The warrantless snooping program has been judged illegal. The case got no legal defense before the court. We argue here for the necessity for the fourth ammendment protections and for how they apply to this case. And we argue that the warrantless snooping and the response to the ruling constitute a pattern of dangerous talk that puts the Bush Administration leaders solidly on the wrong side of both law and the Constitution, and puts America on a road to tyranny.
Republicans said the decision was the work of a liberal judge advancing a partisan agenda. Judge Taylor, 73, worked on the civil rights movement, supported Jimmy Carter's presidential campaign.. and was the first black woman to serve in Detroit federal trial court. -- NYT 18AUG06 p1
The issue at hand was the warrantless snooping program initiated by President Bush to monitor calls of those He deems convenient to monitor. The event in question is a judicial ruling that the program is conducted in open defiance of FISA, which provides means to the same end, and in defiance of the Constitutional guarantees that motivated the particular provisions of the FISA law. What Republicans appear to be objecting to is that a judge has ruled that behaving in a way prohibited by the law and by the Constitution is, in fact, illegal.
Now that is a radical, liberal idea if I ever heard one! Unconscionable! What exactly are Republicans saying here, that it is impossible to judge an action in light of a body of law, or a law in light of a Constitutional mandate unless one happens to belong to the Republican Party? Are they saying that the civil rights movement - whose purpose was to give all people in this nation the same legal stature before the law - was evil or wrong? Are they saying that any judge who has ever supported a candidate is incapable of making an unbiased judgement at the bench unless it was a Republican candidate? Are they saying that laws made before President Bush came to power are irrellevant? Are they saying the Constitution is irrellevant? Are they asserting that only judges placed by Bush and those who openly in support of his policies are legitimate? All of these are ideas suggested by this language. Is this what the Republican party has come to? Is this what political discourse in this country amounts to?
If this is the best America can do, perhaps we don't deserve democracy or freedom. If this is the best we can do we have already hopelessly lost both. It would be easy to dismiss one-time pronouncements such as this as being accidental. Or as being ill-advised political fluff. It is tempting to discuss this case in terms of process: to make the story be about Judge Taylor, the Bush Administration, Alberto Gonzales. It is easy to discuss what happens next and who advocates what. To see it purely in terms of the political fortunes of the players. Lots of other writers will do that. Similarly, it is tempting to see this case in light of a problem the practice in question was reputedly designed to address.
One fundamental issue, the issue that holds more at stake for Americans than any other is the issue of the rule of law and how Americans choose to deal with threats to the rule of law. Specifically, what is to be done in the case where all members of the executive branch hold the idea of rule of law with such contempt that they refuse to enforce laws of the land, they make de-facto laws, they enforce laws in ways that are at odds with bodies of law, and they conduct programs that either have no basis in bodies of legislation or run counter to the Constitution? Well, that is a rather big question. We will ask instead, whether the fourth ammendment applies, whether it is a useful notion still, and whether it makes sense to believe that the administration is acting in good faith and interest of all Americans as judged by his acts and the rhetoric of his administration.
Judge Taylor cited the Fourth Ammendment as the reason for the unconstitutionality of the warrantless snooping program. In light of the fact that the Bill of Rights places certain rights outside the bounds of the Legislature, that the Constitution grants the right to make law, and that it grants no special priviledges to the Executive to create law or to enforce non-existent laws, it would seem that Taylor's verdict should be on solid footing. In fact, were we talking about the practice of law a few decades ago, the idea that the case could even get this far would be laughable.But it has. So we need to think more carefully about what is going on here.
The administration simply did not defend the warrantless snooping program. They disputed none of the facts in the case. Presumably there are several possible reasons for this. The first reason might be that there is no way to defend the administrations position on the basis of the facts. The law was broken. And everybody knew it. The second reason might be that disputing the facts would require a discovery process and a production of evidence, and the evidence would simply be too embarrassing to the administration. The third possible reason might be that the administration was pretty sure that they could win the case on appeal or keep it tied up in appeals until it did not matter any more.
