Simply A Night Owl

One of the more unfortunate results of writing on a subject such as this is that I logically, or not, incorporate my experiences being a former member of what I consider now to be the last resort in diplomacy. Additionally, this subject is like opening up a can of worms. I felt like Morpheus just gave me the “red pill” because this assignment became a never ending rabbit hole. In the end, I had more questions than I started with and at the time, I was definitely not prepared for what I would find. What I did find was the basis for shaping how my political views would lean over the next four years though.

The originators of this assignment asked us to conclude with answering two questions the first of those being; are the actions of the government legal, moral or ethical?

Well my initial answer was “duh!” but I’m sure that that would not have garnered such a positive response; especially in the area of grading. In reality, sometimes I wonder whether or not the government of the United States even considers these questions when decisions of this caliber are made. What the United States government has done is to give law enforcement officers, especially at the federal level, blanket authority to arbitrarily deprive individuals of their civil liberties. What makes matters worse is that it is only a small percentage of individuals that they are initially targeting but in the end, the rest of us will also pay the price for this choice. One could argue that this new law will expire in the year 2005 and have no weight after that. If history teaches us anything, it teaches us that our own government has a seriously hard time relinquishing power; especially when it was acquired under questionable circumstances. What happens after the threat has been eliminated? Is there a possibility that in the year 2005, somebody in the government is going to look back over the last four years and say, “Wow, that worked really well for us. Maybe we should just hang on to it.” Theoretical? Yes. Possible? Also yes. (On March 9, 2006, President Bush signed into law a re-authorization bill.  This even after the bill had been criticized by Senators on both sides of party lines for ignoring civil liberties)

So let me now answer each question individually.

Was it legal?  Or defined further, was it permitted by law?  Article 1, Section 9, Paragraph 2 of the United States Constitution clearly states that the Writ of Habeas Corpus can be suspended in cases of rebellion and invasion if public safety requires it.   On the surface, it seems as though this was a legal act.  If our government had operated the way it is supposed to, were it not a legal act, the U.S. Supreme Court would have said, “Nah ah, you can’t do that.” In hindsight, maybe they should have.  The legality of the decision really hinges on the answer to the question, “Were we invaded?”

Was it moral?  There are definitions of moral which can be used to justify both sides of this argument.   Since we are supposedly a government of the people, for the people and by the people, I think that this definition works really well.  Good by accepted standards: good or right, when judged by the standards of the average person or society at large. (Emphasis Mine).  In my estimation, this was not a moral decision.

Is it ethical?   Ethical is defined as: conforming to accepted standards: consistent with agreed principles of correct moral conduct.  It is my point of view that if the U.S. Constitution is the standard for consistency, then the decision was definitely not ethical.

A decision made that is not ethical, moral, depending on your definition and questionably legal is a decision that should be made in the negative.  If any of those questions can be answered with no, then the answer should be no.  The end does not justify the means.

The second question to answer was should the 5th Amendment be replaced with a system in which criminal defendants can be deposed and receive discovery, just as civil defendants can?

The text of the 5th Amendment is as follows:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

It is my opinion that this doesn’t need to happen.  The right to receive discovery, be deposed and represented by counsel are guaranteed under the 5th and 6th amendments. Having said that, it is clear that the Federal Government is not leading the charge in respect to criminal discovery; this is a process that is being spearheaded by the individual states.  It appears that the government is holding on to the “time of war or public danger” aspect of the 5th amendment to curtail anyone of their choosing from having the right of due process. Discovery is a vital process within the criminal justice system because early disclosure of the strengths and weaknesses of the case facilitates negotiated settlement and, where appropriate, dismissal of baseless charges. Because discovery facilitates efficiency in litigation, it is believed to save resources. I have seen defendants walk away from charges for the lack of discovery in a criminal matter. I don’t think that the system needs to be changed; it needs to be used as it was intended to be used.  Don’t get the wrong idea.  I believe that the security of the citizens of the United States should, in the minds of the government, be of the utmost importance.   I simply disagree with how they feel that protection needs to be implemented.

I find no positive or negative outcomes from this type of change in the 5th Amendment in the day to day way that I do my job.  The cop on the street is going to go about doing his/her job the same way; the civil liberties of the citizens will not be violated. The new law is not going to change the way I conduct search and seizure, it is not going to change whether or not suspects are advised of their Miranda Rights, it is not going to change the fact that probable cause is a necessity for an arrest. Prosecution and defense alike will still be required to provide discovery. In a far reaching circumstance where I was actually dealing with a known or suspected terrorist, the situation will automatically be turned over to the FBI.

The best that I can do as an officer on the street is to keep informed, know what is going on and be able to maintain the trust of the citizens. To let the citizens know that with me, their civil rights are guaranteed, important and a crucial aspect of my decision making process.