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Category: Criminal Procedure

5

Gun Buffs And Fourth Amendment Lovers Unite!

Why haven’t two groups who adore individual rights come together? I would expect gun rights advocates (we’ll call them the NRA as shorthand) and privacy advocates (let’s name them the ACLU) to agree that government intrusions into personal and family space are bad. For some reason, the NRA has not bought into the Fourth Amendment part of this agenda. At the same time, I’d think the ACLU would benefit – politically, at least – by bringing the NRA into its civil liberties tent. And nothing about the gun rights agenda seems antithetical to the goals of the ACLU.

I can think of a few reasons why the NRA hasn’t joined the privacy bandwagon. First, NRA members/gun lovers may see themselves as “anti-crime” and they may see a weak Fourth Amendment as good anti-crime policy. This makes sense as long as they don’t imagine gun ownership as a crime. Second, the NRA may not like the public relations consequences of supporting privacy rights. Most of today’s Fourth Amendment cases involve the privacy rights of drug dealers and other unpopular characters. The NRA may not want to align itself with these miscreants, even on legal issues. Too many people already connect guns with crime.

I think the best explanation of all is that NRA members believe they’ll never need these protections – an assumption that is based on what I’d term a Second Amendment strategy. I suspect that the NRA believes legislatures won’t ban guns and, in any case, courts will strike such laws under the Second Amendment. There are two problems with this analysis. First, it is far from certain that courts will enforce a personal right to possess any and all firearms. There is little judicial support for this broad Second Amendment view, though some commentators have certainly made the case. Second, it is quite plausible that some jurisdictions – particularly states with substantially urban populations – will eventually prohibit entire classes of guns. And as Americans become more and more comfortable with governmental intrusions, generally, regulation of guns may become much more imaginable. At that point, gun owners could find great utility in the Fourth Amendment.

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2

NSA Surveillance: Blog Post Roundup II

In addition to the blog post roundup I did yesterday, here are more blog posts about Bush’s NSA surveillance worth reading:

David Cole, Bush’s Illegal Spying (Salon, Dec. 20, 2005)

“Attorney General Gonzales contends that the authorization by Congress to use military force somehow implicitly gave the president power to wiretap Americans at home. But nothing in the authorization even mentions wiretaps. And that claim is directly contrary to the express language in FISA limiting any such authority. While intercepting the enemy’s communications on the battlefield may well be an incident of the war power, wiretapping hundreds of people inside the United States who are not known to be members of al-Qaida in no way qualifies as an incidental wartime authority.”

Marty Lederman, Another Reason Why the AUMF Argument is Wrong, and Why This Surveillance Program is Lawless (Dec. 20, 2005)

“1. Because it’s not necessary that even one of the parties to the communication have been part of Al Qaeda, it explains why a FISA court would not have granted authority for these intercepts in the first place — which is why the Administration could not work within the existing (very deferential, pro-government) authorities.

2. Obviously, the NSA protocol is simply not covered by the terms of the AUMF itself, because it reaches conduct by NSA against communications of persons who are not “those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”

3. It’s also presumably not a “fundamental incident of war” for the Executive to wiretap a communication between two persons, neither of whom is suspected of being part of (or an agent of) the enemy (let alone the military arm of the enemy). This is not only another reason that the AUMF (and Hamdi) does not authorize these interceptions; it also means that not even the boldest assertion of Commander-in-Chief authority would support this program.”

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7

NSA Surveillance: Blog Post Roundup

There is a lot of great analysis and opinion in the blogosphere regarding Bush’s authorization of warrantless NSA surveillance. Here are some useful links:

News Articles

James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts (N.Y. Times, Dec. 16, 2005) (original article to break the story)

Scott Shane, Behind Power, One Principle as Bush Pushes Prerogatives (N.Y. Times, Dec. 17, 2005)

Peter Baker, President Acknowledges Approving Secretive Eavesdropping (Wash. Post, Dec. 18, 2005)

AP, Bush Says U.S. Spy Program Is Essential and Legal (AP, Dec. 19, 2005)

Statutes, Cases, and Other Materials

Foreign Intelligence Surveillance Act (FISA) (1978)

Authorization for Use of Military Force (Sept. 14, 2001)

Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence (Dec. 19, 2005)

United States v. United States District Court, 407 U.S. 297 (1972) (aka the Keith case) (Fourth Amendment analysis of national security surveillance)

Hamdi v. Rumsfeld, 124 S. Ct. 981 (2004) (analysis of the scope of authority granted by Congress’s Authorization to Use Military Force)

Blog Posts (in no particular order and by no means comprehensive)

Orin Kerr, Legal Analysis of the NSA Domestic Surveillance Program (Dec. 19, 2005)

“My answer is pretty tentative, but here it goes: Although it hinges somewhat on technical details we don’t know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act.”

(This is the most lengthy and detailed analysis to date.)

Orin Kerr, Domestic Surveillance by the NSA? (Dec. 15, 2005)

“While the statutory privacy laws have an exception for this type of monitoring, see 18 U.S.C. 2511(f), and the constitutional limits on e-mail surveillance are uncertain even in traditional criminal cases, the constitutionality of warrantless interception of telephone calls in situations like this is really murky stuff.”