Whatever were the reasons, the program is without warrant. It defies a 1978 FISA law designed specifically for the purpose in question. And that law made it rather easy to get warrants, even after snooping had started. One authority is quoted as saying that since the FISA law was enacted less than five times has the court in question declined to issue warrants. So the reason for the program can have nothing at all to do with actually catching potential criminals or terrorists. One has to assume that the purpose of the snooping is actually to establish some sort of precedent. One has to assume that act is not at all about catching terrorists, but about subverting the Fourth Ammendment in the Bill of Rights.
Let's start by looking at the Fourth Ammendment. There were very specific historical reasons for the Fourth Ammendment, most of which I do not know because I have not read much English history. Some time before the American Revolution there was a presumption that the executive of a country or one of his petty officers could break into any house and remove any of its effects in the name of the king. The provision would rarely be used for the purposes of prosecuting legitimate criminal cases.
Rather it would be used to harrass, cow, or silence political dissenters. The charge in such cases was almost always 'treason," not because a person contemplated an act against the nation, but because a person posed a threat to some aspect of power claimed by the monarch. Although none of the framers of the Constitution actually lost their heads in such matters, they were ever cognizant of the threat. And they considered it real. When it came to considering the rights of the sovereign to conduct searches and seizures, they were willing to grant such when there was reason to believe they might serve some lawful purpose. But they judged that illegitimate searches ill-served both the purposes of government and the people served by government. In framing the Bill of Rights they reasoned that a government incapable of governing without trampling on peoples' fundamental rights did not deserve to govern. That was the thesis of the Revolution. And it's a good thing to bear in mind. So, what does the fourth ammendment say? It guarantees that
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, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
It says that probable cause must be established if one is to search a person's home or things they carry. And that the process must be moderated in a public and open way and supported by legally binding oaths. It further forces searches to be confined to fixed and pre-defined locations.
There is no language in the ammendment regarding private communications entrusted to a third party. But private communications are personal effects. The ommission could be explained in two ways.
One might be that they believed one's effects were private when they were in one's own control but public when they were entrusted to some third party or some agent paid to and presumed to represent their interest. Let's illustrate using an example: Suppose you and I lived in that day. You are a prominent politician and you have some valuable or sensitive documents that you want me to transport for you by horseback. You have paid me ten days wages to carry them to another private party some two day's ride from you. I tuck them into a satchell strapped to my horse, and ride away. At the end of one day's ride I stop at a tavern to feed my horse and get a good night's sleep. Would you expect me while I am there to post the documents on the walls of the tavern for all the people of the tavern to see? No. Why not? They are private documents. They are your effects. Now, what if there were some men in government staying at that tavern who were political opponents; would you expect me to show the documents to them? No. Why not? It might get you in trouble. Or it might embarrass you before them. Or it might reveal plans of how you intend to foil one of their stupid government decisions. What if they were law-enforcement men working on a very difficult murder case whose solution would vault them to a position of fame and power? No. Why not? Perhaps they could use information in those documents to wrongfully pin the crime on you? It seems that as an agent representing your interests, documents of yours entrusted to my keep ought to be protected as if they were left in your own. You have paid me to act in your interests. And while your personal effects are in my care and I am the agent of your interests, my interests are your interests, my documents are your documents, and my protections under the law are your protections.This sense seems to be generally reflected in laws predating the Bush era.
There is an alternative interpretation to why the Bill of Rights does not define the status of personal effects in the hands of a paid agent. It seems reasonable to imagine that the framers of the Constitution believed as did Secretary of War Henry Stimson early in the twentieth century that "Gentlemen do not read each other's letters." And if they indeed believed this, then they would have believed that there would be no reason one might need to guarantee a right to privacy in private communications. It would be like legislating that there be air.
