Transcript
INTL305 Short Essay/Written Assignment #1 – Week 3
1.The Patriot Act (Title II, Sec. 213) allows for the delayed notification of the execution of a search warrant. Under what circumstances can the notification be delayed?
Section 213 grants delayed notification based on “reasonable cause that … the warrant may have an adverse result” (USA PATRIOT Act 2001). The Supreme Court ruled the Fourth Amendment does not prevent immediate notice of a search order “if that would provoke the escape of the suspect or the destruction of critical evidence" (United States v. Dalia 1979). Courts can defer when prompt notice may bring about death, physical damage to an individual, flight from indictment, altering of testimony, or witness intimidation. Section 213 requires LE to give notice property has been searched or seized, but allows temporary delay for required notification.
This Section is important to serious investigations, including domestic/international terrorism, drug trafficking, organized crime, and child pornography. Section 213 authority is not limited to terrorism, and permits delayed-notice searches for any federal crime when immediate notice would have adverse results, including: (1) endangering a person's life or physical safety, (2) flight from prosecution, (3) destruction of or tampering with evidence, (4) seriously jeopardizing an investigation or unduly delaying a trial, (5) disrupting ongoing wiretaps, (6) allowing time to identify criminal associates, eliminate threats to a community, and coordinate the arrest of multiple individuals (Department of Justice n.d.). Warrants under Section 213 must provide notice to the subject "within a reasonable time of its execution, which period may thereafter be extended by the court for good cause shown" (DeRosa, 2005). Delayed-notification search warrants have been used for decades and upheld by courts as fully constitutional.
Department of Justice. (n.d.) The USA PATRIOT Act: Preserving Life and Liberty. (n.d.) Retrieved from: https://www.justice.gov/archive/ll/highlights.htm
DeRosa, M. (2005). Section 213." Sneak and Peek" Search Warrants
A Summary, 2005. American Bar Patriot Debates. Retrieved from: https://apps.americanbar.org/natsecurity/patriotdebates/section-213
United States vs. Dalia. (1979). The United States Supreme Court. Decided April 1, 1979. Retrieved from: https://supreme.justia.com/cases/federal/us/441/238/
USA PATRIOT ACT. (2001). Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, October 26, 2001. Retrieved from: https://www.gpo.gov/fdsys/pkg/BILLS-107hr3162enr/pdf/BILLS-107hr3162enr.pdf
2. The Patriot Act outlines the procedure for congressional oversight of intelligence activities. What makes congressional oversight necessary? Why should Congress be the branch of government that has such oversight?
The authority and requirements for Congressional oversight of federal programs is grounded in the Constitution's "necessary and proper" clause, and the "implied powers" of Congress. The Patriot Act allowed increased government surveillance of U.S. citizens and included specific checks and balances, the historical means by which one branch is not allowed more influence than the others (Rosenbach 2009). While most of the Act’s power resides in the Executive branch, oversight of the Intelligence Community (IC) to ensure national security and avoid abuses of power is through Congressional control and appropriations.
After 9/11, the Department of Justice sought increased tools to identify threats and protect the nation. Congressional oversight of these new powers included approval of budgets and appropriations. In 1978, the Foreign Intelligence or Surveillance Act (FISA) had provided Congress powers to reform Government agencies and monitor the legality of intelligence activities. The Patriot Act continued these Congressional responsibilities to balance the increasing power residing in the Executive branch.
The Patriot Act has been the subject of rigorous Congressional oversight. Questions regarding improper detentions, agency spending, asset forfeiture, disclosure of grand jury information are just a few of the areas that only Congress could investigate via legislative protocols. Despite ongoing efforts, some successful, “oversight of intelligence today is consistent with the more general pattern of reactive and limited congressional oversight, a pattern that has led some to identify intelligence oversight as a failure” (Hastedt 2013). One of the most difficult problems in Congressional oversight remains the growth of presidential powers shrouded in secrecy.
Department of Justice. (2002). Justice Department responds to oversight questions from House Judiciary Committee. July 29, 2002. Retrieved from: https://www.justice.gov/archive/ll/subs/congress/hjcpatriotactcombinedresponses3.pdf
Hastdet, G. (2013). Evaluating Congressional Oversight of Intelligence. E-International Relations. (August 23, 2013). Retrieved from: http://www.e-ir.info/2013/08/23/evaluating-congressional-oversight-of-intelligence/#_ednref8
Rosenbach, E. (2009). Congressional Oversight of the Intelligence Community. Harvard Kennedy School for Science and International Affairs. (July, 2009). Retrieved from: https://www.belfercenter.org/publication/congressional-oversight-intelligence-community
3. Title VII, subtitle A of the Intelligence Reform Act deals with foreign policy issues and U.S. actions in dealing with Muslim and middle eastern nations. What are these - and do you believe this to be good or bad policy?
Title VII, Subtitle A delineates:
Sec. 7102. Definition of terrorist sanctuaries; designation of foreign terrorist organizations (FTO) exploiting unstable regions; prevention of FTO from using countries as sanctuaries.
