Weighing The Right To Privacy Against The Threat Of Terrorism

Introduction

Breathes there the man, with soul so dead,

Who never to himself hath said,

This is my own, my native land!

Whose heart hath ne'er within him burn'd

As home his footsteps he hath turn'd,

From wandering on a foreign strand?

If such there breathe, go, mark him well;

For him no minstrel raptures swell;

High though his titles, proud his name,

Boundless his wealth as wish can claim,--

Despite those titles, power, and pelf,

The wretch, concentred all in self,

Living, shall forfeit fair renown,

And, doubly dying, shall go down

To the vile dust, from whence he sprung,

Unwept, unhonour'd, and unsung.

-- “Lay of the Last Minstrel,” Sir Walter Scott

The excerpt from Scott’s poem above describes a traitor and it conveyed the concerns of the Committee on Un-American Activities (HUAC) in 1949. After World War II, Russia’s strength and the fear of communism gripped the nation. The land of the free did not embrace socialism or communism and any political view outside of democracy threatened the stability of our country. The HUAC felt so strongly about the matter that they included the quote on the final page of a report titled, “Review of the Scientific and Cultural Conference for World Peace, arranged by the National Council of the Arts, Sciences, and Professions.” Patriotism and nationalism are strong emotions that stir a society into action, both appropriate and inappropriate.

The concept of civil liberty often runs counter to the interests of national defense. The normal American has an understanding that the Constitution guarantees the right to certain freedoms, privacy being one of them. Contrary to that belief is the fact that the Constitution guarantees certain rights as long as those rights do not adversely affect the country’s interests or safety. Joe Public may have the freedom to have a shotgun but he does not have the right to own a bomb.

Throughout history, our government enacted measures to safeguard the nation against domestic and international terrorism and sedition. The intent behind suspending or reinterpreting personal rights inconvenienced a minority population for the greater good. Acceptance of monitoring the activities of the average citizen was achieved using the argument that law-abiding people have nothing to fear. The question about whether the monitoring was right or wrong was a question of patriotism. The same tones of dissent that fueled our country’s revolution fall silent in modern times out of fear. The fear of being unpatriotic or being labeled a “Red” or a “Hippie” put up obstacles to democracy. We suspended our ideal of fairness to combat a common enemy; during times of war, the task of winning public support has little resistance.

Since 2001, we have been involved with a “War on Terrorism.” Our government enacted the Patriot Act and amendments to the Foreign Intelligence Surveillance Act (FISA) of 1978. The American government concentrates its surveillance activities to combat terrorism. Legislation of surveillance or investigative practices provides the basis for monitoring the activities of groups and individuals suspected of activities that may support terrorism. While the methods have been confined to telephonic, electronic media, and financial activities of suspected terrorism advocates, they may inadvertently target all citizens in their intelligence gathering. This accumulation of data on U.S. citizens causes great concerns in how it is collected, controlled, and used.

The discussion concerning infringement upon private citizen’s privacy contrasts the nation’s efforts in preventing terrorism in protection of telephone records, monitoring electronic mail and internet sessions, and other warrantless surveillance measures. The misuse of surveillance and data collection reverberates through the judicial system, exposing abuse of power and encouraging change. The overall goal of any legislative action should serve to protect the country without compromising our standards and rights.

Civil Liberties and National Defense

The oft quoted “right to privacy” as guaranteed by the U.S. Constitution is a misnomer; the Constitution does not mention a right to privacy. The Supreme Court decisions have extended the expectation of privacy as a basic human right and protected under the ninth amendment. The fourth Amendment addresses search and seizure with proof of probable cause but there is a category of exception that allows for “special needs beyond the normal need for law enforcement” (Constitution, 1996). The government has the right to monitor communications, banking activities, and the actions of any citizen or visitor that may pose a threat to the nation’s security posture. Up until the events on September 11, 2001, the average citizen assumed only criminals would incur investigative practices and that a judge would require reasonable proof prior to issuing a warrant. Many Americans do not realize the history of citizen

surveillance predates this tragic crime.

There are legislative actions initiated over the last decade designed to protect national interests that suspend civil liberties. Many efforts began during periods of war and the suspensions were justified. During the early stages of World War II, the Special Committee on Un-American Activities was created to investigate Nazi propaganda and associated activities. Several governments in Europe fell to the German Nazis while fascist governments such as Italy overthrew others. This created a real threat of subversion of the U.S. Constitution (National Archives, 1989). In 1945, the committee evolved into the House Committee on Un-American Activities and it continued to track German Americans and performed a cursory check of the Ku Klux Klan. By 1950, it became the House Un-American Activities