Taking Liberties: The War on Terror and the Erosion of American Democracy (20 page)

The Fourth Amendment and Terrorism

The authors of the Fourth Amendment understood deeply why unlimited government power to spy on people is intolerable. Excessive governmental power to search or to seize “persons, houses, papers, and effects” (in the words of the Fourth Amendment) was a primary cause of the American Revolution.
¹⁰
The framers took search and seizure authority very personally, perhaps because many of them had seditious literature in their basements and tea or rum on which they had not paid detested duties in their pantries, but also because they recognized the inherent connection between privacy and democracy. Like the Fifth Amendment
privilege against self-incrimination, the Fourth Amendment guarantees people space to form their thoughts and live their lives without government intrusion. Within private enclaves, especially in our homes, there is a wealth of information about us that the government cannot either buy or google—evidence of our habits and opinions, what we read and write, and what we say to our family and friends when we think no one is listening.

The framers were especially outraged by the general warrants the King’s agents employed to search at will,
¹¹
recognizing that unlimited power to search invites arbitrary or discriminatory use—to discomfit political rivals, for example, or to trawl for potential critics or revolutionaries. So in the Fourth Amendment, they provided a constitutional guarantee of the “right of the people to be secure against unreasonable searches and seizures.” This right has been interpreted as having two components: first, government officials are not to search or seize anyone or anything unless they have good reason to believe that the target is involved with a crime. The default standard for defining what counts as a good enough reason to search or arrest is probable cause. This requirement of individualized suspicion prevents general searches or fishing expeditions just to see if someone has done something wrong—a power associated with totalitarian states. Second, before searching, government officials prototypically have to convince an objective magistrate that they indeed have probable cause and are not being overzealous, engaging in wishful thinking, or acting in an arbitrary or discriminatory manner. This is nothing more than the classic detached second opinion we all want before we do something important, like agree to let a doctor operate on us.
¹²
By requiring agents who want to search or seize someone to explain their reasons to someone detached from the investigation, the judicial check limits the government’s ability to trample on our privacy, target political opponents, or focus on people of a particular race or religion. The Supreme Court has created countless exceptions to this basic protocol, but both elements remain essential to our idea of who we are as a nation: we have a right to be let alone if we have not done anything to justify suspicion, and we have the right to have a neutral court act as a check on possible executive branch overreaching. As Supreme Court Justice and Nuremberg war crimes prosecutor Robert Jackson warned, “Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.”
¹³

In creating the new post-9/11 search and seizure authority, Congress exploited and stretched preexisting Fourth Amendment exceptions and
loopholes to allow the government to conduct more searches with less individualized suspicion and less judicial review. Some of those exceptions the Supreme Court had already endorsed; others had been created by statutes that everyone assumed the Court would approve if the occasion arose. One of the preexisting statutory modifications of the Fourth Amendment prototype was the Foreign Intelligence Surveillance Act of 1978. That statute, with its subsequent amendments both before and after 9/11, progressively lowered the baseline for eavesdropping and searching, even for an American citizen in Oregon. This chapter and the next four chapters in this section will explore the consequences of lowering the Fourth Amendment baseline of probable cause and independent court review, showing how the Patriot Act–enhanced powers in each chapter veer further and further away from the Fourth Amendment paradigm. Would the framers have agreed to set aside the Fourth Amendment to allow an all-out search for possible terrorists? In answering that question, we need to bear in mind that our founding fathers were themselves regarded by the British as dangerous revolutionaries and that they lived in a world where British sleeper cells posed a very real threat to the young American republic.

