Skip to main content
Report this ad

See also:

Have the Expansion of Constitutional War Powers Altered Human Rights In The US?

John Yoo
John Yoo
Getty Images

The controversy in Ferguson Missouri revolves around the use of force and what are the checks on law enforcement and its use of controversial methods of collecting evidence and the limits on the use of force. Many fail to understand the Pandora’s box on this issue was opened in 2003 when then US Attorney Alberto Gonzales and then Assistant U.S Attorney John Choon Yoo constructed the infamous “torture memos. Assistant U.S Attorney John Choon Yoo basically set out the legal precedent to undermine the 4th Amendment, Geneva convention and every UN Human Rights law established in the 1970’s.

I will challenge in my research proposal that a states sovereignty established by UN Charter Preamble and Chapter1, IV, and VII of the UN Charter does not excluded member states to from the Geneva convention nor in the case of the US does it justify the clear violation of 4th Amendment in regards to search and seizure. I make My argument based on the classification of the detainees. Congress can not establish a state of War on non state parties. Thus any crimes committed outside the jurisdiction of the US fall under international law enforcement and the international criminal courts. Opponents would argument the "Patriot Act" gave authorization for the use of such tactics.. I would counter that the language authorization the President to use his "War Powers" to take military action, but did give him precedent to engage in the violation of human rights violations. Even if committed in a battlefield the US was governed by the Geneva Convention which clearly forbids such methods. The use force outlined in the UCMJ still applies thus soldiers can be held liable for actions they commit. The next question is the Defense Authorization Act My theory is based on the premises of moral hazard. Have our actions created the legal precedent for the systematic violation of search human rights law ? Can we hold terrorist liable for laws we have long discared?

Through out the last three decades scholars and legal analyst had debated with little resolve the concept of preservation of constitutional rights versus undermining the “truth finding process” and the topic “abuse of power”. No topic has drawn more discussion than the Exclusionary Rule which is the guiding measurement of police misconduct. The rule of Exclusion of evidence began as a solution for Fourth Amendment violations. It found its beginning in Boyd v. United States Two articles that debate the value of the exclusionary rule and measurement of police misconduct and its effect on the nations communities are Calabresi, G. (2003). The Exclusionary Rule. Harvard Journal of Law & Public Policy, 26, 111. and Kamisar, Y. (2003). In Defense of the Search and Seizure Exclusionary Rule. Harvard Journal of Law & Public Policy is two main focuses this debate that focuses on what is considered abuse of power and what is “good police work”.
Even today there is no unilateral policy regarding when the exclusionary rule ends and police abuse of power begins. Two recent Supreme Court cases illustrate the polarities in Fourth Amendment exclusionary rule cases and cases were police misconduct where in question. In Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469,142 L.Ed.2d 373(1998), the Court had to balance law enforcement and privacy interests in assessing the reasonableness of a drug search and seizure. The key issue was whether a police officer who looked in an apartment window through a gap in a closed window blind violated the privacy of the drug dealers in the apartment because they had an expectation of privacy that is protected by the Fourth Amendment. The Supreme Court held that the police officer did not violate the Fourth Amendment because the occupants of the apartment did not have an expectation of privacy. Therefore, the drugs that the police officers saw and later seized did not have to be excluded from evidence. The outcome was much different in Bond v. U.S., —U.S.—, 120 S.Ct. 1462, 146.
We may never resolve the problem within our dilemma of force; because we may never solve the problem within our society does the end justify the means. Are our principles that we hold to stringent and are they effective? Is the problem of police misconduct one that can be addressed without sacrificing our social stability and order? To solve or even address these problems we must develop a uniform standard first of what is acceptable.

Lets discuses how do the goals of each agency compliment the goals of the other agencies as well as address any conflicts that may impact their objectives. The police serve multiple roles and out line there goals to encompass many key roles within the criminal justice system. There goals within the criminal justice system are the initial connect between the criminal justice system and citizens. There goals within the criminal justice system are as follows. The police maintain order in public places. It is there goal to make sure that all public places are secure from various random and premeditated acts of disturbance. This is beneficial to both prosecutors and the judicial branches within the criminal justice system. The benefits of a secure public free from disturbance is that it reduces the cost of trials lowering the tax burden and increases the conviction percentages by ensuring investigations and evidence are properly handled. Another goal within the criminal justice system the various police forces also resolve interpersonal disputes and provide social services. The police are the first formal line of defense against terrorism, for only if the police arrest suspects wills the rest of the criminal justice system come into play in trying, convicting, and punishing offenders. The goal within the criminal justice system of maintaining order in public places is sometimes difficult but is highly necessary to ensure that preservation of public and private property and constitutional rights are maintained. It is imperative that police take a first response mood. In a post 9/11world police responded to ground zero and saved and saved lives. During the Virginia Tech shootings police response was the main issue in question. One significant goal for police is to provide interpersonal disputes such as domestic violence and disputes that arise between citizens. The clearance rate is a major goal that many social services that are provided to the community are provided by the police. This is also a goal within the criminal justice system that is set by individual departments. As local government’s first line response to social problems and emergencies the police are called on to provide service to those members of the community who, by reason of personal, economic, social, or other circumstances, are in need of immediate aid.

