Our unstable world has left many American’s to consider the costs and benefits of national security and civil rights. This paper briefly reviews the States Secret Privilege, Foreign Intelligence Surveillance Act (FISA), and The Patriot Act. In response to the attacks to our financial capital in New York and our nation’s defense department, The Patriot Act was enacted. These expansive powers granted to protect our security are examined in terms of how the impact upon potential limitations to our Constitutional Rights.

1. Freedoms Forsaken 1
Running Head: FREEDOMS FORSAKEN
Freedoms Forsaken
By Andrew Ciccone
Baruch College
Theories of Persuasion
Professor Eric Gander
Com 9651 – Fall 2008

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Abstract
In response of the attacks of September 11 and to combat future attacks of terror, the government
has taken aggressive steps to investigate and ensure our nations security. Unfortunately, it has
been deemed necessary to sometimes circumvent the attorney-client privilege and other civil
liberties to enable law enforcement to conduct warrantless searches. Our unstable world has left
many American’s to consider the costs and benefits of national security and civil rights. This
paper briefly reviews the States Secret Privilege, Foreign Intelligence Surveillance Act (FISA),
and The Patriot Act. In response to the attacks to our financial capital in New York and our
nation’s defense department, The Patriot Act was enacted. These expansive powers granted to
protect our security are examined in terms of how the impact upon potential limitations to our
Constitutional Rights.
Freedoms Forsaken
Over the course of our nation’s history our civil liberties have been reevaluated during times of
national crisis in order to protect our national security. Although it is difficult to ascertain the
balance between liberty and safety, it is often true that they go hand in hand. Richard Posner
(Source, ) contends, "they are both important, and their relative importance changes from time to
time and from situation to situation." The law is not absolute, however malleable it may be, it is
pragmatic rather than dogmatic. “Fiat iustitia ruat caelum” (let justice be done though the
heavens fall) is dangerous nonsense (Lavin & Stossel 2002).

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The attacks of 9/11 precipitated the enactment of The Patriot Act, which enables our intelligence
community to close critical intelligence gaps that existed before the Act became law. The Act
shifts the balance between civil liberties and national security. A brief overview of some of our
nation’s surveillance legislation is useful to explicate the expansive powers law enforcement has
been granted in order to combat the lawlessness of drug cartels that sell contraband here in our
neighborhoods, the threat of terror here, and other clandestine activities that undermine this great
nation.
The State Secrets Privilege allows evidence to be excluded from a legal case if the government
deems that the information might endanger our national security. The court rarely conducts an
examination of the evidence to evaluate whether there is sufficient cause to support the use of
this doctrine. This governmental privilege arguably necessary does infringe upon our Fourth
Amendment rights. The Fourth Amendment prevents arbitrary and oppressive interference by
law enforcement officials concerning the privacy and personal security of individuals. Any
warrant must be judicially sanctioned for a search or an arrest, and must be supported by
probable cause. As a general rule of law, evidence may not be used if improperly obtained.
"No free man shall be taken or imprisoned or disseised of his Freehold, or
Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed,
nor will we go upon him nor send upon him, except by the lawful judgment of his
peers or by the law of the land." -- Magna Carta A.D. 1215, King John of
England

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Use of the State Secrets privilege in courts has grown significantly over the last twenty-five
years infringing upon our Constitutional Rights. Since the decision in United States v. Reynolds
(1953) and the election of Jimmy Carter, in 1976, there were four reported cases. Between 1977
and 2001, there were a total of fifty-one reported cases in which courts invocated the privilege
(Pallitto & Weaver 2005).
In 1978 the Foreign Intelligence Surveillance Act (FISA) was enacted to regulate U.S.
government agencies' carrying out of searches and surveillance, regarding the gathering of
foreign intelligence information. The Supreme Court held in Katz v. United States (1967), that
the monitoring and recording of private conversations constitutes a "search" for Fourth
Amendment purposes, and therefore the government must obtain a warrant before domestic
wiretapping can be engaged in. The court has approved routine warrantless search and seizures,
when there is probable cause that a criminal offense has been or is being committed. Exigent
circumstances arise when law enforcement has reasonable grounds to believe that there is an
immediate need to protect the citizen’s lives and their property. The increase evocation of the
State Secrets Privilege is indicative of greater willingness to assert the privilege than in the past
(Pallitto & Weaver 2005).
The U.S. Patriot Act strengthens the intelligence-gathering community’s ability to combat
domestic terrorism. The Patriot Act was enacted in 2001 to protect our nation from acts of terror
that violates federal or state criminal law and is dangerous to human life. Facts about The Patriot
Act expanded the practice of using National Security Letters (1978) – administrative subpoenas
that require disclosure of individual’s and organizations private and proprietary documents. Law

