Search and Seizure: 1700s Reasoning and 2000s Technology - Term Paper Example

? The US Constitution Amendment Four The Fourth Amendment Protection from the Unreasonable Search and Seizure If there is any law that seeks to reconcile the past with the future, then certainly the law of search and seizure is the law that evidently gives this provision. The text provided in the Fourth Amendment clearly points to the backwards and forwards, thereby joining prohibitions of specific past abuses with a wider description of unreasonable searches and seizures the future delivers. The Fourth Amendment which was written in the year 1791 stipulates that people have a right to be always secure in their houses, persons, or papers. According to this amendment, Searches and seizures effects are not to be violated, and warrants are not to be issued unless upon probable cause that is fully supported by an oath or an affirmation that in particular describes the place to be searched and things to be seized or the persons. The fourth amendment recognizes the right that can never be taken away from any individual, and it was written out of experience given that it came somehow directly from the colonials experiences. The amendment was not only introduced because of being a fundamental right but also as a main part of English ideas. Much of the Supreme Court’s popular zigzagging jurisprudence of the Fourth Amendment can better be understood as a debate on how to harmonize the search and seizure orientations. The questions that set the stage for this debate concerns the extent at which these Fourth Amendment set unchanging limits on the investigative authority of the government and the extend such limits change with the changing society. In the recent times, these issues have become pressing. The 11th September 2001, atrocities along with other law enforcement measures taken as a response, have prompted reconsideration of the appropriate, modern day America. The revolution of the Warren Court, as far as the area of search and seizure in the Fourth Amendment, is concerned was such an expansion of the federal constitutional rights in the face of the practices that take place in states. The Fourth Amendment historical background provides an insight into the way the modern analysis does work. Under the British rule, the British soldiers were allowed to issue general warrants that allow arrests without any wrong doing, seizure at whim, and searches without any particularity. The founders of this law sought protection from such types of government unreasonable intrusions to create the bill of rights. In order to bring to end abuses of the general, exploratory searches, the drafters came up with the Fourth Amendment. The Fourth Amendment was empower the federal courts, in which case, it was to serve as a legal guarantee since its text encompasses protection against arrests, searches and seizures. However, this Fourth Amendment does not explicitly define when the court shall require warrants. This has brought about varied textual interpretations. Many scholars have debated extensively the phraseology, as well as the relationship that exist between the clauses. However, despite the intent of the chosen words, the Supreme Court has often professed strong preference for the warrants given that warrants serve as reliable safeguard against unstipulated improper searches. This, thus, implies that Courts need a warrant prior to any search and seizure. For the police to obtain a warrant, they are required to prove a probable cause that the said location to be searched shall lead to the evidence of a crime. In making sure the qualifications for the Fourth Amendment protection are met, the background and text of the Fourth Amendment suggest that there need to be preference of warrants prior to the search to be conducted. Nonetheless, this preference applies in cases where the activity to be undertaken qualifies as a search for the Fourth Amendment. A search takes place in cases where the activity in question infringes on some reasonable expectation of privacy for which the society considers reasonable. There are two prongs that constitute an infringement analysis. First, the actor on behalf of the government must investigate the activity that is said to violate the Fourth Amendment. Secondly, the party lounging complains must be having certain reasonable expectation of privacy of the activity that is being searched. Where the activity in question meets the two prongs, the search would have taken place, this thus, means that the provision of the Fourth Amendment applies in this case, and the Court needs a warrant. In cases where the activity fails to meet the two prongs, then the protection of the Fourth Amendment fail, as well to apply and in such a case the police do not necessarily need a warrant. Traditionally, under the first prong, the Supreme Court considers the law enforcement official as government actors. Accordingly, most of the jurisprudence of the Fourth Amendment focuses on whether the activity of the police represents an inversion of a reasonable expectation of privacy. In many cases, analysis of a reasonable expectation prong has never been predictable or straightforward. It consists of various considerations. The defended requires a standing for him or her to be able to challenge the activity. Being present in a location such as a car or a house does not on its own convey standing. The person has to show