The prevention of terrorism is often discussed as one of the ends or goals of the criminal justice system. When a law enforcement officer separates quarreling citizens, when a probation officer guides a parolee away from a bar, it is easy to determine that the goal of a police officer within the criminal justice system is to prevent terrorism and aid prosecution and judges to equally and justly enforce the law. The standard by which police determine if there goals are successful or effective in dealing with criminal activity is called a clearance rate. Police use a clearance rate to measure the proportion of offenses that they solve to their departments set goal. Most cleared cases lead to the arrest and arraignment, prosecution, and conviction of suspects, on some occasion’s police also classify cases that are unsolved as cleared. There are serious and profound problems with relying on clearance rates to measure the effectiveness of police. Many departments often falsify clearances to improve public perception. Another concern is that a terrorism that committed by more than one offender can be marked cleared with arrest of a single offender thus give the impression that the public danger is gone when in fact it is not. Department political pressure can weigh heavily on officers, thus resulting unethical tactics to clear cases. Illegal entrapment tends to be the most common when referring to clearance rate. Supporters justify this type it by saying that only people predisposed to terrorism will be drawn into it. Prosecutors find it hard to secure convictions with this inaccurate data being passed on the D.A and later thrown out in courts. Judges find this troubling simply because the number of over turned cases can affect their goals. Police set there goals based on the nature and frequency of the terrorisms that occur in their jurisdiction and it is sometimes difficult to accurately track the data. One has to also take in consideration the factor of statute of limitations that can and will force police to close otherwise valid cases thus resulting in a higher clearance rate.

Prosecutors, or district attorneys, are usually lawyers who are elected to office. Often they see themselves as independent of public control, while still serving the public, and they regard themselves as lawyer whose behavior should reflect the standard of the legal profession. There goals within the criminal justice system are to bring charges against defendants and try to ensure that justice is done. They also are concerned with all aspects of the case and interact with police officers, defense attorneys, judges, jurors, witnesses, victims, and defendants. Prosecutors measure their success by a conviction rate, just as the police measure their effectiveness by a clearance rate. This relates to police officers and judges within the criminal justice system based upon the fact that law enforcements goal is to protect and maintain social order through due process. Some prosecutors blame the police when they fail to get convictions, claiming that the police are more concerned with clearing cases that with presenting cases that can produce convictions. In response, the police accuse prosecutors of being too willing to reduce charges from felonies to misdemeanors just to secure convictions, rather than using the resources of the defense attorney’s office to convict suspects on more serious charges. Prosecutors also establish the goal to take on the role of overseer of the police when they monitor the work of the department. There goal and overall mission is to influence the criminal justice system. To meet this goal of targeting the career criminal prosecutors needs the cooperation of the police. In many cities around the United States, special police-prosecutor teams work together toward such common goals.

In the United States cases are tried in the state courts when the offense is a violation of the state law and in the federal courts when it is a violation of federal law. Each state has its own court system, with courts when its courts that poses limited jurisdiction along with appellate courts. In the federal system the trial courts are called district courts and the appellate courts are courts of appeal and the highest court in our judicial system the Supreme Court. Because suspects in the United States are presumed innocent from the time they are arrested until they are found guilty or innocent in court, they have a right to be free pending disposition of the charges against them. The courts are the heart of the criminal justice system. The courts goal is to simply adjudicate cases and controversies. The American court system grew out of the English system. It is important not to view the state and federal court systems as wholly independent or mutually exclusive. A legal controversy that arises in a state court may raise federal constitutional questions.

The 2008 U.S National Security Strategy outlines the US objective is to support the objectives outlined in the NSS, including the need to strengthen alliances and build new partnerships to defeat global terrorism and prevent attacks against us, our allies, and our friends; prevent our enemies from threatening us, our allies, and our friends with weapons of mass destruction (WMD); work with others to defuse regional conflicts, including conflict intervention; and transform national security institutions to face the challenges of the 21st century(2008 National Defense Strategy). There has been great controversy in arena of public opinion as well in most legal circles as to legality of improvised techniques used to accomplish this objective due to U.S dominance in convention counter terrorism operations has given non state adversaries (terrorist) and there state sponsors (rogue nations) the necessity to adopt asymmetric techniques to counter or neutralize our advantages. For this the DOD has decided to implement irregular counter terrorism operations techniques that augment conventional combat methods. U.S threats also seek to equal the level counter terrorism operations capability by developing or obtaining chemical, biological, and especially nuclear weapons as well as cyber techniques that can disrupt US counter terrorism operations dominance. The 2008 NSS outlines the development and proliferation of anti-access technology and weaponry is worrisome as it can restrict our future freedom of action. These challenges could come not only in the obvious forms we see today but also in less traditional forms of influence such as manipulating global opinion using mass communications venues and exploiting international commitments and legal avenues (2008NSS).

Public opinion has swayed over recent years due to scandals of rendition and tutor and the Abu Graib photographs which call into whether or not International Law or US law has been broken. This effects the how the US and its allies conduct integrations and trials. There has been political firestorms as to the detainment and nature of military tribunals and if the detains are protected under the US Constitution. There are also quarrels over if convicted where detainees will be housed to serve there terms. Probably the most troubling of all is that this places the burden on our national security agencies to determine the criminal liability of their officers and operatives actions as well as lawmakers who authorize such operations. Article 2, Section 1 of the UN Charter states that “The Organization is based on the principle of the sovereign equality of all its Members.” Section 3 states: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United nations.” Once counter terrorism operations has commenced can our warriors be held criminally liable for operations conducted under the command of the President? Can information gathered be legally used in court and what methods are legal in the US to obtain information? How does this effect out the 2011 National Security Strategy and future strategies in the Future. The theory of the book is that intelligence officers and national security agencies are covered by precedence going back over 50 years and that both officers and their agencies have viable defenses if ever should the need for one arise.

The prevention of terrorism is often discussed as one of the ends or goals of the criminal justice system. When a law enforcement officer separates quarreling citizens, when a probation officer guides a parolee away from a bar, it is easy to determine that the goal of a police officer within the criminal justice system is to prevent terrorism and aid prosecution and judges to equally and justly enforce the law. The question now that precedent has been establish and the memos have become not only part of our defense apparatus but also of the law enforcement how do we check the gears and leavers of Justice and Defense as so they do not over lap ?

Report this ad