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enforcement officers may investigate U.S. citizens, regardless if the individual under
investigation or has committed a crime. An agency need not obtain a warrant before searching
records. The broad consensus among legal scholars and national security experts contend that
the warrantless domestic spying program is unconstitutional (Lichtblau & Risen 2006).
Life during War Times
The American Civil Liberties Union (ACLU) brought suit against the National Security Agency
(NSA) regarding the constitutionality of the so-called "Terrorist Surveillance Program" (TSP) as
a violation of federal law. It is not clear when the NSA began the highly secret foreign
intelligence program, since named the TSP, to intercept international telephone and Internet
communications of persons working and living in the United States. The spy program is
undertaken without obtaining warrants and it is argued that it is therefore not within the
parameters of the Foreign Intelligence Surveillance Act.
The government argued that the lawsuit should be dismissed or alternatively be granted summary
judgment based on the State Secrets Privilege and the plaintiffs' lack of standing. The District
Court granted summary judgment for the plaintiffs, ruling that the TSP specifically involving
"international telephone and internet communications of numerous persons and organizations"
within the United States of America, was unconstitutional and illegal, and ordered that it be
halted immediately. An order was stayed pending appeal as no ruling was made on the alleged
NSA database of domestic call detail records, citing the States Secrets Privilege. The District
Court’s opinion examined the defendant's claim over State Secrets, standing, and the President's
wartime claim finding that the NSA surveillance Program violated statutory law in regard to the

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FISA. Furthermore, it was concluded that the NSA program violated the Constitution in regard
to the First Amendment, Fourth Amendment, and Separation of powers Doctrine. The U.S.
Supreme Court, "without comment, turned down an appeal from the [ACLU] to let it pursue a
lawsuit against the program that began shortly after the Sept. 11 terror attacks," – (ACLU v.
NSA 2007). The constitutionality of this decision does not adequately ensure nor protect
individual’s rights, as it is unreasonable for the courts to dismiss this case given that the evidence
is deemed inadmissible.
In another case involving the NSA (Hepting v. AT&T 2006), a former AT&T engineer, came
forward alleging that he simply does not, "believe their claims that the NSA's spying program is
really limited to foreign communications or is otherwise consistent with the NSA's charter or
with FISA . . . unlike the controversy over targeted wiretaps of individuals' phone calls, this
potential spying appears to be applied wholesale to all sorts of Internet communications of
countless citizens." The AT&T engineer with the authorization of his employer assisted the
NSA by installing a system in its San Francisco switching center, that was capable of monitoring
billions of bits of Internet traffic a second, including the playback of telephone calls routed on
the net. Such technological monitoring in effect captures, processes, and analyzes data not only
from foreigners who access these communication lines but all American citizens. The class
action law suit alleges that AT&T permitted and assisted the NSA in unlawfully monitoring the
communications of the United States, including AT&T customers, businesses and third parties
whose communications were routed through AT&T's network, as well as Voice over IP
telephone calls routed via the net. The case is separate but related to, the NSA warrantless
surveillance program in which the federal government agency bypassed the U.S. courts to

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monitor domestic phone calls without warrants. The courts in 2006 rejected a federal
government motion that invoked the State Secrets Privilege argument that any review of this case
would undermine our national security. The case was immediately appealed to the Ninth Circuit,
Where it has been argued and awaits a decision.
Before any Ninth Circuit decision, the case was returned to the District Court in light of the
amendments to FISA in July of 2008 that granted retroactive immunity to telecommunications
companies for past violations of FISA. Subsequently the government moved to dismiss the
Hepting litigation. The Hepting plaintiffs opposed the motion to dismiss, asserting that the FISA
Amendments Act's retroactive immunity provision was unconstitutional. The matter is under
review. The courts have seriously jeopardized the rule of law, there is an alarming lack of
accountability to ensure that individual’s rights are protected and upheld.
The final case involves the constitutional issue of freedom of information, bearing on the public's
right to know. The right to know is a perfect example of a "liberty" in the sense of being a
fundamental freedom or piece of substantive due process made up from other rights like free
press, right to education, and so forth. It is intimately involved with the forwarding or advancing
of civil liberties. Various “public interest” groups sued the Department of Justice seeking the
release of information concerning certain persons detained in the wake of the 9/11 terrorist
attacks. The claim brought to the court’s attention concerned the Freedom of Information Act
(FOIA) requesting information included: detainee names, their attorneys, dates of arrest and
release, locations of arrest and detention, and reasons for detention. To support its FOIA request,
plaintiffs cited press reports about mistreatment of detainees, which plaintiffs claimed raised