clearly that her/his individual rights were violated following the police searching her property. Moreover, an individual cannon challenge the evidence found against him/her in case the search violated the rights of the third party or happened with the consent of the third party concerned. The function of the Courts is to address the standing issues as being separate from the issue of whether the search did take place, though, it can work in a way to limit which of the law enforcement activities are to be challenged. The Fourth Amendment protections might have high stakes for an individual, as well as the government accused of a crime. Where the court discovers that the police did obtain evidence through the unconstitutional means, it would generally exclude the evidence with the intention of deterring the future police misconduct. Such an exclusionary rule has some exceptions. However, it is used to keep the illegitimately obtained evidence out of the criminal proceedings. Various US agencies have been increasingly violating the stipulations under the search and seizure amendment. National Security Agency is one of the important agencies of US government. National Security Agency is a unit under the US department of defense, and which has been cited to violate the privacy of people. It is tasked with the responsibility of collecting and analyzing various forms of foreign communication, as well as signals of intelligence, to detect potential threats to the country’s security. It is also tasked with the responsibility of protecting United States’ information and communication systems (Bamford 4). The mission of NSA have been widely cited as eavesdropping radio broadcasts, telephone conversations, internet communication , among other forms of technological communication. Its mission to secure communication pertains to the diplomatic and military duties, as well as securing the secretive government communication systems. It is argued to be one of the largest mathematician employers across the globe. Additionally, it is argued to be one of the agencies with super-designed computers and software. As if not enough, it is argued to collect and store over a billion communication conversations and messages each day. NSA is legal bound to gather intelligence from foreign communications. However, it has not been uncommon for this to be extended to the domestic communications, as in the case of the controversial NSA warrantless surveillance. As a component of the Intelligence Community of United States headed by the Director of National Intelligence, National security Agency is commanded either by the vice admiral or the lieutenant general. National Security agency activities are linked to the United States military cryptanalysis agencies via the Central Security Service (CSS). The Directors to NSA also serve as the chiefs of the CSS, as well as the Commander in charge of the US Cyber Command. This interlink depicts the crucial position occupied by the agency (Patrick, Chatter and Radden Keefe 23). Whereas NSA is pivotal to US security, it has not been without criticisms. Considering that every form of communication technology has an allowance for intrusion and eavesdrop, NSA has been particularly criticized for violating the right to privacy of people. However, the agency programs have been defended on the account that that they are implemented in accordance to the law. The law stipulation limits any agency or groups from eavesdropping communication from the US citizens, unless by virtue of issue of warrant. Even so, questions have further been raised on whether it is justified for NSA to violate the rights non-US citizens. Wiretapping programs have also turned out to be particularly controversial. For instance, after President Nixon regime, various investigations pertaining to the misuse of NSA facilities were launched. The investigations uncovered secretes such as the President Kennedy’s plan for Castro assassination and the wiretaps that were targeted against citizens (Church Committee 7). Incidences of warrantless wiretaps have been reported during the Bush and Obama administration, attracting public concerns. Presidents have often been questioned, considering that they are entitled constitutional powers to authorize the warrantless wiretap programs. According to Bamford (23), even its activities related to the establishments of the echelons have not been spared of the criticisms. NSA has been dismissed for going beyond national security interests to advance self vested interests such as advancing economic and political espionage to frustrate the opponents. At least, this has been the view of countries outside the echelons. In conclusion, NSA is pivotal in maintaining the security of the current against foreign threats. It achieves this by monitoring various forms of communication. Although its programs indispensable, it has been marred with controversies. Its programs have been criticized for violating the right to privacy. Secondly, it has been criticized for advancing self-vested interests such as political and economic spying, and fulfilling vested interests. Each time these have occurred, accusing fingers have been pointed toward those in power, including the congress and the president, attracting controversies. It is worth noting that the constitution seeks limiting the powers of the government based on the bill of rights and systems of checks and balances. Thus, the weaknesses