POS 101-01: 02/15/2006.

1. POS 101-01: 02/15/2006. • Course Status: • Website – research links. • Pop/mini exams returned - end of class. • Make Up: • 2 page essay based on exam question. • Incorporates at least one outside source. • Bibliography. • Due: Monday 02/20/06. • Medical - no deduction - otherwise 1.5/10 deduction. • Presentations. • Assignment due dates: • Paper topic selection assignment, due today.

2. POS 101-10: 02/13/2006. • Agenda: • Follow-up 02/13/2006. • We The People, Chap. 4 – Civil Liberties. • PATRIOT Act/NSA and other “Domestic Surveillance”. • Video Cases: • PBS “Inside the FBI” 1994 – FBI domestic intelligence operations 1960s-1970s, reform, expansion early 1980s. • MSNBC - US DOD CIFA (“domestic surveillance”).

3. 2007 Federal Budget: Spending by Category, % Budget.

4. 2004 State Budgets: Spending by Category, % Budget.

5. Crisis and Expansion of the Federal/Central State. • Progressive growth of US federal state. • Growth of Authority, Resources diminishes state autonomy. • Forms of Crisis: War, Major Political Movement Mobilization, Epidemics, Economic (Depression, Recession). • Ratchet effect and federal budget/deficit. • OSU Professor Sahr’s website.

6. Civil Liberties • The Bill of Rights: A charter of liberties • Nationalizing the Bill of Rights • The First Amendment and freedom of religion • The First Amendment and freedom of speech and the press • The Second Amendment and the Right to bear arms • Rights of the criminally accused • The right to privacy • The Bill of Rights - A Charter of Liberties. • How does the Bill of Rights provide for individual liberties? • What are the differences between substantive and procedural restraints?

7. Substantive liberties are restraints on what the government shall not have the power to do. For example, restricting freedom of speech, religion or the press Procedural liberties are restraints on how the government is supposed to act. For example, citizens are guaranteed due process of law Civil Liberties Substantive vs. Procedural Liberties

8. Civil Liberties and War (Detention of Suspect Populations). WWII.

9. Civil Liberties (Privacy) and War. WWII - War on Terror.

10. Civil Liberties (Privacy) and War. WWII - Cold War.

11. Civil Liberties (Privacy) and War. WWII - 1990s Terror - UK.

12. Civil Liberties (Freedom of Association) and War. Cold War.

13. Civil Liberties (Freedom of Association) and War. Cold War.

14. FBI Domestic Intelligence Activities. • Video: “Inside the FBI” PBS 1995. • Expansion - late 1960s and 1970s. • Contraction. • Leaks - Media, PA break-in. • Investigative Reporting. • Congressional Investigations. • Legislation and security bureau reforms. • Expansion - early 1980s • Contraction. • Leaks, undercover agents go public. • Investigative Reporting. • Investigations, legislation, reforms. • Similarities to post-9/11 expansion and possible “contraction”?

15. Civil Liberties and Civil Rights: • What is the relationship between civil liberties and civil rights? • General Support for Civil Liberties post-9/11. • Davis, Darren and Brian Silver. 2004. "Civil Liberties vs. Security: Public Opinion in the Context of the Terrorist Attack on America." American Journal of Political Science. January. 48(1): 28-46. • Survey conducted Nov. 14, 2001 and January 2002. • 1,448 respondents. • Patterns of support among Whites, African Americans, and Latinos. • Key findings. • Interaction of threat (sociotropic versus individual), trust in government, ethnicity, and ideology.

16. Critical Current Event – Internal Surveillance. • US national security apparatus domestic activity. • Senate Judiciary Committee Hearings begin today. • CNN. • Committee Page. • Attorney General Gonzalez first witness. • Washington Post article (02/05/06). • National Security Agency. • Chief US foreign signals intelligence agency. • Larger than CIA - existence denied until mid 1970s. • “No Such Agency.” • Controversy: • Violation of law based on surveillance of “US persons” w/n United States. • EPIC “Spotlight on Surveillance: NSA” - likely discussed in State of the Union address. • ABAPublic Opinion Poll (02/07/2006).

17. Critical Current Event – Internal Surveillance. • NSA Program. • Washington Post article (02/05/06). • Administration 10 per year justify purely domestic monitoring. • 5,000 monitored via NSA program. • Probable cause vs. reasonable basis. • FISA access “metadata.” • Mechanical surveillance. • Link analysis. • Pattern analysis. • PBS News Hour. • Overview. • CSPAN. • Gonzalez Testimony.