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21

Beyond His Power: Bush’s Authorization of Warrantless NSA Surveillance

NSA2a.jpgIn this post, I aim to explore more in depth whether Bush had the legal power to authorize warrantless NSA surveillance. As I was putting the finishing touches on this post, I noticed that Orin Kerr beat me to the punch, and I find that we’ve identified the same issues and are in substantial agreement. His post is a lot longer and more detailed than mine (which is quite long itself), so read mine for a broader overview and Orin’s for the treatise-length account.

1. Fourth Amendment

The Fourth Amendment standards are somewhat vague. The Supreme Court declared in United States v. United States District Court, 407 U.S. 297 (1972) (often called the Keith case) that the Fourth Amendment required a warrant for the government to engage in electronic surveillance for domestic criminal investigations. However, the Court noted:

. . . [D]omestic security surveillance may involve different policy and practical considerations from the surveillance of “ordinary crime.” The gathering of security intelligence is often long range and involves the interrelation of various sources and types of information. . . . Often, too, the emphasis of domestic intelligence gathering is on the prevention of unlawful activity or the enhancement of the Government’s preparedness for some possible future crisis or emergency. Thus, the focus of domestic surveillance may be less precise than that directed against more conventional types of crime. . . . .

Different standards [for gathering domestic security intelligence] may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens. For the warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection.

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6

How Much Government Secrecy Is Really Necessary?

classified1a.jpg

Responding to reports that revealed that the President authorized the NSA to conduct warrantless surveillance within the US, President Bush said:

“The existence of this secret program was revealed in media reports after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk.”

I’m growing weary of arguments like this. How, exactly, does the revelation of the fact that Bush authorized the NSA to conduct surveillance — possibly exceeding the limits of his lawful powers — put “our citizens at risk”? Why is every disclosure about the extent of the government’s surveillance somehow assisting the terrorists?

The argument seems to be that we can’t have a national debate about the nature and extent of government surveillance because such information will help the terrorists. But central to any viable democracy is a government that is publicly accountable, and that requires that the people have the information they need to assess their government’s activities.

Recently, I blogged about a story involving a secret DOD database of protesters. And there’s a debate going on about a secret regulation in the Gilmore case. The debate has focused on whether the secret information in the case is really a regulation, a law, or something else, but the larger question remains: Why does it need to be a secret?

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17

Did Bush Have the Legal Authority Under FISA to Authorize NSA Surveillance?

whitehouse4.jpgYesterday, I blogged about a startling story in the NY Times about President Bush’s authorizing the NSA to conduct domestic surveillance without a warrant or even a court order. According to the NY Times story, the “legal opinions that support the N.S.A. operation remain classified.”

Today in the NY Times is a follow-up story about the legal basis for the President’s actions. According to the story:

[S]ome legal experts outside the administration, including some who served previously in the intelligence agencies, said the administration had pushed the presidential-powers argument beyond what was legally justified or prudent. They say the N.S.A. domestic eavesdropping illustrates the flaws in Mr. Bush’s assertion of his powers.

“Obviously we have to do things differently because of the terrorist threat,” said Elizabeth Rindskopf Parker, former general counsel of both N.S.A. and the Central Intelligence Agency, who served under both Republican and Democratic administrations. “But to do it without the participation of the Congress and the courts is unwise in the extreme.” . . .

William C. Banks, a widely respected authority on national security law at Syracuse University, said the N.S.A. revelation came as a shock, even given the administration’s past assertions of presidential powers.

“I was frankly astonished by the story,” he said. “My head is spinning.”

Professor Banks said the president’s power as commander in chief “is really limited to situations involving military force – anything needed to repel an attack. I don’t think the commander in chief power allows” the warrantless eavesdropping, he said. . . .

In engaging in the surveillance, the President may have ignored the legal procedures set forth in the Foreign Intelligence Surveillance Act (FISA) of 1978.

The FISA allows the government to engage in electronic surveillance if it obtains a court order from the Foreign Intelligence Surveillance Court (FISC), which meets in secret. The government must demonstrate probable cause that the monitored party is a “foreign power” or an “agent of a foreign power.” 50 U.S.C. § 1801. If the monitored party is a U.S. citizen, however, the goverment must establish probable cause that the party’s activities “may” or “are about to” involve a criminal violation. Id.

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3

President Bush, the National Security Agency, and Surveillance

NSA2a.jpgThe New York Times has an in-depth story about how President Bush authorized the National Security Agency (NSA) to engage in surveillance after 9/11:

Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible “dirty numbers” linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

The previously undisclosed decision to permit some eavesdropping inside the country without court approval represents a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.

“This is really a sea change,” said a former senior official who specializes in national security law. “It’s almost a mainstay of this country that the N.S.A. only does foreign searches.”

