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by Ralph Burr, instructor, political science/constitutional law

 

Last issue we examined the USAPATRIOT Act and its implicit attack on our civil liberties. Now let’s look at the judicial branch of the government and see what protection against potential PATRIOT Act abuse we can expect to find there.

Unfortunately, the U.S. Supreme Court has minimized the role of the judiciary in this regard by the way it has construed the Constitution’s Fourth Amendment, which is the part of the Bill of Rights that deals with search and seizure. The Court’s Fourth Amendment jurisprudence in recent years has allowed so many deviations from principles of antecedent judicial review, individualized suspicion, and notice, as to render the Amendment a nearly hollow shell.

The Fourth Amendment reads as follows: “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 great difficulty in applying the Fourth Amendment is in construing the word “unreasonable” (or its opposite, “reasonable”), or even defining exactly what constitutes a “search” or a “seizure.” The trend over recent years has been toward granting the police greater leeway in criminal investigations and law enforcement, and affording less protection to citizens and their private rights–all in the name of “law and order” in the domestic context, and “national security” in the international context.

The Court’s approach to the Fourth Amendment has generally been to ask: What expectations of privacy are embraced by American society as a whole? What standards of police behavior do the majority of Americans think is right, fair, just? In this sense, the Court has subtly acted in a “political” manner, though it is generally thought of as being above politics–that is, above “partisan politics.”

During a period of “liberalism” (or “progressivism,” as I prefer to call it), in the 1950s and ‘60s, we saw the Court turn toward greater concern for civil liberties generally, and for notions of privacy in particular. The high watermark of privacy protection was reached when Chief Justice Earl Warren led the Court toward greater protection of citizens’ rights and more constraint on abusive police powers, in cases such as the 1966 Miranda v. Arizona, which established the police obligation to “Mirandize” suspects by informing them of their rights.

Since then, however, the Court’s inclination has been to follow what has undeniably been a conservative trend in American society and politics, a trend that first expressed itself in a call for stronger anti-crime measures and a demand to stop “coddling criminals.” In this regard, the Court has generally followed the sense of Congress and the president–the elected branches of the government–which perforce make public opinion political.

This trend was exacerbated by the fear-inducing events of 9/11, which created in many Americans a willingness to surrender a degree of liberty for a greater sense of security. The Bush administration seized on this pervasive fear to forward a broad agenda of intrusive government–so-called “conservative” government, but nonetheless intrusive.

As a result, government interests now outweigh private interests, and the Court uses a government-friendly balancing test in Fourth Amendment cases in order, it claims, to protect society from domestic criminals and international terrorists.

This may not be altogether surprising, since the Court has never been as solicitous of our Fourth Amendment protection against “unreasonable” search and seizure, as it has of our First Amendment freedoms of religion, speech, and the press. In the latter cases, the government must show a “compelling” public interest in order to override a private right. A lower standard of governmental interest usually suffices with respect to search and seizure cases. We cherish all the liberties guaranteed by the Bill of Rights, of course, and regard them as of equal importance; but the fact is that the Court has long recognized a hierarchy among them, so that some are more “equal” than others.

To illustrate this point, let’s take a brief look at a few Fourth Amendment cases that are relevant to the PATRIOT Act.

Olmstead v. United States (1928) is an early case dealing with wiretapping in which the Supreme Court ruled that eavesdropping by Federal agents on a private phone conversation is neither a “search” nor a “seizure,” as those terms are used in the Fourth Amendment. Only tangible things and places are protected, the majority opinion held, so Olmstead’s phone conversation could, indeed, be intercepted and used against him at his trial.

This narrow, formalistic opinion did not go unchallenged; in fact, the dissent by Justices Holmes and Brandeis included this famous and now universally cherished acclamation of: “The right to be let alone—the most comprehensive of rights and the right most valued by civilized man.” This statement is the first clear judicial hint of a constitutional right to privacy, a hint that has been more broadly articulated and firmly established over time in a series of cases, such as Griswold v. Connecticut (1965) dealing with the right to use birth control, and Roe v. Wade (1973), which established the right of a woman to choose to terminate a pregnancy.

Olmstead was overruled in the 1967 case of Katz v. United States, in which the Court wisely decided that the Fourth Amendment protects people, not places or things. The Court looked for “reasonable expectations of privacy” and thus found that phone conversations were, after all, a “search” within the meaning of the Amendment.

Unfortunately, the Court retreated somewhat from Katz a few years later in United States v. Miller (1976) when it redefined “search” narrowly and said that if information is obtained from a third party, no search or seizure has been conducted. Thus, the Court abandoned the normative constitutional requirement of antecedent judicial review, which is intended to prevent “fishing expeditions” and arbitrary or discriminatory surveillance.

A high point in Fourth Amendment jurisprudence came with Mapp v. Ohio (1961), in which the Court went so far as to disallow the use of evidence in a trial if that evidence was not obtained in strict accordance with Fourth Amendment requirements. Dolly Mapp was “a Cleveland woman of questionable reputation.” Police, without a search or arrest warrant, broke into her apartment on a tip and found gambling materials and other contraband, on the basis of which she was convicted. On appeal to the Supreme Court, the conviction was thrown out, and the Court articulated what has come to be known as “the exclusionary rule,” which states that “all evidence obtained by searches and seizures in violation of the Constitution…is inadmissible.”

This rule admittedly produces a harsh result when clear evidence of guilt has been discovered, and it was roundly denounced as “coddling criminals.” It was, however, a stern warning to police everywhere that constitutional rights must be observed in all cases.

In recent years, the strictness of the rule has been greatly relaxed by the Court, which is now willing to look at all circumstances surrounding an intrusion and to grant leeway to the police where the Court feels it is warranted. In fact, from this through several evolutionary cases decided in recent years, we can now see that the Court’s decision in Hudson v. Michigan, handed down in June of this year, effectively neutralizes the Fourth Amendment by waiving the “knock and announce” rule altogether!

The Miller case, mentioned above, raises another interesting question of Fourth Amendment jurisprudence: Are there any constitutional restraints on getting information from a third-party custodian? May the FBI, for example, obtain information about your financial affairs, not from you but from your bank (the so-called “third party”)? Or from your phone company? Or your library? Or your doctor? And may they do so without you even knowing they’ve obtained it?

Miller is particularly interesting in view of the Bush administration’s contention that a person has abandoned any claim to secrecy or privacy if he allows someone else to keep his records. Some conservative commentators have even argued that if you don’t know your home has been searched, your privacy has not been invaded!

Issues regarding third-party record keepers have become more acute as information-gathering technology has developed. “Pen registers” can record phone numbers you have called (i.e., your outgoing calls), while “trap and trace devices” record the phone numbers calling you (i.e., your incoming calls). As is the case with National Security Letters described in Part 1, these technologies do not record the substance of phone conversations, but instead provide a record with which patterns of communication can be detected.

My great fear, the great fear of many Americans, is not that the act will be used too aggressively against “terrorists,” but that it can too easily be turned against domestic “enemies” or unpopular minorities or to vocal dissenters. It can be abused, subjected to biased enforcement, applied in a discriminatory or selective manner–all in the name of “national security” and “anti-terrorism.”

These words of James Madison were prescient: “If tyranny and oppression come to this land, it will be in the guise of fighting a foreign enemy.”

 
 

 

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