and strengths of US constitution can be best elucidated based on these elements. First, it is worth acknowledging that the Bill of rights offers desirable philosophical basis in which the powers of the government, as well as the legislatures, may be limited (Curray, 2007). During the American liberalism hey-day, it is obvious that the state would have particularly interfered with the freedom of individuals if the bill of rights were not in effect. The consequence of this would have been that the society would not be live in liberty, as it is today. The bill of rights limits the powers of the government, creating the allowance for the freedom of individual actions to prevail. However, the inherent weakness is that its philosophical basis attracts questions, especially following signing of the New Deal. It widely cited that the proposed and rejected Evans, Bowen and Murphy Bill of rights may have particularly served a better purpose than the adopted Bill of Rights. The provisions that they contained for limiting the power of the government arms and organs were nullified by other provisions that granted the government the allowance to avoid the effects associated with the limitation (Curray, 2007). The eventuality is that the imitations that were to be imposed on power became nugatory. In this regard, it has been argued that the Bill of Rights ceased to serve their function and, instead, created the allowance for the frauds to be directed against the public. This point is agreeable and reflects what is happening in the society. Secondly, as far as checks and balances are concerned, it may not be disputed that a desirable liberal system is that which contains various devices for limiting power via checks and balances. Such a system functions based on constitution and law, as well as based on interactions between the institutions and individuals. This is because the allocation of excessive powers to one arm would have been accompanied by the power abuses. Thus, one of the points to appreciate of the US constitution is that it creates the allowance for the separation of powers. The government power is divided between the judiciary, the legislature and the executive. Indeed, such a division is justified by the fact that excessiveness of power can only be checked by distributing power to different entities. Under this circumstance, an entity entitled power should always fear the reactions from other powers; hence, desist from abusing the powers. Those in power are shaped in the sense that the decisions they make, as well as the policies that they implement, reflect the interest of other parties, in order to avoid the backlashes. Power distribution creates the allowance for authorities to be responsible for powers to be effected in a manner that suits the demands and interests of certain office. For instance, effective functioning of the judiciary does not only require mind training, but also power training, in order to ensure that processes of adjudication and legal reasoning is carried out effectively. Nevertheless, these should reflect integrity, ethos and co-existence, which may not necessary to executive and legislature. Considering that each power functions based on differing methods, the combination of the powers ensures that the interest of virtually all parties, including the subjects ,are reflected in the decision-making processes (Lisa, 2012).This way, a system of power division checks on the excesses such as corruption and undesirable conduct by those in power. Although the system of separation of powers is commonly associated with the functionalities of the executive, arm and legislature, it goes further. It touches on the separation of powers between the federal government and the state government, the governments and the institutions and agencies, and even individuals. The effective functioning of legislature and power distribution would require giving consideration to fair representation to every region in the nation. In the sphere of legislature, power is divided between various components of the parliament, including the governor general, the senate and the House of Representatives. The power of each component is shared among its members. Usually, it is a requirement that for a decision to passed, it must be supported by the majority of the members. Each house is governed by its constituency, that is, it is elected based on different methods. In general, the parliament is elected by the country; thus, is limited by the responsibility owed to the electorate (Curray, 2007). Similarly, the demand for the leadership of the executive government requires the compactness and co-existence between the groups concerned, ensuring that power is well distributed. In the sphere of the executive, ministers are not only obliged to govern the interests of the entire nation, but are also supposed to cooperate with the public service, which is often impartial. In this case, an impartial public service is required to ensure that it checks upon corruption, favoritism, inefficiency and nepotism. However, the evolution of the world has seen impartial institutions, such as public service, lose the impartial element. Obviously, this comes with far reaching implications as far as the separation of powers is concerned. Additionally, within the judiciary, power is often distributed among court hierarchy. Additionally, the discipline of the judicial courts is limited by the appeal