There has been a long and raging debate about right to privacy among the brightest and most prominent Constitutional scholars. Much of it hinges on whether one wishes to construe the meaning of the Bill of Rights narrowly and literally or broadly and in a way consistent with the ideas and ideals of the time. The first is much more amenable to making quick and convenient court decisions or and much more useful if one has set out to wrest as much control as possible from a country's citizens. The latter is consistent with the preservation of the ideal of personal liberty but it requires more heavy lifting sometimes when it comes to court rulings. There is more risk of odd side effects occurring because the lines are a bit fuzzier. It is easy to get bogged down in the highly technical in nature of the arguments, but where one ends up must be determined by how one thinks about the need of personal freedom before the law. And how one balances this against the need for law to be completely unambiguous.
Assuming that one agrees that the Fourth Ammendment actually means something, it strikes one as very curious to argue that information or articles being transmitted by a paid third party on one's behalf could be considered to be public. For if one wished to cause information to be public one would either post it in a public place, or one would pay a party to make it public. Similarly, if one wished to make goods or articles available to the public one would certainly not transfer them by private means to another private party. Newspapers existed then and were assumed to be media appropriate for the business of making things public. Therefore paid third parties or agents who carry goods or information must be considered extensions of the person who pays them. Personal effects in the care of a paid agent regardless of their physical nature or manifestation are personal effects and the paid agent is or ought have the same protections of the law as the person they represent.
By this argument warrants would be required to monitor all telephone calls. And just in case this is not defined clearly enough by the Constitution, it is defined clearly in the 1978 FISA law. The law requires warrants. And it provides emergency measures for urgent cases. By the same arguments we got here, warrants would be required to monitor e-mails and other electronic communications whose purpose is assumed to be private in nature.
The Fourth Ammendment and the Constitiution which deliberately and purposefully divides powers among the judiciary, legislative, and executive branches are both legacies of the American Revolution. While Americans are quick to claim the Revolutionary War legacy as our own, too frequently we seem to be incapable of grasping even the simplest of its many profound benefits. We make the men of that war heroes. Then we discard precisely the things for which they fought. More than any other lasting effect of their work, the framers of the Constitution feared that the freedoms for which they had risked life and treasure would be squandered by Americans who could not appreciate the gift their sacrifices made possible. The revolution was not long past, and the Framers were interested in protecting for Americans the very means by which Revolutionaries managed to throw off the chains that bound them. Revolutionaries would have wished to be able to conceal munitions in haywagons and convey them on public roads with impunity. The Revolutionaries would have been the ones toting guns and gunpowder in haywagons and the redcoats would have been the government officials calling them terrorists.
We don't get a rhetorical choice here. If we argue that defying an unjust government is categorically wrong, then the the Revolution was wrong. But then we are forced to rewrite the Constitution from scratch. In today's poisonous political atmosphere, I'd rather inhale cyanide. On the other hand, if we argue that the Revolutionaries were heroes and their cause was just and noble, then we have to grant that the Constitution they wrote is still a document we wish to defend. And we are bound to defend it. Not just its words, but the ideas for which they stand. And with approximately the same vigor. We must be willing to sacrifice our own lives for the freedoms it grants.
It is reasonable to feel some discomfort thinking that we might not be doing everything possible to fight terrorism. It is easy to think terrorism is a big threat and that we need to do precisely as the government says to beat that threat. But in the grand scheme of things terrorism is not America's biggest problem.
Terrorism is probably not on the top 100 problems America faces. More people die every week from medical errors than have died in America in the last decade from terrorist attacks in America. Are we willing to suspend the Constitution to fix that? I hope not. Terrorism, per se, has has not been a force menacing the economy or the environment. It has threatened public health only hypothetically in risk assessments. Its chief costs have been incurred in the so-called wars against it whose fruits may be judged dubious, at best.