Sec. 7103. U.S. commitment to ensure a stable Pakistan; provide programs of assistance; combat extremists; resolve difficulties with neighbors; control borders; progress towards democracy; global market participation; modern economy; halt WMD; expand education; increase exchanges between Pakistanis and Americans.
Sec. 7104. Assistance for Afghanistan: Economic/political reform; improve security; establish effective military and police force; continue elections; destroy narcotics trade; increase support from international agencies, including U.S. State Department; improve education systems.
Sec. 7105. Advance relationship between U.S. and Saudi Arabia to improve counterterrorism activities; shared commitment to political/economic reforms; increase tolerance/respect for religious/cultural diversity; discontinue funding for extremist organizations; improve dialogue between both countries.
Sec. 7106. To combat Islamist terrorism: The U.S. must provide moral leadership; foster respect for human dignity; improve education/economic opportunities; defeat extremism and promote respect for rule of law and modernization.
These are ambitious plans outside the realm of military strategy or proven tactics. I don’t think you make war in the Middle East and seek peace at the same time. The metamorphic ability of the enemy makes it difficult to do anything but pound them in order to remove them. I don’t believe you combat Islamist terrorism with moral leadership and respect for the rule of law. The U.S. is taking a scatter-shot approach that will likely result in another catastrophe down the road.
United States Government. (2004). Intelligence Reform and Terrorism Prevention Act of 2004. Washington, D.C.: U.S. G.P.O. Retrieved from: https://legcounsel.house.gov/Comps/Intelligence%20Reform%20And%20Terrorism%20Prevention%20Act%20Of%202004.pdf
4. As part of the Intelligence Reform and Terrorism Prevention Act of 2004 the position of Director of National Intelligence was created. What are the duties of this position and why do you think it was created?
The Director of National Intelligence (DNI) is appointed by the President with consent of the Senate, serves as head of the intelligence community, is the principal adviser to the President, National Security Council, and Homeland Security Council. The DNI is responsible for ensuring timely, apolitical intelligence is provided to the President and appropriate leaders in executive and legislative branches.
Based on the priorities of the President, the DNI provides department heads guidance for developing the National Intelligence Program budget and ensures the effective execution of the budget while monitoring the Program, including audits and evaluations.
The DNI has access to all national intelligence and intelligence related to national security collected by any Federal department. The DNI protects sources and methods from unauthorized disclosure and implements guidelines for classification under applicable law.
The DNI establishes objectives and priorities for the Intelligence Community (IC) and directs tasking, analysis, production, and dissemination of national intelligence while overseeing and coordinating relationships with intelligence agencies of foreign governments and international organizations.
The DNI and ODNI were created after 9/11 to integrate the IC. It was a legislative attempt to establish institutional unity through infrastructure programs and information sharing. The DNI was the point man charged with creating access and order, and maintaining cohesion throughout the labyrinth of the IC. This blending of tasks and analyst capabilities is proceeding, but by all estimates, not fast enough. The goal remains the development of a viable capacity to integrate capabilities that will withstand unexpected violence or terror.
United States Government. (2004). Intelligence Reform and Terrorism Prevention Act of 2004. Washington, D.C.: U.S. G.P.O. Retrieved from: https://legcounsel.house.gov/Comps/Intelligence%20Reform%20And%20Terrorism%20Prevention%20Act%20Of%202004.pdf
5.Title II of the Intelligence Reform and Terrorist Prevention Act outlines the improvement of the intelligence capabilities of the FBI. What sort of improvements are to be made?
Title II outlines a series of reforms to enhance the FBI’s ability to create its own domestic intelligence force. These include:
Fully institutionalize the shift of the Bureau to a preventive counterterrorism posture.
Provide Trainees with instruction in criminal justice and intelligence, building a foundation for future FBI agents to act, if needed, in both capacities, and establish career positions in intelligence matters for agents, analysts, and related personnel of the Bureau.
Carry out a program to enhance the capacity of the Bureau to recruit and retain individuals with backgrounds in intelligence, international relations, language, technology, and other skills relevant to the intelligence mission of the Bureau.
Afford agents and related personnel the opportunity to work in the career specialty selected by such related personnel over their entire career with the Bureau; afford such analysts training and career opportunities commensurate with the training and career opportunities afforded analysts in other elements of the intelligence community.
Assure each direct supervisor of a Field Intelligence Group, and each Bureau Operational Manager at the Section Chief and Assistant Special Agent in Charge (ASAC) level and above, shall be a certified intelligence officer.
Require that each Field Intelligence Group manager ensures the integration of analysts, agents, linguists, and surveillance personnel in the field.
Establish a budget structure to reflect the four principal missions of the Bureau: (1) Intelligence. (2) Counterterrorism and counterintelligence. (3) Criminal Enterprises/Federal Crimes. (4) Criminal justice services.
United States Government. (2004). Intelligence Reform and Terrorism Prevention Act of 2004. Washington, D.C.: U.S. G.P.O. Retrieved from: https://legcounsel.house.gov/Comps/Intelligence%20Reform%20And%20Terrorism%20Prevention%20Act%20Of%202004.pdf