processes. Furthermore, processes of vetting and training the legal experts ensure that the judiciary practices reflect high standards of competence and professionalism. The independence of the judiciary is often guaranteed by the tenure of office, which is often subject to disciplinary measures such as removal from office by the Governor General, based on the address of the Houses of the government, in what may be referred as the government impeachment. The federal constitution also offers a division of powers between the state components. Furthermore, each system comprises of the powers balanced against each other, creating the allowance for one system to restrict the other. In this regard, it is a requirement that the House concur on various points before arriving at a decision to have a statute enacted. In the cases that the judicial reviews prevail, statutes are subject to the reviews by the judiciary. In the Federal government systems, the upper houses contain the state representatives that share power (Savage, 2012). However, in my view, the current system is not effective in exercising balances and checks. It could be argued that it does not represent the actual affairs of the states in the contemporary world. In the actual practices, the balance and check doctrine is increasingly being undermined by the doctrines founded on democracy, where the powerful and most influential are ruling. This is negating the fact that even the purpose of democracy was to serve as a check in order to strike a balance that favors individual liberty. One of the examples to elucidate this is the fusion of the legislative and the executive powers. The eventuality is that modern legislations have failed to recognize the criteria of for effective functioning of the government. The government is particularly dominated by the regulations of the executive. The House has been considered as a mere approver to the regulations by the executives, instead of exercising checks and balances. A Substantial amount of power has been delegated to the executive. Indeed, the eventuality has been the creation of the unlimited prerogatives that are exercised in the name of people when the real situation is that most decisions are made to protect the self-vested interests of those in power (Curray, 2007). Even as United States celebrates achievements in democracy, it is still undisputable that the president continues to wield a lot executive powers. In particular, this has been depicted by Obama administration (Savage, 2012). For instance, Obama is said to have interrupted a white house meeting by introducing an issue that was never on the agenda, citing that the administration required the aggressive utilization of executive powers to overcome the opponents. Arguably, Obama had been concerned that the Bush administration had created the allowance for flouting the role of the congress, something that Obama strived to shun during his two years in the presidential office. In the recent activities, Obama has earned criticisms for striving to implement decisions without the approval from the congress. Some of the policies that Obama has adopted include creation of jobs for the veterans, preventing the shortage of drugs, raising the standards of fuel economy and preventing domestic violence. Obama has often emphasized that he bypasses the law makers, asserting that he would continue implementations by himself even when the congress declines to approve. Obama has stated that executive actions would limit the possibilities for his election for the second term. One of the decisions that elicited sharp reaction was to use his recess appointment powers to install officials that had been objected by the congress. Obama has been widely criticized over his approaches of concentrating many powers in his presidential office. Others have contended that the move by Obama to exercise presidential powers in passing decision is not new in history. It had been used by his predecessors on various occasions, yet it is legally bound by the constitution. The executive order gives direction to everything from the United States Flag Code to single-handedly declared Martial Law. These executive orders are used by the president in emergence times in overriding the United States congress and the constitution. For example, President Woodrow Wilson in 1917 failed to convince Congress in helping United States vessels that was plying hostile German waters. When Congress refused to back him up, he invoked the executive order policy to force everything through. The president has the powers that enable him transfer a whole population from a certain part of the country to any part of the country without seeking the legislature approval. For example, President Andrew Jackson executed such powers in forcing the law-abiding Cherokee Nation to move from their ancestral lands (Savage, 2012). The president has the powers that enable him suspends the press and force registrations of persons nationwide without the congress approval. For instance, President Franklin Delano Roosevelt using the presidential powers without consulting the congress, issued Executive in 1941 December 1941. This order forced 100,000 residents of Japan living in U.S.A to be rounded up. They were placed in concentration camps. The life struggle that was associated with these actions provided arguments that favored their implementation at a time of war. It is obvious that the constitutional powers