Monday, January 09, 2006

Why Should I, a Law-Abiding Citizen, Care Whether the NSA Spies on Terrorists?

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.
The Fourth Amendment holds an uneasy place in the American understanding. It is the Fourth Amendment that gives rise to many of the "technicalities" that free 'undeserving" criminal defendants on occasion. For a law-abiding citizen, the Fourth Amendment serves as a visible irritant and an invisible protector. Unsurprisingly, the visible tends to capture the attention.

One of the most appealing and dangerous arguments surrounding the right to privacy is the thought that good, law-abiding citizens don't need it - if you don't have anything to hide, why should you fear a little snooping?

This argument's appeal is heightened in a climate of fear. It makes sense that if the government spies on everyone, bad guys with secrets to hide will get caught, while the good people won't be harmed. It makes a lot of sense to many people to loosen up the restrictions on the government, whether it be the local police or the NSA, if it can prevent crime.

This "common sense" gives rise to the great false hope of the Republicans in the current furor surrounding the NSA's domestic spying program. They hope that Americans will accept that if the Bush administration feels it must engage in secret, warrantless spying on Americans to keep us safe, then it should do so. Indeed, Joe Klein makes a constitutional and political fool of himself in Time magazine this week, opining that (and I'm not making this quotation up) "until the Democrats make clear that they will err on the side of aggressiveness in the war against al-Qaeda, they will probably not regain the majority in Congress or the country." By this view, unless the Democrats show that they will aggressively violate the Fourth Amendment with the same reckless disregard as the Republicans, Americans will view them as weak in the war on terror.

I have far more faith in my fellow Americans than Joe Klein and the Republicans do.

There are three reasons that Americans ultimately support the Fourth Amendment. First, we know the government will ultimately abuse the power we grant it. Second, the police, FBI, NSA and other security agents are too stupid to get it right. Third, and most important, we don't want anybody messing with us. America has a deep-seated, defiant sense of independence from its government, and will not long suffer being treated like subjects of a superior power.

History shows us that the government will inevitably abuse its power to torment its political and social enemies, and the very secrecy surrounding the NSA provides the perfect environment for corruption to overtake even the best-intentioned plans. Already, speculation has arisen that the plan was used to spy on journalists and political enemies. Even if this specific allegation is not true, anyone with a passing familiarity with Kissinger, or J. Edgar Hoover, or even the allegations against the Clintons should realize that perversion will overcome legitimacy. Even in the wildly improbably case that the Bush Administration really is only using this secret program to spy on people with real terrorist connections, is any among us so trusting as to believe that it will not be turned to gather information on political enemies as the Bush administration seeks to hand its legacy off to another, as yet unnamed Republican administration in 2008? What on earth could justify such naive faith in a power-hungry presidency?

Another reason we cannot consent to government spying so easily is because the government will screw it up. Innocent people with bland names like Ted Kennedy and James Moore are on the no-fly list. Extraordinary rendition has been used to torture innocent people. If secret warrantless spying continues, how long before some uniformed jerk comes knocking on your door because your wife asked you to pick up some coke on the way home? The Bush administration has demonstrated incompetence at every turn, at every important task it has undertaken, and only a complete buffoon would believe that it could undertake a program of this magnitude without screw-ups that would make even Brownie find a sense of shame and blush.

Finally, and most importantly, Americans hold to the Fourth Amendment because we don't like people messing with our business. The same person that says s/he has nothing to hide from the NSA will won't tell his or her own mother how much s/he makes. In October, some miscreant burglarized our house, and we, like every other burglary target, were more angry about the sense of violation than about any item that was taken from us. "Don't tread on me" appeared on the Gadsden Flag in the American Revolution, and that defiant spirit lives on. A typical santimonious, law-abiding Republican might be frightened enough by Islam to say that s/he is willing to surrender privacy, but when s/he finds out that the government is reading their bank statements or tracking their car, you can count on yelps of protest. Even the law-abiding among us (and few of us are truly law-abiding all the time) have secrets that we don't want to share with goverment agents.

The right wing is overestimating the level of fear it has engendered in the American public, or it has underestimated the courage of the American public in holding to its right to privacy. America is not going to accept secret warrantless spying on Americans, and the Fourth Amendment will survive the Bush administration and the climate of fear it has fanned.


