Homeland Security: Legal and Ethical Issues
Abstract
Homeland Security has been crucial in defending the nation from terrorist attacks and mitigating the effects of natural disasters. The pragmatic strategy and resource for the country is considered to be providing protection to the vital infrastructure. As a result, when facilities are destroyed, the effects often go beyond simply shielding a single organism from threats and dangers. The National Security Strategy (NSS), a document that describes potential initiatives by the present administration over the coming year or years, is at the core of the national Security Council’s approach to national defense. Also covered here are homeland security concerns and the difficulties encountered during countermeasure operations. This report also provides a detailed analysis about balancing between protecting the homeland with privacy and civil liberties with regards to legal, ethical and political frameworks.
Introduction
The department of Homeland Security is a government legal agency that majorly works together with various levels of government. For instance, the private, individual citizens, and nonprofit sectors ensure that the United States experiences security by curbing the issue of terrorism, pandemics, any adverse natural disasters, and cyber-attacks.
Considerably, the Homeland security department serves an essential purpose in reducing the problem of terrorist activities, which is deemed a significant challenge. The paper elaborates some of the vital documents for legal consideration in the same context, the critical infrastructure and essential sector facing the most considerable risk when the U.S. government attempts to harden the target. Furthermore, the paper aims to describe the challenges related to protecting the homeland and the critiques of the homeland security enterprises.
Most Important Document for Legal Consideration
The NSS of 2022 is a keystone document that provides the azimuth for prominent government leaders to guide them through the execution of core functions at the federal departments and agencies. It has 48 pages of content; it outlines essential issues that Biden, the current President of the United States of America and by extension, his National Security Council, see as of paramount concern for the United Sates. Broadly, the president looks to
- protect the homeland,
- promote U.S. prosperity,
- leverage strength to preserve peace, and advance the U.S. influence in the world (NSS, 2022, p. 7).
Justification
The National Security Strategy of 2022 is undoubtedly the most influential important of the documents (NSS, 2022). Importantly, it serves as a framework that guides the many various processes that the government is tasked with. The primary purpose of the NSS throughout the years has been to organize the efforts of our national assets to secure the U.S. from attack (NSS, 2022). Without it, there is no uniform plan from the top that gets all of the assets on the same page. Additionally, it provides a clear path that leadership of every government organization can utilize to allocate their assets and objectives.
The document tends to trace its lineage back to the period just after World War II. The National Security Act 1947 mandated that the president create a National Security Strategy Report that served as a means of communicating the foreign policy and national security plans of the Executive Office (“Office of the Historian, Foreign Service Institute” 2022).
Therefore, it is composed of six broad areas of emphasis; it outlines the president’s vision for America’s international role, highlights important priorities the administration would like to focus on, directs resource allocation, articulates to the world what the U.S. departments and agencies, and communicates to the American public what the national security efforts are (Weaver, 2018). The document is a means for the sitting president to speak to the American people, the world, and the government about the administration’s priorities and how it ought to obtain them.
If these plans are not updated yearly to account for changes, the whole globe may be operating with knowledge that is out of date or no longer relevant to the risks that nations confront. For instance, the absence of a national policy that tackles the challenges of global pandemics such as COVID-19 is a major factor. The 2022 NSS included a short discussion on pandemics. In the context of legal and ethical issues, the NSS of 2022 states that, “Our intelligence relationships with our allies are a strategic asset that will increasingly factor in to our competition with our rivals, especially in technological competition” (NSS, 2022, p. 17).
It further states, “we will use force to disrupt and degrade terrorist groups that are plotting attacks against the United States, our people, or our diplomatic and military facilities abroad…We will do so consistent with domestic and international law and in a manner that minimizes civilian casualties” (NSS, 2022, p. 31).
Therefore, the above statement indicates that the NSS would safeguard the country from terrorist assault at the expense of human casualties, because minimizing civilian casualties does not imply eliminating them entirely.
Information Technology Sector
As it involves the cyber evaluation of our nation’s healthcare system, private assets, business, academic institutions, and national defense, the information technology industry today poses the greatest threat. Interdependencies within the ICT sector create a complex ecosystem susceptible to affecting all other infrastructural sectors when interruptions occur. Cybercrime and cyber terrorism by state and non-state actors have risen over the last decade. Approximately 662 data breaches were reported in 2012, up from 421 in 2011. (Selchow, 2017). Nevertheless, there have been many breaches reported, and the number has declined in 2018 and 2019.