wielded by the president are excessive, implying that the constitution may need to be reviewed. Furthermore, even as the United States celebrates the achievements in the separation of powers to exercise checks and balances, this system has created allowance for the some powerful groups to influence the government; hence, safeguard their interests (Lisa, 2012). Here, the participation of interest groups has been dominant. Interest groups are the organization of people having policy goals and work in the political process in promoting such goal. Examples of such groups are powerful financial institutions, groups and individuals such as N.K.A and the A.A.R.P. The interest groups work in lobbying the government by hiring representatives that advocate on behalf of the interest of the groups. Lobbying activities entails contacting congressmen to disseminate information to deal with adverse or positive proposed legislation effects. The interest groups, as well, engage in election activities. This group attempts in influencing elections in order to make people support the issues they advocate for re-elected or elected. The groups participate in electioneering techniques, which include providing money to candidates, endorsement of candidates, as well as contacting grass root activities. In this regard, the interest groups try to convince the senator or the president to change issues and at times give money to the voters to try to influence them on the way to vote Interest groups take part in educating the public. The groups work hard in educating the large public, their members, government officials and the potential interested members of the group. In trying to achieve this, the interest groups give testimonies about affordable health care and other related services. Additionally, interest groups mobilize various publics in order to influence policy making by the government. The groups rely on people’s effort especially those motivated to act on behalf of the groups and their causes (Lisa, 2012). However, there are concerns that interest groups attempt to influence policies in leadership, in many ways, including ensuring that their self-vested interests are achieved. The US constitution should be changed to reflect how these issues could be checked. Developments in the use of technologies have posed certain challenges to the US constitution. For instance, technologies have been accompanied by various crimes and insecurity issues. Indeed, the world has been has been under persistent transformation, with Science and technology being considered as the essential vehicles of these transformations. The most recent achievements have been attributed to the developments in the world of computer and networks, which have considerably reduced the world to a global village. However, these have been accompanied by the now rampant network insecurity risks, such as those posed by network intrusion, hacking, spying and cyber bullying, among other others. These have, in the past, attracted the users’ concerns and, in the recent decades, prompted the search for techniques to minimize cases of network intrusion, as well as tackle rampant cases of cyber crimes. Various countries have instituted legal measures to address all forms of cyber crimes. In Other countries have gone as far as establishing a specialized surveillance intelligence unit to detect the perpetrators. United States has often gone beyond its borders to track and bring into custody those suspected to perpetrate it. In 2000, FBI suspected incidents of cybercrimes being committed by the Russian citizens; Alexey Ivanov and Vasiliy Gorshkov. It sought to track the suspected cyber criminals, luring them to come to United States with a ruse of a job promise. FBI further went ahead to download several pieces of evidence of cyber crimes from their personal computers. Questions have often been asked on whether the investigative techniques employed by Federal Bureau of Investigation were excessive (Lemos, 2000). In the face of international community and as far as justice is concerned, such steps have often attracted sharp reaction, with questions raised on the justifiability of these. Furthermore, in as much as US has been focused on safeguarding the Bill of Rights, other approaches in tackling cyber security have been associated with breaching privacy and insecurity issues (Brenner & Koops, 2004). Us constitution does not account for such issues. United States law and its foreign policies, have found themselves in conflict with the international law. Or instance, in 2003, United States invaded Iraq in what became to be referred to as the Operation Iraq Freedom. The invasion, led by United States, entailed a combination of forces from Australia, Poland and United Kingdom. The operation saw the regime of Saddam Hussein toppled within three weeks of main combat, concluding with the capture of Baghdad. The invasion elicited sharp reactions from the entire globe; all directed at the extent that the invasions could be justified (McLaren, 2003). As such, the world became divided on the manner in which the invasion was conducted. On one hand, the group against the operation was assertive that the invasion was not justified, adding that it was all attributable to self-vested motives of the West. On the other hand, the group in support of the operation maintained that it was justified under the international law. The 2003 Iraq invasion was not justified. It is