Anonymous anonymous me said...

I know you're a lawyer (so am I), but I find it hard to believe it when I read some - some - of what you write.

1) The facts are not in - see this week's Newsweek for an analysis (and easy one - you should be able to handle it) as to why it is not, at this point, a clear-cut case that Bush's activities were either illegal or violative of the 4th amendment. It may well be so- but let's wait for the facts first. There is much we simply don't know at this point.

2) We both know the hallowed 4th amendment may not apply here. The Courts have consistently held the 4th amendment'a probable cause and warrant provisions applies to searching for criminal prosecution purposes, but does not always apply in other circumstances, for example, administrative searches. It is not even clear that the "reasonableness" clause is necessarily linked to the warrant clause, though we tend to treat the two as linked, and in most cases should continue to do so. Many searches, perhaps most, even in the criminal context, occur without warrants every day. Need I explain exigent circumstances to you?

3) The courts have held - even the FISA courts - that the president's national security authority may be exercised without warrants. Remember, the executive is a co-equal branch of government (as is Congress), with independent authority, though the limits of that authority are unclear. That means that evidence obtained in the NSA data-mining operation may well be inadmissible in court, but I doubt very much that the NSA is looking for evidence they can use in prosecution. (It's further far from clear that even in criminal cases, exclusion is mandated constitutionally as a remedy - even the SCOTUS has shrunk from going that last step, calling it instead a "prophelactic measure." But's that's another story, and another subject).

Again - if after all the facts are in, it is clear the president broke clearly established law, I'll be first in line to sign the impeachment papers. But let's get the facts first, huh? And lets get our facts straight, as well.

That said, I agree with your general proposition as to why Americans support the 4th amendment (at least in principle, until it lets the rapist next door off). Governments will abuse their authority, given the oportunity, though it's not yet clear that has happened here. Thomas Paine was right - "government is at best a necessary evil, and at worst an intolerable one."

And government agencies will make mistakes (as do all of us - I don't know that government agencies are more prone to mistakes than any other organization. I worry as much about the overly-cautious bureaucratic nature of the organizations). But the 4th amendment does not protect us from mistakes - nothing can. It is simply human limitation. As to this administration's incompetence, the federal bureaucracy's nature in general is incompetence (remember the three greatest lies?), no matter which party is in control of the political apparatus. This administration has for the most part been no more or less incompetent than the one before it, and the one which follows will have similar bouts of idiocy. It's the nature of the bureaucratic beast.

And it is America's strong "leave me the hell alone" streak - which I strongly agree exists and heartily endorse - which is perhaps the strongest source of 4th amendment sympathies (once again - wish to rethink your 2nd amendment position?) We will survive this crisis, if indeed it is that. You've at least moved from mourning the death of western civilization to realizing that the sky is not falling.

You may even find that you are a conservative in your heart of hearts, though you'd be loath to admit it!

1/10/2006 12:11 PM  
Blogger Dan said...

AM - Where did I say the facts are in? Did I not hypothesize the wildly improbably thought that the Bush administration is using the NSA only against terrorists?

I agree that Bush is hiding the truth from us, so we don't know enough to fully analyze whether or how badly he has violated the Constitution or the laws of the US.

But, no, I am most definitely not going to wait until the Bush administration's cover-up is completely undone before writing about why this government spying has repercussions that go beyond the civil rights of terrorists. As long as pinheads like Klein are publishing utter idiocy, I'm going to respond.

1/10/2006 12:25 PM  
Anonymous Anonymous said...

Dan, havne't there been some court decisions fairly recently concerning vehicle searces during traffic stops? It may have even been from SCOTUS.

Basically it allows cops to search your car if they pull you over for speeding or whatever. I've always thought this was a bit of a stretch of Fourth Amendment allowances.

I guess the operative word is "unreasonable."

1/10/2006 7:36 PM  
Anonymous Anonymous said...

Er, searces = searches.

1/10/2006 7:44 PM  
Blogger Dan said...

Whole Wheat - You are correct that the Fourth Amendment has been stretched far beyond what it should allow. For example, I think DUI checkpoints are unconstitutional, though the courst have somehow failed to see it that way.

1/10/2006 8:13 PM  
Anonymous Anonymous me said...