Intelligent people must choose between a world that occasionally includes acts of terrorism and one in which they face the terrors of a repressive government in public places, in private communication, in commerce, and in their homes. It is not a happy choice. But if we are to honor the memories of all who have fought to uphold and defend the US Constitution, we must be willing to take a few more casualties in their honor. By casualties I mean dead civilians killed as a result of real or reputed terrorist action. We must assert that this is the cost we are willing to pay to guarantee our freedom. When we are able to ignore terrorist acts, those acts have no power over us, and the terrorists are defeated. Until then, we must be willing to recognize and condemn language that compares defending the Constitution to surrender:
"It is dissappointing that a judge would take it upon herself to disarm America during a time of war," said Peter Hoekstra, Republican of Michigan, the chairman of the House Intelligence Committee. -- NYT 18AUG06 pA15
No. It is disappointing that almost every person of stature in the Republican party seems to have failed to read and understand the Constitution of the United States. It is disappointing that they do not know what war is. It is disappointing that they have not read the Bill of Rights. It is disappointing that they do not understand its protections. And to the extent that the political powers-that-be have declared war on anything, it is disappointing that they have declared war on those very protections. It is disappointing that so many prominent Republicans and not a few prominent Democrats are using terrorism as an excuse to declare war on rights guaranteed by the Constitution. It is disappointing that America has spent six years focussed like a laser on a problem whose existence remains speculative and whose importance is marginal. It is disappointing that these operatives are willing to sacrifice the freedoms of their children and grandchildren in order to win the next election. The war against the Constitution is being fought on many fronts. And it involves a number of acts of defiance against specific limits placed on the Executive by the Constitution.
The case at hand may be the most important one, but it is not the first. The current administration has repeatedly claimed that it has special powers by virtue of the fact that America is at war. If America is at war then it is an unconstitutional war, for it was not declared by Congress as required by Article I Section 8.
The Congress shall have power .... To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
With respect to the armed conflict in Iraq, one might argue that it is a de-facto war because it meets all of the formal requirements of war except for the legal requirement of declaration. But again, if America is at war, it is an extraconstitutional war. And the president's acts are inconsistent with his constitutional powers.
Unfortunately war language used to defend governmental attacks on personal liberties. The language is "war on terror." Not "war on states that sponsor terror." Not even " military action against terrorists" themselves. "War on terror." Such language is terrifying. It ought to be. It is positively Orwellian. We are declaring war on a concept. How many people will die before that concept is defeated? How are we to know when we have won the war on a concept? And is it really wise to try to beat terror by using means of terror? One can sometimes fight fire with fire but a lot more gets burned that way. Fighting a concept is an open-ended engagement. We fight for so long as the fighting is deemed to be in the interests of the guys who stand to gain from it.
After that, regardless of the state of affairs, regardless of the question of correct action, regardless of what is lost or why, we do the most politically expedient thing. This is not war. It is theater. It is a costly public relations campaign. So what is the outcome of this campaign? It, along with some help from his friends, got Bush through the 2004 election.
If one counts all the costs of Afghanistan and Iraq, America has spent something like one trillion dollars and what has it gotten? Opium production in Afghanistan has been restored to pre-Taliban levels. Last year's was a record crop. And oil prices are up. As high as they have ever been. And there have been a few unproductive court trials. Jose Padilla was arrested as a terrorist. He was finally charged, but the charges are so flimsy that the court has come just shy of tossing the case out without hearing it. That after about four years of preparation by the prosecution. In the Massoui trial there was a guilty plea; but in retrospect nobody - not al-Quaida members, not the FBI - believed Massoui was part of a terrorist plot to fly airplanes into anything. The final result is that we have a number of laws giving the Executive unprecedented powers of surveillance.
In short, the government has failed to make its case that there was a terrorist plot on 9/11. In fact, the government has failed to try. Evidence has been systemmatically whisked out of reach of public examination as if there is something to hide. If there really was a terrorist plot why is it that all the evidence for it has been systematically sequestered or destroyed? Why is it that there have been no public trials? No arrests?
The alternative hypothesis about 9/11 is crazy, paranoid. Yet even if there is a tiny chance that it is true ( remember, physical evidence can be hidden, destroyed, or misinterpreted, but physical evidence does not lie,) it is worth contemplating, for to imagine otherwise until it is too late trades away two hundred years of democracy in return for precisely nothing.