18. Overview USA PATRIOT Act • Introduced sweeping changes to U.S. law, including: • Wiretap Statute (Title III): • Electronic Communications Privacy Act • Computer Fraud and Abuse Act • Foreign Intelligence Surveillance Act • Family Education Rights and Privacy Act • Pen Register and Trap and Trace Statute • Money Laundering Act • Immigration and Nationality Act • Money Laundering Control Act • Bank Secrecy Act • Right to Financial Privacy Act • Fair Credit Reporting Act • Passed October 2001. • Russ Feingold, the only Senator to oppose the Act.

19. Surveillance and Privacy Laws Affected • Title III:  • Electronic Communications Privacy Act (ECPA): • Foreign Intelligence Surveillance Act (FISA):  • Title III imposes strict limitations upon the government: • Intercept content only if “probable cause” to believe: • an individual committing specifically enumerated crimes • communications concerning offense intercepted, and • "the pertinent facilities” used by the alleged offender or … “used in connection with the offense." • Only designated officials can authorize interception, • Authorized for a limited time period. • Interception is subject to exclusionary rule.

20. Specific USA PATRIOT Act Provisions. • Pen Registers, the Internet and Carnivore • Carnivore (DCS 1000) cancelled - in name - continued in fact. • Expanded Dissemination of Information • Interception of "Computer Trespasser" Communications • New Treatment of Voice-Mail • Application of Cable Companies to Electronic Surveillance • Nationwide Surveillance Orders/Search Warrants • Authority to Conduct Secret Searches ("Sneak and Peek") • Expanded Scope of Subpoenas Electronic Records • Lowered Standard for Foreign Intelligence Surveillance • Multi-Point ("Roving Wiretap") Authority • Liberalized Use of Pen Register/Trap and Trace Devices under FISA

21. Specific USA PATRIOT Act Provisions (continued). • Access to "Any Tangible Things" • Sunset Provision December 31, 2005.  • Additional Amendments Providing Government the Authority to Combat Terrorism • increased employment of translators by the FBI •   five more judges to sit on the FISA Court  • Amendments to Immigration Laws • The ACLU's analysis of the immigration provisions • The Lawyers Committee for Human Rights, analysis of the USA PATRIOT Act Immigration Provisions (Oct. 26, 2001)

22. Patriot Act Renewal. • Sunset Provisions. • Set to expire December 31st, 2005. • House and Senate vote to extend by 5 weeks, currently negotiating 2nd extension. • Provisions Scheduled to “Sunset”. • Sections 201 (and 805), "Authority to Intercept Wire, Oral, and Electronic Communications Relating to Terrorism," and "Material Support for Terrorism" • Sections 202 and 217, "Authority To Intercept Wire, Oral, And Electronic Communications Relating To Computer Fraud And Abuse Offenses,” and Section 217, "Interception Of Computer Trespasser Communications. • Section 204, "Clarification of Intelligence Exceptions From Limitations on Interception and Disclosure of Wire, Oral, and Electronic Communications." • Section 206, "Roving Surveillance Authority Under the Foreign Intelligence Surveillance Act of 1978."

23. Patriot Act Renewal. • Provisions Scheduled to “Sunset”(continued). • Section 207, "Duration of FISA Surveillance of Non-United States Persons Who Are Agents of a Foreign Power." • Section 209, "Seizure of VoiceMail Messages Pursuant to Warrants." • Section 212 and Homeland Security Act Section 225, "Emergency Disclosure of Electronic Communications to Protect Life and Limb." • Section 214, "Pen Register and Trap and Trace Authority Under FISA" • Section 215, "Access to Records and Other Items Under the Foreign Intelligence Surveillance Act." • Section 220, "Nationwide Service of Search Warrants for Electronic Evidence." • Section 223, "Civil Liability for Certain Unauthorized Disclosures" • Section 225, "Immunity for Compliance With FISA Wiretap"

24. Patriot Act Renewal. • Extending the “Sunset”. • December 2005. • House votes to extend/make permanent - 251-174. • Senate filibuster - votes against ending filibuster - 52-47. • House/Senate compromise extends five weeks, extended another five weeks early Feb.2, 2006 (95-1). • Bi-partisan compromise announced 02/10/2006. • All Republican Senators some Democrats agree to end filibuster. • Compromise: • Restricts access to library records. • National Security Letters - some restrictions. • FISA “gag orders” can be challenged. • Senator Feingold “condemns” compromise. • NPR USA Patriot Act “Key Controversies.”

25. Other Surveillance programs/projects. • 'Lone Wolf' Provision • Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004 • investigations of lone terrorists not connected to a foreign nation or organization. • While not part of the Patriot Act, sunset extension. • Civil liberties groups: sweep in protesters and those suspected of involvement in domestic terrorism. • Language passed recently by the Senate Intelligence Committee would make this section permanent. • US DOD - Army, Naval Intelligence… . • Counterintelligence Field Activity (CIFA). • Database of incidents reported by DOD units throughout US. • Washington Post 1, 2. MSNBC 1, 2(video). FAS. DOD.