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serious questions about “deprivations of fundamental due process, including imprisonment
without probable cause, interference with the right to counsel, and threats of serious bodily
injury. The United States Government objected to the release of such information, citing the law
enforcement exception within the FOIA (Center for National Security v. U.S. DOJ 2003).
The First Amendment does not require release by Department of Justice of any information
concerning persons detained during investigation into major terrorist attacks. The Court
expressly noted the language of the First Amendment “Congress shall make no law ... abridging
the freedom of speech, or of the press” and said “it does not expressly address the right of the
public to receive information," rather, generally speaking, the First Amendment only broadly
protects the public’s right to speak or to publish. Although we live in a free and open society
where it is possible to reach out and communicate beyond our boarders, little by little our voices
are being censored under the guise of national security.
The Need for Oversight
The assumption underlying the adversarial system is that a just outcome is achieved when each
party in the dispute has an equal opportunity to make its best arguments on the legal and factual
issues at stake in the full glare of the public eye. This requires that all parties to the litigation
have access to evidence and information that may be helpful to resolving the case. Court
decisions that dismiss cases or deny parties’ access to important evidence as a result of national
security has the potential of failing to provide redress to parties who have been wronged. In the
years since 9/11, cases involving security issues have become more central to our national
debate. Should secret evidence prevent the civil litigation system from dispensing justice,

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Congress needs to enact safeguards providing redress to wronged parties. A mandatory review
must be undertaken regarding all cases that infringe upon our citizens’ civil liberties to ensure
that our Constitutional Rights are protected and upheld. It is difficult to accurately assess the
potential threats to our civil liberties, as many cases are never even brought to trail, nor is there
any review to assess if an individual’s rights have been violated.
Life during war times
History has demonstrated, in times of war, the courts have upheld restrictive laws that abridge
rights otherwise protected by the Constitution. Freedoms forsaken today may not be regained
tomorrow. The Patriot Act allows officials to sidestep the Fourth Amendment by validating the
disregard of notice, probable cause, and proportionality. Having said this there are critical
instances in American history, such as the South's secession, Pearl Harbor, and the Tet
Offensive, when threats to national security were overlooked with disastrous consequences.
Given that the danger of terrorism against Americans is currently very high, it is argued, civil
liberties "should be curtailed [because] the benefits in greater security outweigh the costs in
reduced liberty," (Lavin & Stossel 2002).
Newsday's Washington bureau chief Timothy Phelps assessed the political climate regarding
protecting news sources; "I don't sense as much of that today, even in the journalistic
community. The legal atmosphere, the corporate atmosphere, and the public atmosphere have
changed." Lawyers for the news media say that the legal climate for those seeking to protect
confidential sources is turning chillier, with more subpoenas being issued to reporters. It is
troubling that there is no database that tracks such subpoenas, as some prosecutors dispute that

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they are on the rise, however a series of high-profile cases involving confidential sources has the
news media on edge (Seelye 2005). Regardless of our governments actions involving the
disclosure of confidential sources; "The biggest fear that most reporters have now is not having
their [mail, phone records monitored without consent] said John Solomon, who oversees
investigative reporting for the Associated Press, "The biggest concern is that they'll write about
something and will be forced to talk about it." What is troubling is that there is an environment
that breed’s fear of reprisal thus effectively censoring the news and the public’s right to know.
No administration in our history has had the technological capacity to spy on all of us as they do
now.
A federal judge in Portland, Oregon threw out the case against an American lawyer jailed for two
weeks as a material witness in the Madrid train bombing. The Federal Bureau of Investigation
said it had mistakenly matched his fingerprints with prints on a plastic bag found near the scene
of the attacks that killed 191 people (Lichtblau & Risen 2006). Upon the lawyer’s release at a
news conference, he stated as his body shook; "This is a serious infringement on our civil
liberties”, adding, “[we live] in a climate of fear, this war on terrorism has gone to the extreme
and innocent people are victims as a result." David Fidanque, executive director of the American
Civil Liberties Union of Oregon also echoed a sentiment that is a growing concern of many U.S.
citizens; "This is indicative of how the Justice Department has overreached and cut constitutional
corners since 9/11," (Lichtblau & Risen 2006). The Oregon Justice Department is reported to
have invoked the States Secret Privilege at least 50 times since the 9/11 attacks. No one is
accusing our government agents of not vigorously pursuing threats to our national interests;
however this incident once again illustrates the potential for abuse to innocent civilians.

