What is Susan Herman's argument regarding antiterrorism and the Patriot Act? Explain her legislation comparisons to the USA Patriot Act. Do you agree with Herman? Why or why not?
What will be an ideal response?
• Susan Herman vehemently urges a different approach to counterterrorism, believing the Patriot Act to be a law that throws the balance of powers out of kilter.
• She asserts that Congress has relinquished its power to the president and failed to provide any room for judicial review.
• Proposals coming from the administration complement congressional actions by increasing the executive power to take actions without judicial review.
• Herman's argument is based in constitutional law. She compares the USA Patriot Act with two previous sweeping pieces of legislation: the 1968 Crime Control and Safe Streets Act and the 1978 Foreign Intelligence Surveillance Act (FISA).
• Title III of the safe-streets act mandates judicial review of police surveillance.
• Under Title III, criminal evidence cannot be gathered without prior approval from a federal court, and although a judge reviews a request for surveillance in secrecy, the police must prove that wiretaps or other means of electronic eavesdropping will lead to establishing probable cause for a crime.
• FISA surveillance differs from Title III warrants; under FISA, various forms of eavesdropping can be used to gather intelligence.
• A special judicial review is required before surveillance can be initiated, and any evidence gathered during the investigation cannot be used in a criminal prosecution.
• The constitutional concern partially focuses on judicial review; the courts have not been as vigilant in protecting individual rights during intelligence cases as they are in criminal trials.
• Herman compares FISA warrants to the type of surveillance proposed under the Patriot Act and concludes that the Patriot Act allows the government to watch its own citizens with similar rules.
• There is no guarantee that such surveillance will exclude evidence used in criminal prosecutions.
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