The figure indicates just the significant cybercrimes committed in the United States over the last decade, omitting foreign data (Selchow, 2017). Therefore, unless appropriate mitigation strategies are implemented to reduce unlawful activities, they will continue to grow.
Legal Issues to Consider when Attempting to Harden the Target
Jurisdictional Issues. When such assaults occur, governments throughout the world confront a variety of challenges. The question of attribution presents a dilemma. As we have seen, it has been difficult to trace the hacks aimed at helping Trump win the election to Russia. Despite all financial information, intelligence, and technology, the U.S. government has been unable to provide conclusive proof, and Russian President Vladimir Putin has denied responsibility for the assaults (Brown & Fazal, 2021).
If the party behind the cyber-attack does not openly admit culpability, it is impossible to identify the attackers. Second, how to respond to such assaults and what to do when they come from a foreign nation, rendering the assailants legally untouchable even if they can be identified, is a major concern. There are no passport inspections, border control, or other procedures; hence, conventional government is inapplicable. Therefore, it is essential to examine who determines the global internet rules and understand how the statutes are implemented.
Ethical Issues to Consider when Attempting to Harden the Target
The ethical challenge associated with cyber security concerns is the topic of security and privacy. The issue is: what are the relative significance of civil rights and public safety? Which takes precedence if neither can be completed simultaneously? The Fourth Amendment protects individuals from unwarranted searches and seizures of private correspondence. However, it is unclear if messages sent via a third party are deemed private (Hutchings, 2021).
Since the information was willingly supplied to the third party, the government claims no responsibility. Obviously, this argument disregards the reality that it is almost impossible to send an e-mail to another person without utilizing a third-party Internet service provider (ISP). In this scenario, personally identifiable data might be taken by cyber-attacks, and the government could be sued for allowing such information to leak despite having a National Cyber security agency, which is funded by the taxes of its citizens.
Balancing Protecting the Homeland with Privacy and Civil Liberties
Legal Conflicts to Consider
Homeland security and civil rights have been the subject of a constant back-and-forth balancing effort. In times of lesser dangers, the scale swings back toward an emphasis on civil freedoms, and when the amount of threat rises, it swings toward a reliance on protection. In 2009, for instance, there were 43 fatalities due to terrorism in the United States, and domestic terrorism was the leading cause (Alperen, 2017). The massacre at Fort Hood and the gun assault on a New York immigration facility accounted for 27 of the total fatalities. In contrast, 2,759 persons lost their lives in the 9/11 assaults (Agnes, 2018). As the national security danger becomes more tangible and the public perceives that it may affect them, support for further measures at the expense of privacy increases.
Ethical Conflicts to Consider
Civil Liberties Lost Post-9/11 is an example of an ethical dilemma that must be considered when striking a balance between safeguarding the homeland and preserving privacy and civil liberties. The torture argument likely falls beyond the scope of civil liberties. The right not to be tortured is a basic human right, not only a civic liberty. Nevertheless, against the background of the discussion on torture, a more subtle degradation of civil liberties is underway, which seems to be a lesser evil. As a result, lost civil freedoms are quickly forgotten as a result of a process of normalization that incorporates extreme measures into the legal system.
Shortly after September 11, 2001, American Supreme Court Justice Sandra Day O’Connor observed, “We are likely to experience more restrictions on our personal liberty than has ever been the case in our country” (Alperen, 2017). In response to vulnerabilities to our national security, she cautioned that the government would depend more on international regulations of war than on our treasured constitutional standards for enforcement actions.
Political Conflicts to Consider
It has been challenging to build adequate law enforcement measures, often owing to jurisdictional and geopolitical difficulties. Every nation-state is a legitimate country, meaning that only its own law enforcement has the authority to enforce its laws. Consequently, a court’s jurisdiction is limited to offenses committed in its assigned region. If a felony is committed in the United States, only the federal government has the authority to prosecute and apprehend the perpetrator. Even if law authorities in other nations are interested in apprehending the culprit, they cannot just cross the border into the United States and apprehend them. Edward Snowden, who disclosed sensitive information about the United States government, is one of the most sought offenders (Kegu, 2019). Snowden had sought refuge in Russia, which refused to repatriate him despite the U.S. law enforcement’s desire to visit Russia and apprehend him since have no authority to breach Russia’s national sovereignty.