Dan is wrong on that point, as well. A routine traffic stop is NEVER grounds, by itself, to search your vehicle. If, during the course of that stop, an officer senses something that gives him PC (i.e., sees the dead body in the back seat, or - more likely - smells pot) then he may search. He may even do so (gasp) without a warrant (Carroll doctrine, based on the mobility of the scene). But without that, no, he may not search.

He can request to do so, of course, and the correct answer is always, politely, "No officer, I will not consent to a search of my vehicle." Your denial of consent absolutely does not give an officer any cause to search.

Despite Dan's raving paranoia, though we may disagree from time to time about its aplication in particular situations, the 4th amendment is alive and well . Those of us who work within its limits every day understand that.

1/12/2006 8:36 AM  
Blogger Dan said...

Thanks (sincerely!) for clarifying, Anonymous Me, though, once again, you read something that was not there. I did not say a routine traffic stop gives grounds to search, did I?

To clarify your point in turn, though, the real test is whether a police officer is willing to testify that you agreed to a search. If you're the wrong kind of person in the wrong place, you may find out the officer heard you consent when you didn't really think you had. It's amazing how many people on I-44 in southern Missouri consent to searches when they have pounds of contraband in the trunk.

1/12/2006 9:13 AM  
Anonymous Anonymous me said...

You're right - it is amazing. What it mostly shows is that criminals are stupid; a failure police should take advantage of at every opportunity.

I have a defendant who - honest to God - flagged down an officer who was following him. In a marked car. He then asked the officer why he was following him (the officer was hoping for a traffic offense - that never came - so he could pull him over and maybe see or smell something). The officer told him: because three separate tips told police that this genius was dealing pot. The defendant denied consent, as was his right, and then proceeded to tell the officer that all he had was a "bunch of roaches in the ashtray." Thanks: PC granted out of the mouths of idiots. He had 2+ pounds of bricked pot.

I could tell you more. It is often amazing to me that people routinely consent to searches. but they do. On videotape.

Your post implies that officers routinely lie when they testify they obtained consent. On what basis do you make that implication (you don't practice criminal law, do you)? The officer's testimony is sworn, just as the defendant's is. Why is the defendant's testimony inherently more believable?

Now, I know that law school profs consider cops to be "jack-booted thugs" and consider criminal law to be beneath their dignity and prosecutors as contemptable. That speaks more to the ivory tower mentality of law schools than anything else. The truth, of course, is rarely like that at all. My experience is that officers are overly cautious when operating in the 4th/5th amendment area, probably a good thing, on balance. It's annoying to me, however, to see an officer interrupt a perfectly good impromptu confession with Miranda warnings. I've seen it happen.

As to DUI checkpoints, they are very circumscribed as to when and under what circumstances they may be used, mostly limitations put in place to be sure that officers are not acting arbitrarily in operating them. It's frankly a close call as to whether they should be allowed at all; I'm not personally convinced they should be. But the Courts have been fairly consistent in permitting them, with carefully limitations in place, balancing the clear risk to public safety of drunk drivers against the very limited intrusion of a checkpoint. That disagreement around the edges of the law hardly puts the 4th amendment at risk, of course.

BTW - why is the idea that the administration is using the NSA data-mining operation only to seek out terrorists "wildly improbable?" And let's not pretend at this point that you care whether the facts are in; you've already made up your mind. To claim otherwise, after reading your posts, is utterly disingenuous.

1/12/2006 11:40 AM  
Blogger Anne said...

Without all the details, we can't know how many people are being monitored or have been caught-up in the net of data mining.

Having said that, based on how the story's been reported by several sources thus far, it would appear to cast a very wide net relying on certain words or phrases being intercepted. How reasonable a conclusion is it that these words have varied usages and could easily create 'false positive' situations and/or be wide enough to catch people outside the scope and label of 'terrorist?'

I agree with waiting until the facts are in, but can't really be sure how you can argue against Dan's suppositions with such certainty in the absence of your having facts.

Then again, I'm not a lawyer.

What I've yet to see put forth by anyone is a clear explanation as to why the Bush administration didn't, or couldn't, or wouldn't, simply return to FISA after the interceptions and get retroactive warrants. Seems a pretty straightforward procedure, and their failure to do it is concerning. It gives the appearance of them having something to hide, right or wrong, and needs to be cleared-up.

1/13/2006 5:55 AM  

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