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Our government’s responses to security threats may sometimes seem severe in times of crisis, as
was President Lincoln's suspension of habeas corpus during the Civil War. Civil liberties,
Lincoln wrote, always "remain part of the balance even in the most dangerous of times, and even
though their relative weight must then be less." The Bill of Rights always expands and shrinks
in times of crisis. Extraordinary times require extraordinary measures. Americans regretted
deeply when our liberties were crushed during these times. We don't know when this war will
end, this war on terrorism ((Lavin & Stossel 2002). The extraordinary measure being undertaken
to ensure our security at the cost of our civil liberties may well become customary. These
precedents will be argued in the years ahead as incidents of violations to our civil rights become
pervasive. Perhaps then the public and our courts will soon realize the far-reaching
consequences that diminish our rights and modifications will be made to the important security
acts to ensure and protect our Constitutional Rights.

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Government Sources –
American Civil Liberties Union v. National Security Agency. (2007). http://www.cfr.org/
publication/11326/american_civil_liberties_union_et_al_v_national_security_agency_et_al.html
Carroll v. United States. (1925). http://en.wikipedia.org/wiki/Carroll_v._United_States
Center for National Security v. United States Department of Justice (2003). http://www.cnss.org
/cnssvdoj.htm
Civil Liberties Union v. the National Security Agency. (2007). http://en.wikipedia.org/
wiki/ACLU_v._NSA
Freedom of Information Act. (1966). http://en.wikipedia.org/wiki/Freedom_of_
Information_Act_(United_States)
Foreign Intelligence Surveillance Act. (1978). http://en.wikipedia.org/wiki/
Foreign_Intelligence_Surveillance_Act
Hepting v. AT&T. (2006). http://en.wikipedia.org/wiki/Hepting_v._AT&T
National Security Letters (1978). http://en.wikipedia.org/wiki/National_Security_Letter
Katz v. United States. (1967). http://en.wikipedia.org/wiki/Katz_v._United_States
The Patriot Act. (2001). http://en.wikipedia.org/wiki/USA_PATRIOT_Act
The United States Constitution, Amendments I, IV, V, VI, IX, X, XIV. (1791, 1868).
http://en.wikipedia.org/wiki/List_of_amendments_to_the_United_States_Constitution
The United States v. Reynolds. (1953). http://en.wikipedia.org/wiki/ United_States_ v._Reynolds
States Secrets Privilege. (1952). http://en.wikipedia.org/wiki/State_Secrets_Privilege
Critical Sources –
Kershaw, S. & Lichtblau, E. (May 25, 2004). Bomb Case Against Oregon Lawyer Is Rejected. The
New York Times.
Lavin, T. & Stossel, S. (February 6, 2002). Security versus Civil Liberties. [Atlantic Online].
http://www.theatlantic.com/unbound/flashbks/liberties.htm
Lichtblau, E. & Risen, J. (January 20, 2006). Legal Rationale by Justice Dept. on Spying Effort. New
York Times.
Moyers, B. (Broadcast Journalist). (February, 28, 2003). NOW, Politics and Economy, Transcript:
Bill Moyers Interviews Nat Hentoff. [PBS.org]. http://www.pbs.org/
now/transcript/transcript_hentoff.html
Seelye, K. Q. (July 4, 2005). Journalists Say Threat of Subpoenas Intensifies. The New York Times.
Weaver, W. G. & Pallitto, R. M. (Spring 2005). State Secrets and Executive Power. Political Science
Quarterly, Vol. 120, No. 1, pp. 85-112.