The alternative hypothesis is that 'terrorism' is destined to be a political label for 'dissent.' And that the goal of all the actions of the Bush regime has been to sieze absolute and irrevokable control of all levers of power in a way that facilititates precisely this kind of logic and practice. The argument to be made for this is long and involved. And there are many who will - regardless of the evidence - always regard this idea as being so much hooey and who will be inclined to run screaming into the darkness. Who could blame them? I'd like to do the same. If, instead of arguing about what happened in the past, we look at what threatens in the future, we can see a kind of puzzle that has just two big interlocking pieces. If one were to put together a plan to smash all political dissent two provisions would have to be in place
The White House is backing a plan, drafted by Senator Arlen Specter, Republican of Pennsylvania, with the blessing of President Bush, that would allow secret court review of the legality of the operation.On the surface, this appears to be about wiretapping. But if a separate court is convened, there will then be a precedent for a secret court for other sorts of procedings, the lid of Pandorra's box will have been cracked open. Then what is to prevent the demons' escape? In two years from now how will a reader of this blog know, for instance, whether my own trail of breadcrumbs has disappeared in is because I chose to stop writing or because the Attorney General declared me a terrorist, had me gassed and sold my meagre belongings? It sounds absurd. It sounds paranoid. But this is how it starts. The Bush administration argued for secret court proceedings of Jose Padilla. And the administration has been making the same argument steadily since. FBI whistleblower Colleen Crowley put it this way:
..you know, the big issue here is whether a suspected terrorist can be dealt with in our criminal courts. And if you buy the argument, as many administration officials have made now, that this actually might be the last case. I've actually heard that, people saying this is the last time you're ever going to see a terrorist dealt with in our criminal courts. And, of course, if you don't deal with them in the criminal courts, then you're allowed to go around all criminal procedure and the Constitution. Colleen Rowley 06APR06
In the absence of hints about where we might be headed with efforts to allow the executive to arbitrarily name people terrorists, then whisk them away without trial, the effort would be scary. Terrifying even.
Arguments to suspend the Constitution cannot be taken lightly even when there is actually a real war on. The Constitution itself makes certain special provisions in cases of real war, just so that the whole body of Constitutional law need not bear the brunt of a frontal attack from well-meaning politicians when real threats threaten. But the language Cheney is using makes voters who vote for Ned Lamont accessories before the fact of any terrorist plot when he says that "people who exercised their constitutional right to vote for change (ie: Conn. primary) are helping terrorists" ( Media Matters )
Again, this could be dismissed as so much political blather were it not for the language of the so-called Patriot Act which allows the Attorney General to designate who is a terrorist. Cheney's language, viewed as a cognitive framing device, is to set up the expectation that authorities in the White House might at some point actually designate people it dislikes - people who vote for the wrong people for instance - as terrorists and have them simply disappear from view for evermore.
Judging from the Padilla case and the two lunchladies in Pittsburgh, the practice will start small with "throwaway" people that are assumed to be of no import or interest to the powerful or the cool. Their cases lost will set a precedent, and the Attorney General will be free to work up the food chain. Once people start disappearing this way the US practice of terrorist-suppressing jurisprudence will make Soviet Russia's court practices seem tame, friendly, civilized by comparison. At least in those cases the sham trials were held in public.
The pieces required to make this wretched hypothetical machine work are just about in place. There is a body of legislation that gives the Attorney General the power to designate who is a terrorist. There is a movement afoot in Congress to establish secret courts that 'hear' terrorist cases. There is an Attorney General who is willing to argue that people named as terrorists no longer have the protections of law. If one were to set up a system of government to rule in exactly the same way as did Saddam Hussein, what would be different? Did he not also arise as prime minister out of an elected parliament? Did he not also gain his level of absolute power by systemmatically eliminating opposition? How is it Americans can be terrified of the man yet completely sanguine when our legislature and our executive deliver our fates to laws and legal processes that have roughtly the same protections? The protections offered by these methods are ones Americans do not need and cannot afford.
Those who trade freedom for security deserve neither and lose both. - Benjamin Franklin
Copyright: Stephen R. Brubaker, 2006. All Rights Reserved