worth noting that the subject of whether the invasion was justified centers on the position of United Nations Security Council stipulations. It has been widely cited that the invasion was carried out without United Nations Security Council Authorization. United States has often maintained that there was authorization based on the Resolution 678 of the Security Council, implying compliance with the international law. What places United States on the wrong side of international law is the fact that Resolution 678 of the Security Council does not issue stipulation on whether any member of United Nations could employ all the means as a way of upholding Resolution 660. This implies that the only way to justify an invasion is solely dependent upon the decision of United Nations Security Council. Such a position is clearly supported by the stipulations under articles 39, 40, 41, 42 and 43 of the charter of United Nations. Stipulations maintain that member states on United Nations do not have the authority to judge whether other member states are in compliance with the resolutions of the under United Nations. This also implies that member states do not have the rights to exercise any independent enforcement. There are other areas in which the US constitution conflict with international law. Considering that Constitution functions as the basis for the country’s judicial system, there have been concerns that the attempt to incorporate international law would undermine it. Opponents have asserted that using international precedent is a transparent disregard for the Constitution and would be used to promote a lawyer’s personal political interest over the best needs of the country. Nevertheless, considering that the world is drawn together, there would be the need for the constitution to be adjusted to ensure that the conflicts with the international community are resolved. Conclusion In conclusion, questions have been raised on whether the US constitution is still suited in the government of contemporary society. In this paper, I have argued that whereas certain elements in United States constitution continue to be relevant, a test of time has depicted United States constitution to possess loopholes that may particularly need to be addressed. Crucial areas of concern include limitations of powers of the government through the bill of rights and through a system of checks and balances. This leaves out a lot to desire. Furthermore, considering that globalization is drawing various regions of the world together and blurring border barriers, the subject of concern has been the concurrence of US constitution with the international law, including the stipulations contained in the Universal Declaration of Human rights. As if not enough, considering that the US constitution was founded before the explosion of technologies, especially those that deal with information and communication, it does not address technology related issues. The Bill of Rights or, rather, its interpretation, has proved subjective. It may not be disputed that a desirable liberal system is that which contains various devices for limiting power via checks and balances. Whereas United States constitution acknowledges this point, its stipulations do not offer an effective approach to the effective implementation of checks and balances. Some of the institutions that are required to exercise checks and balances, such as the public service, has been politicized and rendered partial. The balance and check doctrine is increasingly being undermined by the doctrines founded on democracy, where the most influential are ruling. Even as United States celebrates achievements in democracy, it is still undisputable that the president continues to wield a lot executive powers. In particular, this has been depicted by Obama administration. Furthermore, the constitutional system has created allowance for the some powerful groups to influence the government; hence, safeguard their interests. The constitution requires to be overhauled to address such issues. References Bamford, J. (2005). “The Agencies That Could Be Big Brothers” New York Times. Brenner, S. & Koops, B. (2004). “An Approach to Cyber Crime Jurisdictions”. High Tech Law 2(3): 23-45. Curray, M. (2007). How Can Power Be Limited By The Constitution? Retrieved on October, 25, 2012, from www.ourcivilisation.com/cooray/btof/chap174.htm. Church Committee, (2009). Intelligence Activity and the Right of Americans: 1976 US Senate Reports on Illegal Wiretap and Domestic Espionage by the CIA, FBI and NSA. Black and Red Publisher. Lemos, R. (2000). Hack on FBI raises Security Concerns. Retrieved on 10th August, 2012 from http://www.jhtl.org/docs/pdf/JHTL_Brenner_Koops_Article1.pdf Lisa, J. (2012). The tyranny of the two-party system. Columbia University Press. Retrieved on October, (2012), from http>//www.historylearningsite.com McLaren, P. (2003). “Settling Scores with Saddam: Resolutions 1441 and Parallel Justification for the Application of Force against Iraq”, Journal of Comparative and International Law 233(1):33-45. Patrick, C, & Radden., K. (2008). Dispatches from the Secret Worlds of Global Eavesdroppings, Random House. Savage, C. (2012). “Shift o Executive Power Lets Obama Bypass Rivals”. The New York Times April, (2012). Retrieved on October 26, 2012, from http://www.nytimes.com/2012/04/23/us/politics/shift-on-executive-powers-let-obama-bypass-congress.html?_r=1&pagewanted=all Read More