THE UNITED STATES PLACED SUSPECTED TERRORISTS IN GUANTANOMO BAY OUTSIDE THE REACH OF U.S. COURTS, DENIED THEM DUE PROCESS, THREATENED INDEFINITE DETENTION, AND USED INTERROGATION TECHNIQUES THAT AMOUNT TO TORTURE 77
AS DEMONSTRATED BY THE EXPERIENCE IN IRAQ, IT IS IMPERATIVE THAT THE U.S. LIVE UP TO ITS VALUES IN ORDER TO SUCCESSFULLY COMBAT TERRORISM 77
TORTURE PRODUCES BAD INTELLIGENCE 78
TORTURE UNDERMINES COMMUNITY COOPERATION IN INTELLIGENCE GATHERING 78
NONCOERCIVE INTERROGATION METHODS WORK BETTER THAN TORTURE 79
THE FORMER HEADS OF THE 9/11 COMMISSION REPORT THAT THERE ARE STILL MAJOR GAPS SPECIFICALLY IN THE ABILITY TO DETECT EXPLOSIVES ON AIRCRAFT AND COORDINATE EMERGENCY RESPONDERS 79
THE FEDERAL GOVERNMENT HAS FAILED TO TAKE ACTION ON PLANS TO IMPROVE THE COMMUNICATIONS INFRASTRURE THAT IS CRITICAL FOR FIRST RESPONDERS DURING A TERRORIST ATTACK 80

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