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Ethical Criminal Investigative Tactics

The heightened concerns for homeland security, especially after the 9/11 attacks, had significant ramifications for law enforcement. Fundamentally, there was a shift regarding the responsibilities and paradigms used in law enforcement. Following the 9/11 attacks, law enforcement agencies in the U.S. were assigned several novel homeland security roles including the protection of key assets and critical infrastructure; securing the country’s sea ports, air, and borders; and coordination of national security at the state level. The shift in the priorities of law enforcement subsequently triggered a change in the way police agencies conducted their operations including the investigative techniques. As Hasisi & Weisburd (2014) explained, homeland security threats are somewhat different from the traditional crimes, which resulted in a significant change in policing philosophy and tactics. Some authors have noted that police departments are being increasingly militarized following the 9/11 attacks as a move aimed at protecting the country from national security threats (Banks, 2016). For instance, police departments across the country are obtaining machine guns, a step that is justified by the need to fight terrorism (Brunson, 2015). Given these changes, the purpose of this paper is to discuss whether the heightened homeland security concerns are redefining the acceptable criminal investigative tactics utilized by law enforcement, and the impact of these changes on criminal prosecutions, police community relations, and the police’s ability to investigate major crimes.

 

The Concern for Homeland Security Redefining Acceptable Criminal Investigative Techniques

The existing evidence suggests that the increasing concern for national security entails redefining the criminal process. Various authors agree that the law enforcement problems are remarkably different, which poses the need for policing agencies to adopt different approaches. Banks (2016) observed that law enforcement agencies in the U.S. have broken the old accepted views that once guided the criminal process. In this respect, Banks noted that the “War in terror” has played a key role in the emergence of a novel criminal process characterized by a shift from the conventional tactics used in the investigation, prosecution, and punishment of individuals suspected of participating in a conduct, which warrants criminal penalties, regardless of whether or not the conduct is deemed as terrorism. Banks further asserted that the emergence of the new criminal process is congruent with the constitutional standards that are shifting because of the pressures driving this new development, which stems from the increased concern for national security. Jarvis & Lister (2014) outlined two attributes associated with this new development, which include extending beyond the limits of what is conventionally determined as the criminal justice system and that what overlaps with the way people have come to embrace the traditional or normal criminal process. The outcome of this development is that policing has evolved to become akin to war wherein it is becoming difficult to distinguish between military actions and police actions (Brunson, 2015). The underlying inference is that military and police activities are converging as evidenced by the development of the new criminal process, which is being accelerated by the increased concern for national security.

Both domestic and international law prohibits the utilization of aggressive interrogation of individuals suspected of engaging in terror activities. Thus, international law and federal statutes outlaw the use of torture (Brunson, 2015). Moreover, degrading, inhuman, and cruel punishment or treatment is prohibited under international law. Moreover, the Constitution places limits to the use of violence by the government. These constraints describe the acceptable investigation tactics that can be used in law enforcement (Hasisi & Weisburd, 2014). However, the heightened homeland security concern is redefining these standards. For instance, in 2002, the Office of Legal Counsel (OLC) under the Department of Justice stated that these prohibitions allow the use of interrogation not intended to result in harm or severe pain, which, in this case, refers to pain resulting in serious physical injury, such as the failure of organs, death, or impaired body functions (Hasisi & Weisburd, 2014). These techniques were justified on the grounds of necessity. As a result, interrogation techniques that are tough and aggressive but safe are considered the new norm.
Because of the increase in homeland security concerns, investigative techniques are being employed to the fullest. For instance, international calls can now be intercepted without a Foreign Intelligence Surveillance Act (FISA) warrant (Brunson, 2015). Other extreme investigative techniques employed by law enforcement agencies to secure the homeland include data mining of financial and communication information. Overall, the new criminal process has been initiated to respond to the increasing national security threats including terrorism (Brunson, 2015).

Impact of the Changes

Police-Community Relations

The new criminal process also exerts a significant impact on police-community relations due to its influence on the civil rights of people. This change is not consistent with the expansion of civil liberties and the rights of people. For law-enforcement agencies to enjoy perceived legitimacy, the latter must operate within defined procedures and rules and be professionalized; however, the new criminal process pays little attention to the procedures. Instead, emphasis is being placed on flexibility and efficiency. Moreover, the homeland security concerns have expanded the discretion for the police, which has resulted in disregard for procedural justice as long as the security of the nation is guaranteed. Thus, this approach to policing is straining policy-community relationships.

Criminal Prosecutions

These changes have also had a significant impact on criminal prosecutions. A notable observation is that individuals suspected of engaging in the activities that are perceived as threatening homeland security are not subjected to the conventional due process under the criminal justice system. For instance, two months after the 9/11, President Bush ordered the military trial and detention of non-citizens, which is contrary to the acceptable criminal justice process (Hasisi & Weisburd, 2014). Under the order, the government started using the Guantanamo naval bases for confining people who have been netted during intelligence, military, and law enforcement operations. An outcome of this approach to prosecution is that individuals caught during the operations conducted by law enforcement agencies might end up in military custody rather than being subjected to the civilian criminal process for prosecution (Brunson, 2015). In addition, prosecutors are arresting and imprisoning suspicious individuals who are believed to have information that might be of help to grand jury investigations regarding terrorist activity. In most cases, prosecutors have embarked on enforcing minor provisions under immigration laws to be able to detain and interrogate illegal aliens considered suspicious such as individuals of Arab descent. Another implication for prosecution as result of the new criminal process is that suspects enjoy few protections and no right to fastened trial.

Ability of the Police to Investigate Major Crimes

Before the change, the traditional investigative process focused on proving criminal charges in a usual criminal court. In this system, investigations were performed by highly professional police force acting within the administrative, statutory, and constitutional limits. However, after the change, the new investigation depends significantly on counterintelligence and military networks that are not willing to conform to the traditional norms, which undermines their ability to conduct investigations on major crimes. However, a key advantage associated with the novel criminal process stems from its efficiency and flexibility. This means that law enforcement officials can devise strategies to suit the needs of a specific investigation. Moreover, the focus of the investigation is not on acquiring admissible evidence in matters regarding homeland security; hence, the rules that limit the range of investigative tactics are not applicable.

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Conclusion

The increased concern for homeland security has redefined the way law enforcement agencies conduct their investigation. This has resulted in the emergence of a novel criminal process that deviates from the acceptable criminal justice procedures and is typified by suspects enjoying few protections. Moreover, law enforcement agencies are using interrogation techniques to the fullest because the limits of the traditional criminal process are inapplicable when dealing with matters relating to national security since the aim of the investigation is not to acquire admissible evidence but rather thwart threats. The outcome is disregard for procedural justice, leading to strained police-community relationships.

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