26. Enduring Debate, 125-138. • Pearlstein. • Post 9/11 measures not necessary. • Other options to secure US w/o violating civil liberties/human rights. • McCarthy. • “Walls” pre-9/11 example of flaws. • PATRIOT Act merely updating surveillance. • Make PATRIOT Act permanent. • Enduring Debate, Discussion Question 2, p. 138. • Slippery Slope. • Do small restrictions lead to progressively more substantial restrictions of civil liberty? • Inverse – w/o increased security – more attacks – and more restrictions?

27. Following tables, graphs from: Davis, Darren and Brian Silver. 2004.

32. Civil Liberties to Civil Rights. • Islamic Population: Mobilization for protection of civil rights. • Council on American-Islamic Relations. • Islam and Muslims: A Poll of American Public Opinion. August 2004.

33. The First Amendment - Freedom of Speech. • What forms of speech are protected by the First Amendment? • What forms of speech are not protected? • Strict Scrutiny – • Places the burden on the government to prove that a restriction on speech or press is constitutional: • Political speech is afforded the greatest protection. • Symbolic speech (flag burning) is protected speech. • Speech that is not protected: • Speech that presents a clear and present danger • Libel and slander • Obscenity

35. The Second Amendment - The Right to Bear Arms • Is the right to bear arms guaranteed by the Bill of Rights? • How is its exercise restricted? • “A well regulated militia, being necessary to the security of a free State, the right of the people to keep an bear Arms, shall not be infringed.” • Yet, no gun control legislation has ever been declared unconstitutional.

36. Rights of the Criminally Accused • Do criminals have rights? • How do the Fourth, Fifth, Sixth, and Eighth Amendments provide for due process of the law? • Rights of the Criminally AccusedThe Fourth Amendment • “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” • Failure to comply with the Fourth Amendment restricts the use of evidence pursuant to the exclusionary rule (Mapp v. Ohio).

37. Rights of the Criminally AccusedThe Fifth Amendment • A person has the right to a grand jury to determine the merit of criminal charges. • A person cannot be tried for the same crime twice (double jeopardy). • Individuals have the right to remain silent and cannot be compelled to testify against themselves in a criminal case. • Property cannot be taken by the government without just compensation.

38. The Right to Counsel - The Sixth Amendment • “In all criminal prosecutions, the accused shall . . . Have the Assistance of Counsel.” • Gideon v. Wainwright established the right to counsel in all felony cases. • Cruel and Unusual Punishment - The Eighth Amendment • The Eighth Amendment prohibits excessive bail, excessive fines, and cruel and unusual punishment. • The death penalty was declared unconstitutional in 1972 but was reinstated in 1976 after procedural changes were implemented.

39. The Right to Privacy • What is the right to privacy? • How has it been derived from the Bill of Rights? • What form does the right to privacy take today? The Right to Privacy • Griswold v. Connecticut (1965) created a “zone of privacy” when it was ruled that the state of Connecticut could not prohibit the use of contraceptives: • The Supreme Court concluded that a right to privacy was created through the Third, Fourth, and Fifth Amendments

40. The Right to Privacy - Abortion • In Roe v. Wade (1973), the right to privacy was extended, as the Supreme Court declared restrictive abortion statutes unconstitutional. • In Webster v. Reproductive Health Services (1989), the Supreme Court upheld restrictions on the use of public facilities for abortions. • In Planned Parenthood v. Casey (1992), the court narrowed the scope of Roe v. Wade.

41. The Right to PrivacyHomosexuality • In Bowers v. Hardwick (1986), the Supreme Court upheld Georgia’s sodomy statute when it ruled that the federal Constitution confers no right on homosexuals to engage in sodomy. • In Romer v. Evans (1996), the Supreme Court struck down a Colorado constitutional amendment that prohibited antidiscrimination measures designed to protect the rights of homosexuals.

42. The Future of Civil Liberties • What is the likelihood that the Supreme Court will try to reverse the nationalization of the Bill of Rights? • The Rehnquist Court did not actually reversed important decisions made by the Warren or Burger Courts. • Roberts Court unclear. • The current balance of justices makes any significant reversals unlikely – excepts in war/terror related areas.

43. Monday and Wednesday - 2/20 and 2/22. • Assignments. • Paper description returned 2/22. • Readings. • We The People. • Critical Analysis Question 1 or 2 on p. 199. • Enduring Debate. • Discussion question 1, p. 115. • Discussion question 3, p. 124.