Read the article. It is, in my view, quite startling. Here’s another very troubling fact:

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5

Subways, Searches, and Slippery Slopes

police-search.jpgThe gloves are off. Dave Hoffman has lodged another challenge to my position, and I want to take a quick moment to defend myself.

I believe that Dave mischaracterizes my arguments in several places and exaggerates some of my claims. So I’ll attempt to clear up any confusion as to my positions and try to defend my turf.

1. I’m not a privacy absolutist. If I were, I wouldn’t even be speaking about whether the subway searches were effective or not, as it would be irrelevant.

2. I am not arguing that we’re on a slippery slope toward totalitarianism. I am arguing that the “show of force” that Jason extols is something that totalitarian societies do, and it has effects on shaping people’s attitudes and their sense of freedom. It has “expressive” content. My argument is not that we’re going to quickly slide down the slope to Big Brother. Rather, my argument is that the searches and other displays of force Jason speaks about are similar tactics to those used in totalitarian societies. They won’t necessarily make us into such a society, but they do introduce different elements into our own society that will have some effect. Allowing police to search people as they travel about the city, without any suspicion of wrongdoing, is a significant change in the tone and tenor of life in NYC. Although this will not lead to the government’s installing telescreens into people’s homes anytime soon, the subway search policy isn’t a trivial initiative. Nor are the other displays of force Jason speaks about. They affect the very atmosphere in which we live.

3. I did not invoke Korematsu to suggest that we’re on a slippery slope to internment. I invoked it to suggest that it involves the same arguments and logic of deference. The point is that the government officials were wrong with regard to the Japanese Internment, and perhaps this should serve as a lesson to courts that government officials do not always know better. It also demonstrates the lengths to which the government can go when security is threatened. I raise Korematsu not as a slippery slope problem but as a cautionary tale that in the face of security threats, the government (and the population at large) can make rash and unwise decisions. This is a reason why courts shouldn’t defer but should keep a very critical eye on the policies adopted by the government in times of crisis.

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12

Rational Security vs. Symbolic Security

cartoon-security1b.bmpSo much for concurring opinions . . . I’ve been attacked by not only one co-blogger, but two. Earlier on, I posted a critique of the court’s decision upholding the NYC subway searching policy against a Fourth Amendment challenge.

Jason Mazzone argues that I’m ignoring a key benefit of the search policy:

The overriding goal of all of these efforts is prevention. The police are no longer charged simply with responding to crimes that have occurred. To succeed, they must stop terrorist attacks before they occur.

The City has taken the view, reasonable in my opinion, that prevention is aided by demonstrating on a regular basis the power of the City’s security forces. Such a demonstration combines awe with surprise.

First, I question whether such demonstrations of force are likely to deter the terrorists, who continually seek to infiltrate the hardest of targets rather than the unfortified ones. The terrorists focus a lot on airplanes, where the security is rather tight compared to many other tragets. So I wonder whether such demonstrations of force really deter terrorists. Perhaps the show of force gives people a sense of security, which, although illusory, is nevertheless comforting. But if this is the goal, should it be a legitimate government policy to create an illusion?

Jason’s argument reminds me of the armed military personnel patrolling airports after 9/11 with machine guns. The guns were unloaded, and the troops were there primarily as symbols of strength. All this cost money, money that wasn’t spent on addressing the real vulnerabilities of air travel. I guess the question is whether it is better to have rational security or symbolic security. My vote is for rational security.

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15

NYC Subway Searches Upheld: A Critique of the Court’s Decision

nyc-subway-search2.jpgIn a recently issued opinion, Judge Berman of the U.S. District Court for the Southern District of New York upheld New York’s subway searching policy. Back in July, New York began randomly searching people’s bags at NYC subways. I criticized the policy:

It is another big waste of money and time, as well as a needless invasion of civil liberties — all for a cosmetic security benefit. There are 4.5 million passengers each day on the NYC subways. What good could a few random checks do? The odds of the police finding the terrorist with a bomb this way are about as good as the odds of being hit by lightning. I doubt it will have much of a deterrent effect either.

This landed me in a debate with co-blogger Dave Hoffman, with Hoffman’s views here and my reply here.

Now, in response to an ACLU challenge under the Fourth Amendment, District Court Judge Richard Berman concludes that the policy is constitutional. The court analyzes the checkpoints under a “reasonableness” balancing test, in which the governmental interest is weighed against the invasion of privacy. But in doing so, the court begins by already tilting the scale toward the government’s side — even before the balancing has begun:

Because the threat of terrorism is great and the consequence(s) of unpreparedness may be catastrophic, it would seem foolish not to rely upon those qualified persons in the best position to know. (See Pre-Trial Amici Brief, at 14 (“[I]t would be inappropriate for courts to second-guess the judgments of law enforcement and other public officials who are charged with protecting the public and making difficult choices of resource allocation.”).)

I believe that this deference is inexcusable. The courts are charged with determining the constitutionality of the search policy, which depends upon reasonableness. The reasonableness of the policy, of course, depends upon balancing the efficacy of the searches against their intrusiveness, and if the court defers to the government in this regard, it is essentially rubber-stamping the goverment in this determination.

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