Current Administration's Abuse of Power

Although, our government was designed in such a way to prevent abuses of power (separation of power), the possibility is still there. 

The USA Patriot Act:
Stands for- Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001

Sneak and Peek Searches, section 213:  Gives the government the ability to search someone's property while that person is not there and does not know about it, notifying them after the fact. 

Section 214 gives the government the power to obtain wiretaps under FISA (Foreign Intelligence Surveillance Act).  Warrants obtained under FISA for these wiretaps require much lower probable cause than regular warrants.  The section has been made permanent.  The government needs to prove to a judge that the trace is "relevant to an ongoing investigation".  However, the judge cannot look into the truthfulness of that claim.

Section 215 gives the government the power to obtain personal records through a third party by seeking a FISA court order, also based on lower probable cause.

Section 505 is very similar to 215 only it requires no judicial approval.  In 2000, roughly 9,000 letters were issued and in 2005 around 50,000 letters were issued.  In 2006, an internal audit by the FBI determined that thousands of those letters most likely violated citizens rights and FBI procedure. 

Sections 411 and 412 allow the government to deport and detain aliens associating with terrorists; even unknowingly. The government can hold the person with no judicial review as long as there are grounds to believe that they are a danger to national security.

Section 206: Roving wiretaps which are taps that are not restricted to just one single phone line or computer, but every phone and computer the person under scrutiny may use.  These are national wiretaps, so they raise questions about oversight since they are not limited to a specific judge's jurisdiction.  This section was extended from 2005 originally to 2009, although now the courts must be notified within 10 days that the surveillance is at a new location.

Guantanamo Bay
In November, 2001 President Bush signed an executive order allowing the military to hold foreign nationals indefinitely.  Not long after, the military began sending prisoners to Guantanamo Bay, Cuba.  The Geneva Code does not apply to these prisoners, President Bush argues, because they are not military soldiers they are terrorists. 

For clarity, in Article 5 of the 1949 Geneva Conventions it clearly states that anyone, “under definite suspicion of activity hostile to the security of the Occupying Power” shall “be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial”

To defend the fact that these prisoners have no right to trial, President Bush also argued that they are not to be considered criminals because they were captured outside of the U.S. so trying them through regular criminal procedures is out of the question.  Instead of using the term prisoners, the term unlawful enemy combatants has been adopted. 

All "enemy combatants" can be held indefinitely without the right to trial or the right to challenge their detention. 

Hamdi v. Rumsfeld (2004) ruled that US citizens have the right to challenge their detention in criminal courts.

Rasul v. Bush (2004) denies the assertion that Guantanamo is beyond the reach of the courts.  The courts ruled that detainees can challenge their captivity.

In response, President Bush created Combatant Status Review Tribunals where detainees could challenge their detention on a case by case basis.  In these trials the panels were made up of only military personnel, allowing no lawyers, and taking away the right of the detainees to review documents or testimony related to their capture and detention.  In most of these cases, it was found that the defendant was correctly detained.

Military Commissions Act of 2006
In response Congress passes the Military Commissions Act of 2006.  This suspends habeas corpus rights for those designated unlawful enemy combatants by CSRT's, at the hearing detainees may call upon witnesses, and introduce other evidence.  Hearsay or coerced evidence will be allowed if presiding officer deems it reliable.  Witnesses tried by Military Commissions may not rely on the protections of the Geneva Code.