Balancing Administration of Justice and Security
The balance of the criminal justice system is in a continual loop evolving from past mistakes while addressing current security conditions, a point paper by Chris Grollnek.
Balancing administration of justice and security is in a continual loop evolving from past mistakes while addressing current security conditions. During the inception of the Founding Fathers principles and ideas, the country knew guaranteeing freedoms would be the secret to a powerful nation. As events unfold throughout history, Constitutional guarantees continue to erode until defenders of Civil Rights make challenges. This process of checks and balances is the best on record anywhere in the world. Although the court system has flaws, and legal challenges set the course and direction for the future of civil liberties, identifying anything better continues to elude the brightest minds. Striking the appropriate course to maintain Civil Liberties in respect to the Constitution and Bill of Rights is a hurdle that governmental agencies continue to address. Maintaining a safe society requires understanding the Constitution and its foundation as well as the needs for the greater good.
Balancing Administration of Justice and Security
American society enjoys freedoms seldom seen throughout other portions of the world. Strong moral principles that continue to evolve from the Constitution of the United States sets this country apart from any other. Attempting to interpret the Constitution with lack of understanding specific guarantees, the Bill of Rights defines and outlines personal guarantees for individuals. The guarantees against government intrusion and respect for authority to maintain a safe environment began the philosophers writing theories still in practice.
Through the examination of the First Amendment to the Constitution it demonstrates the founders’ desires of individual’s freedom to be paramount. Remaining mindful of freedom of speech, religion, the press, and assembly, the First Amendment charts the path to proceed for individual rights. The spirit of the Amendment addresses individual guarantees to petition the government for solutions to injustices. The Amendment mandates that Congress shall make no law to infringe upon these rights. This single Amendment is critical to understand for the criminal justice system as the people can enforce and protect themselves from governmental intrusion. This Amendment addresses a citizen’s sovereign right to live freely and behave in a rational manner (Cornell University, 2011).
The discussion of personal liberties in this society requires consideration of the Fourth Amendment to guarantee freedom from unreasonable search and seizures. The Bill of Rights reads the following regarding the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, [sic] shall not be violated [sic], 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 [sic] to be seized.
Preserving privacy and unreasonable searches without probable cause protect persons’ individual rights to live without fear of governmental intrusion without cause. Protection under the Fourth Amendment extends to minimize the possibility of the government arbitrarily seizing property as evidence without proper court authority (Cornell University, 2011).
Extracting the main ideas relating to this essay from the Amendments is prudent in establishing balance. The country desperately seeks protection and safety at the expense of eroding liberties yet to be in a position to challenge. Modern time issues require a look to the era of 1970 and a philosopher identifying his work of “Justice as Fairness.”
Theories of justice have been in existence for hundreds of years. Some were more complex than others and few could integrate into times as societies evolve. John Rawls, a former philosopher and theorist, wrote a theory in 1971 that began to resonate in understanding why people need protection. The “Justice as Fairness” theory is dominant to understanding the needs for security. Entitlements and values would define what societies beliefs were and the relationship between both security and police. His writing proposes that only just or fair principles are acceptable that in turn excludes the “grey” area. Rawls believes that morale people possess both a sense of good and a sense of justice that they can act on as a principle rather than emotion (Banks, 2009, p. 345).
Rawls hypothetical scenario is complex and incorporates several concepts that do not apply to this essay. Summarizing Rawls theory of Justice as Fairness, people from their raw moral fiber want to look after others as they look after themselves. This establishes the fairness mark to assist in determining mankind’s choice for fairness. Basic human rights and freedoms assist in establishing fairness, following an outline such as the Bill of Rights would be prudent for fairness. People choose fairness for the perception of happiness as their choice in the matter because it has a significant impact on the rationale. People who abide within legal boundaries make a conscious decision to do so exercising their choice (Illinois State University, 2007).
The evolution of modern law enforcement and security practices continue to excel at a rate courts have trouble keeping pace. The terrorist attacks on September 11, 2001 brought the country together through fear and the need to exact justice. With bravado high and the spirit of the red, white, and blue uniting toward the goal of resilience, society sought justice by any means. Communities were demanding an increase in measures to provide security and enforcement with little regard to governmental intrusion. Creating a national fear on a magnitude of that scale is difficult to believe anyone could fathom. The actions following the attacks would forever change the way this country believes in its freedoms. Enter, “The Patriot Act.”
The Government made adjustments to the way they prosecute and pursue acts of terrorism in the United States and abroad following September 11, 2001 (9/11). The tipping point of allowing the act to pass was the sales pitch that the country could not be safe without infringing on Constitutional rights. The argument became one of the greater good, for the greater number more important than the letter of the laws found within the Constitution. Three portions relevant to the changes of Constitutional Guarantees are arguably the most evasive because the adoption of the Bill of Rights.
