The Cochran Firm Legal Blog

Suspected Terrorists’ Rights Versus Public Safety

By Caleb Thurston, Intern

The Cochran Firm

There is widespread confusion about which civil and privacy rights extend to individuals suspected of terrorist activity. According to the matter of Boyd v. United States, the United States Supreme Court held that although the right to privacy is not expressly stated, it is implied from the first, fourth, fifth, and ninth amendments.

United States v. Katz is the modern case that is applied by courts facing fourth amendment privacy rights issues. Here, the defendant utilized a public phone booth to communicate gambling information from Los Angeles to Boston. FBI agents planted a listening device on top of the telephone booth and recorded the petitioner’s phone conversations after extensive surveillance. The Court held that “the fourth amendment protects people not places,” and the defendant’s motion to suppress that evidence was granted. According to the analytical test employed in Katz, an act of government agents is a violation of an individual’s right to privacy when, (1) the individual exercised a subjective expectation of privacy, and (2) that expectation of privacy must be one that society is prepared to accept as objectively reasonable.

Following September 11^th attacks on the U.S., American citizens willingly gave up some privacy rights acknowledged by Katz to allow the government to effectively prevent future terrorist attacks.  As a result, only six weeks after the attacks, Congress introduced the USA PATRIOT Act of 2001. This introduced changes to over fifteen U.S. statutes which George W. Bush signed into law forty-five days after the attacks.

The Patriot Act allowed the federal government to strengthen national security by expanding its surveillance and investigative authority. The act contained many provisions that were originally rejected by Congress but then immediately passed without debate following the events on September 11^th. Some of these provisions violated privacy rights of American citizens in exchange for enhancing national security.

Under the Patriot Act, the government had a lower burden of proof for warrants and was only required to have reasonable suspicion rather than probable cause. This increases the likelihood that warrants will be used improperly where an officer has no real suspicion of criminal activity. These types of issues require balancing the privacy and civil rights of suspected terrorists with the public right to safety. If the two are relatively equivalent the balance is tilted toward public safety.

On December 16, 2005, fifteen days before the expiration of the Patriot Act, White House Press Secretary released a statement demanding a minority of Senators to stop delaying the reauthorization of key provisions. It re-emphasized the importance and effectiveness of the act and stated that the Senate is responsible for making sure the nation is not without this “critical law for even a single moment.” The Executive branch feared the filibuster would allow the act to expire, leaving the nation temporarily unable to investigate possible terrorism threats.

The Act was finally reauthorized just before its expiration but not without certain modifications. Since the reauthorization of the new Patriot Act, significant issues surfaced about the lack of oversight of NSA abilities to investigate so called national security threats. The Foreign Intelligence Surveillance Court gave the NSA secret approvals authorizing “sweeping data collection,” of records on all U.S. phones.  This violated Section 215 of the Patriot Act which only allows the collection of data that could be “relevant” to terrorism.

The proposed USA Freedom Act would “end the bulk collection of phone records, limit the NSA’s power and tighten oversight.” Republican Congressman Rogers and Democratic Senator Feinstein are fighting against the USA Freedom Act to protect NSA’s surveillance and investigative authority. They introduced another bill which would promote transparency while still supporting sweeping data collection. If the USA Freedom Act is not passed, intelligence could completely lose their power when the Patriot Act expires again in 2015.

Even with the most diligent legislative action and the most objective executive action, there must be review under the doctrine of the separation of powers. The oversight of each branch’s actions is by process of Judicial Review. Without this judicial power, the other two branches of government could become too powerful. It is essential that the courts conduct a ser review seriously and diligently. During this process an independent federal magistrate will conduct an ex parte review to determine whether there is sufficient information to rise to reasonable suspicion and probable cause. Additionally, to increase transparency, an annual report redacting the specifics should be provided to the senate judiciary committee listing type and quantity of warrants issued or denied throughout the year. This process ensures the integrity of each branch of government as well as the due process rights of the suspect and the public’s safety.