Searching the constitution

I’ve wanted to say something more about the Bush administration’s trashing of the constitution, and of the bill of rights in particular, with a focus on the fourth amendment. And look: Philip Bobbitt, a law professor at Columbia University, just wrote an op-ed piece in the New York Times that brings us right to the heart of the matter:

Congress just passed, and President Bush hurriedly signed, a law that amends the legal framework for the electronic interception of various kinds of communication with foreign sources. Almost immediately, commentators concluded that the law was unnecessary, that it authorized a lawless and unprecedented expansion of presidential authority, and that Democrats in Congress cravenly accepted this White House initiative only for the basest political reasons. None of these widely broadcast conclusions are likely to be true.

First, a preamble. The Bill of Rights addresses two broad sets of basic rights: those we believe to be essential for all people — the “inalienable rights” mentioned in the Declaration of Independence — and those we guarantee to our citizens and friendly residents, as benefits of living here. It makes sense, for instance, to say that only citizens get the right to petition the government. But if we believe in the rights to a fair and open trial, confronting one’s accuser, and receiving humane punishment, that belief is meaningless unless we apply those rights to everyone.

We can debate, then, on which side of the line the fourth amendment’s promise sits. For reference, here is the text:

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.

Let’s make the simplifying assumption, for the purpose of this discussion, that “the people”, here, refers to citizens. Let’s also take it that, as the courts have so far held, electronic communications are included here, as extensions to papers and effects.

And so, back to Professor Bobbitt.

If a terrorism suspect in Pakistan is having conversations with someone on a computer with a New York Internet protocol address via a chat room run by an Internet service provider in London, where exactly is the intelligence being collected? If the answer is the United States simply because the servers are here, of what possible relevance could that be to the protection of the rights of Americans?

This seems a mostly irrelevant ramble. The intelligence is being collected wherever it is that you collect it. The point, though, is that if the information is being collected in the United States, there are certain rules we have to follow in collecting it. The rules are there to protect us from abuses of power, by requiring those who would collect it to convince a judge that what they’re doing is reasonable. That is what relevance any issue of data collection has to the protection of our rights.

It made sense to require that the person whose communications were intercepted be a spy when the whole point of the interception was to gather evidence to prosecute espionage. This makes much less sense when the purpose of the interception is to determine whether the person is in fact an agent at all. This sort of communications intercept tries to build from a known element in a terror network — a person, a telephone number, a photograph, a safe house, an electronic dead-drop — to some picture of the network itself. By crosshatching vast amounts of information, based on relatively few confirmed elements, it is possible to detect patterns that can expose the network through its benign operations and then focus on its more malignant schemes.

At one level, Professor Bobbitt is arguing for the allowance of “fishing expeditions” — the gathering of information just to see whether we can find anything useful in it. The courts have long held that to be illegal and unconstitutional.

On the other hand, he goes on to clarify what he’s saying in a way that I can start to agree with. We’re not looking, he implies, just to fish in a random pond. We want to fish where we’ve seen fish before, in hope of finding more (maybe bigger) fish. Yes, I’ll buy that, though it's still legally questionable. But it doesn’t support his stand that obtaining a warrant for such information gathering doesn’t make sense. It’s still a reasonable precaution — no, a necessary one — that there be oversight and accountability. The more freedom we give the government in this regard, the more closely we have to watch for abuse.

And yet he goes on to say this:

For this purpose, warrants are utterly beside the point. As Judge Richard Posner has put it, “once you grant the legitimacy of surveillance aimed at detection rather than at gathering evidence of guilt, requiring a warrant to conduct it would be like requiring a warrant to ask people questions or to install surveillance cameras on city streets.” Warrants, which originate in the criminal justice paradigm, provide a useful standard for surveillance designed to prove guilt, not to learn the identity of people who may be planning atrocities.

“Utterly beside the point”? Not at all! And the analogy to cameras on the streets (a tactic that is also not without legal and constitutional challenges) is flawed: one’s expectation of privacy in the streets is minimal; one’s expectation of privacy in one’s telephone calls and online communication is high.

The same holds for Professor Bobbitt’s other examples:

In fact, there are many instances in which warrantless surveillance has been held to be permissible under the Fourth Amendment. Searches in public schools require neither warrants nor a showing of probable cause. Government offices can be searched for evidence of work-related misconduct without warrants. So can searches conducted at the border, or searches undertaken as a condition of parole. Searches have been upheld in the absence of a warrant where there is no legitimate expectation of privacy. The Clinton administration conducted a warrantless search — lawfully — when it was trying to determine what the spy Aldrich Ames was up to. The day after Pearl Harbor, President Roosevelt authorized the interception of all communications traffic into and out of the United States.

In most of these situations, the search is done on someone else’s property, with their permission, and as a condition of being admitted. One can argue that children attending school have no choice — and, again, that practice isn’t free of controversy — but let’s leave that. I’ll note that the same argument might allow the searching of everyone who enters any store, or boards any bus. I wonder how long we’d tolerate that, should it happen.

The two examples that differ are the ones about parolees and Pearl Harbor. In the former case, it’s simply a condition of release — the government is agreeing to release you from prison early if you agree to the conditions, including searches. In the latter, the president was exercising executive power for a limited time, in a clear situation of war. There’s no comparison between that and the long-term unchecked power that the Bush administration seeks for a vague and unending “war on terror”.

It consistently puzzles me to see people making these arguments as though we were trying to stop the collection of all data; we are not. We are demanding that the collection of information be subject to the checks and balances that our constitution sets out. We’re insisting that the authorities be accountable for what they collect and what they do with it.

One good reason not to want popular politics to guide such decisions arises when the public is not well-informed. Partly this can be laid at the door of the incumbent president, the Great Miscommunicator. But mainly it lies with those people who don’t bother giving reasons, don’t explain or give arguments, who prefer to traduce the people with whom they disagree by attacks on their characters, which are presumed to be insufficiently stalwart.

Fair enough. And so I am being clear here: I’m giving reasons, I’m explaining and giving arguments, and there are no character attacks here. Every action by anyone in authority must be traceable and be done with oversight. Everyone in authority must be accountable for his or her actions and decisions. Every action that limits or modifies the rights of American citizens must be reviewed and monitored. I’ve given reasons above, and many times before in these pages.

Some say that if you have done nothing wrong you have nothing to fear from a search. I say that you do; we all do: we must always fear abuse. Abuse that starts small and expands. Abuse that initially only affects the guilty, so we think we don’t mind because it seems to work out. Abuse that eventually touches you, the innocent.

And I say that we can turn that statement around: a government that is doing nothing wrong, that is taking reasonable steps to find terrorists and is not looking to abuse its power, has nothing to fear in being required to convince a judge that those steps are reasonable. The warrants are warranted.