According to the ACLU (2011), the following sections of the Patriot Act diminish the rights of the people beyond reasonable security needs:
Section 215 of the Patriot Act authorizes the government to obtain “any tangible thing” relevant to a terrorism investigation, even if there is no showing that the “thing” pertains to suspected terrorists or terrorist activities. This provision is contrary to traditional notions of search and seizure, which require the government to show reasonable suspicion or probable cause before undertaking an investigation that infringes upon a person’s privacy. Congress must ensure that things collected with this power have a meaningful nexus to suspected terrorist activity or it should be allowed to expire.
Reading the first provision of the act itself demonstrates the ability to investigate anyone who could be a suspect in a terrorism case. The Fourth Amendment specifically prohibits this type of ambiguous intrusion; however, in the name of “protection” this act is in full tilt.
The next portion to evaluate is the section relating to wire-tapping. The provision is most commonly written as the “John Doe wiretap” completely straying away from the rights to privacy and unlawful intrusion specifically found within the Fourth Amendment. Section 206 reads (2011):
Section 206 of the Patriot Act, also known as “roving John Doe wiretap” provision, permits the government to obtain intelligence surveillance orders that identify neither the person nor the facility to be tapped. This provision is contrary to traditional notions of search and seizure, which require government to state with particularity what it seeks to search or seize. Section 206 should be amended to mirror similar and longstanding criminal laws that permit roving wiretaps, but require the naming of a specific target. Otherwise, it should expire.
The ACLU writes at the end of each provision a blanket statement; “Otherwise, it should expire.” Blanket statements such as these identify the issues within acts that have societies best intentions in the forefront of protection yet forget the rules and laws from which citizens receive freedoms.
The last section of the Patriot Act in need of re-evaluation is the following (2011):
Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004, or the so-called “Lone Wolf” provision, permits secret intelligence surveillance of non-US persons who are [sic] not affiliated with a foreign organization. Such an authorization, [sic] granted only in secret courts is subject to abuse and threatens our longtime understandings of the limits of the government’s [sic] investigatory powers within the borders of the United States. This provision has never been used and should be allowed to expire outright.
Knowledge of the utilization of this provision does not exist making it nil and ineffective. The case to allow this one stand-alone section expires and perhaps rewrite the section in its entirety is plausible (ACLU, 2011).
The need for the government to conduct investigations by using private, public, federal, state, and other means remains an obvious necessity. The question of the need to provide safety under the premise of the greater good remains whole and true on its face. Violating rights of citizens and degrading the Constitutional guarantees enacted, as founding principles is not the right course of action. The absence of a sound policy and investigative track to protect society should not allow the intrusion into personal freedoms in the name of safety.
The balance between solid rights, sound investigations, and protection of citizens remains a volatile topic. Respecting the rights of individuals while investigating plots of mass destruction is not impossible, it is simply not a challenge the people have put on politicians. The final example for this essay of the erosion decency in the name of protection is the Transportation Security Administration (TSA). Pre 9/11, people would board planes after passing through a magnetometer and possibly a brief pat-down if a suspected weapon could be present. Instead of conducting criminal profiling techniques, in-depth questioning, and screening of passengers, the TSA has made adjustments in the screening process. People who choose (it is a choice to travel by air) to fly subject themselves to near sexual assault if there is one of many random selections for advanced screening. Understanding racial profiling is the not the key, as this is the same thing as violating the Constitution in whole, there are other methods to employ just as effective (Amitay, 2011).
Changes to security and enforcement are evolving daily through court decisions and practices set forth by the government as a reaction to tragic events. Balancing the administration of justice and security at times, these “practices are not “best-practices” leaving much room for civil liberty lawyers to become involved, slowing down the progress to reduce tragedies in the future. The message within this research essay agrees that removing the Constitutional guarantees from the equation can thwart any plots against public safety. Once this becomes an acceptable practice in whole to enough people in power, we as a country will lose our ethos and the demise of our democracy will follow.
ACLU. (2011). Patriot Act. Retrieved from http://www.reformthepatriotact.org/
Amitay, S. (2011, June 9). House Committee Report/Investigation Supports Private Screening at Airports. Valiant. Retrieved from http://www.valiant.com/security/house-committee-reportinvestigation-supports-private-screeners-at-airports/
Banks, C. (2009). Criminal Justice Ethics: Theory and Practice (2nd ed.) (p.345). Thousand Oaks, CA: Sage Publications
Cornell University Law School. (2011). U.S. Constitution. Bill of Rights. Retrieved from http://topics.law.cornell.edu/constitution/billofrights
Illinois State University, College of Arts & Sciences Information Technology. (2007). Three Theories of Justice: Utilitarianism, Justice as Fairness, and Libertarianism. Retrieved from http://lilt.ilstu.edu/pefranc/3-ts%20of%20justice.htm
Balancing Administration of Justice and Security
Written by Chris Grollnek, MS/AJS
Not to be copied, used, or redistributed without the expressed consent of said party. All rights reserved. www.ChrisGrollnek.com (2012)