Does this Present Challenges in Homeland Security
In the United States, substantial control of the media and freedom of speech is not seen as a politically feasible option, and government agencies seldom attempt to censor or otherwise restrict media coverage or freedom of speech when media outlets or people decide to disclose information. This is a challenge for homeland security, since the act of preserving classical information is dependent on the media and the freedom of expression of individuals at this point.
Instead, government agencies’ first choice is to withhold information by asserting national security secrecy. However, when government authorities determine that impending disclosure of material may constitute a danger to national security, the most frequent response is the U.S. legal system; hence, presidential fiat is seldom used. Based on these restrictions on the authority of government to oversee the release of information, the American media culture and freedom of speech tend to depend on investigative self-regulation, media oversight, and restrictions on freedom of speech. Within the framework of this system, the media will self-regulate the coverage and depiction of potentially disagreeable, contentious, or sensitive news that might compromise efforts to combat crime and terrorism.
Critique of the Homeland Security Enterprises Capability to Meet Future Challenges While Balancing Civil Rights
Homeland security employs terrorist profiling as one of its countermeasures to identify prospective terrorists. As a tactic for implementation, DHS utilizes interrogation, monitoring, and imprisonment of individuals who match the description. Despite attempts to balance the legislation with Civil Rights, this presents a substantial threat to innocent persons and may incite racial profiling in the future. If suspects meet certain criminal characteristics, they may be held administratively for interrogation (Balko, 2020).
The new terrorist profile consisted of the following characteristics: male gender, Middle Eastern descent, early adulthood, Muslim religion, and temporary visa status. Hundreds of males meeting this description were administratively held by the FBI and the Immigration and Naturalization Service during the severe security crisis that followed 9/11 (Balko, 2020). Civil rights activists denounced these detentions and rules in great detail. Critics contended that the detentions were illegitimate since the great majority of inmates had not been charged with breaking the law and no felony suspicions had been expressed.
Conclusion
Historiographically, the American argument between homeland security and civil liberties has been criticized. This research highlighted some of the difficulties involved in reconciling civil freedoms with domestic security requirements. However, there is often a conflict between protecting human rights and protecting the nation. This contradiction is mirrored in legal, ethical, and political discussions over how to achieve both objectives.
The contemporary homeland security industry functions in a vastly different context from the one referred to by certain experts. Technological breakthroughs, legal frameworks, culturally accepted values, ethics, and the challenges to our country are in a constant state of evolution. The NSS is at the core of all and a driving force for homeland security. The NSS often outlines the important tasks of the president and its core agencies, providing the azimuth to direct them in their incursion of fundamental functions at federal departments, which include the office of the national Security Council and anti-terrorism.
References
Agnes, A. R. (2018). Homeland Security/Emergency Management Budgets by Each U.S. State: Why do some states allocate so much more money than others do? Political Science 26(1), 1-60. Web.
Alperen, M. J. (2017). Foundations of homeland security: Law and policy. John Wiley & Sons.
Balko, R. (2020). There’s overwhelming evidence that the criminal justice system is racist. Here’s the proof. The Washington Post. Web.
Brown, J. M., & Fazal, T. M. (2021). # SorryNotSorry: Why states neither confirm nor deny responsibility for cyber operations. European Journal of International Security, 6(4), 401-417. Web.
Hutchings, A. (2021). Flying in cyberspace: Policing global travel fraud. Policing: A Journal of Policy and Practice, 15(1), 103-118. Web.
Kegu, J. (2019). Edward Snowden wants to come home: “I’m not asking for a pass. What I’m asking for is a fair trial.” CBS News. Web.
“National Security Strategy.” (2022). Biden-Harris administration’s national security strategy. Web.
“Office of the Historian, Foreign Service Institute.” (2022). National Security Act of 1947. Web.
Selchow, S. (2017). Resilience and resilient in Obama’s National Security Strategy 2010: Enter two’ political keywords’. Politics, 37(1), 36-51. Web.
Weaver, J. M. (2018). The 2017 National Security Strategy of the United States. Journal of Strategic Security, 11(1), 62-71. Web.