“Foreign” Intelligence Surveillance, Americans, and the Patriot Act

Ironically, the Foreign Intelligence Surveillance Act of 1978 (FISA)
¹⁴
began as part of a design to protect Americans against unwarranted government eavesdropping. In 1975–1976, the bipartisan Church Committee, headed by Senator Frank Church of Idaho, held hearings in response to widespread concern that warrantless surveillance was out of control—spurred in part by revelations that President Richard Nixon had been using what he claimed were inherent presidential powers to spy on Americans he or FBI Director J. Edgar Hoover believed to pose a threat to national security. The Church Committee conducted the first extensive congressional review of American intelligence activities and discovered much to be concerned about, including, in one notorious example, the FBI’s aggressive surveillance of Dr. Martin Luther King.
¹⁵
One result of these hearings was the enactment of FISA. This compromise Cold Warera statute preserved Fourth Amendment protections for “United States persons” but lowered the barriers to investigating foreign powers, prototypically the Soviet Union. Investigators who wanted to search or eavesdrop on foreign powers and their agents—by placing a bug in the Soviet
Embassy, for example—still needed to go to a court: the newly created Foreign Intelligence Surveillance Court. But they were not required to show that they had probable cause to believe that the “foreign power” in question was involved in a crime. Instead, they only had to show that they had probable cause to believe that their target was a foreign power or agent, and that their purpose was to obtain foreign intelligence information rather than evidence of a crime. In addition to changing the standards required to obtain a search warrant, FISA also designed a special court to conduct judicial review of the government’s applications. Both the nature of the FISA court and the method of selecting the judges to serve on it represent a substantial departure from the federal court norm. The members of the FISA court are handpicked by the Chief Justice of the Supreme Court without any second opinion or review of whether the appointments are balanced.
¹⁶
All other courts presumptively operate in public, publishing opinions explaining their decisions and inviting the public to attend proceedings, except to the extent that the government can meet a heavy burden of showing that secrecy is necessary for some particular part of an occasional opinion or proceeding. The FISA court rarely publishes opinions
¹⁷
and always meets in secret. Thus the power to select the judges who will serve on this court is enormously consequential, as current Chief Justice John G. Roberts, Jr., acknowledged at his confirmation hearing.
¹⁸

Since 1978, the year in which FISA became law, the Chief Justices have been Warren E. Burger, William H. Rehnquist, and Roberts, all Republican appointees tending to favor government positions. University of Pennsylvania law professor Theodore Ruger conducted an empirical study of William Rehnquist’s twenty-five FISA court designations and concluded that the profile of the judges Rehnquist selected was not remarkably different from the profile of a randomly selected group of federal judges. Rehnquist tended to select conservative Republican appointees, but also included some Democratic appointees. Nevertheless, Ruger concluded, “[T]he actual FISA judges’ Fourth Amendment behavior was more consistently pro-government than the individual random judges.”
¹⁹
Reports to Congress show that between 1979 and 2009, the FISA court has approved 28,807 out of approximately 28,816 applications.
²⁰
Around the time of the Mayfield searches, the FISA court had granted 16,970 out of 16,974 applications.

If Brandon Mayfield had actually been involved with the Madrid train bombing, he would fit the statute’s definition of “agent of a foreign power” even though he is an American citizen. The definition includes anyone who
“knowingly engages in sabotage or international terrorism”—terrorists as well as spies, Americans as well as foreigners.
²¹
What is different about being treated as the agent of a foreign power instead of an ordinary American? The FISA probable cause requirement is different, because there is no need to establish probable cause to believe that the target has committed a crime. The agents were divided on the issue of whether or not this difference would have mattered in Brandon’s case. Some believed that a regular court would have found probable cause to issue the requested warrants in light of the FBI’s assertion that the fingerprint match was 100 percent certain—even though the agents turned out to be wrong. But another difference is that operating under FISA means that the judicial second opinion in Brandon Mayfield’s case was that of the highly predictable FISA court instead of a randomly selected judge.

An additional difference between operating under FISA as opposed to the usual rules covering investigations of Americans concerns whether and when the government has to give notice of the searches or wiretaps. Notice is regarded as essential under the Fourth Amendment. Officials executing a search warrant are supposed to knock and announce their arrival, except under extraordinary circumstances.
²²
Due process requires agents who seize someone’s property to provide notice that the property has been taken so the owner can pursue available remedies for its return.
²³
The statute authorizing wiretaps to investigate crimes requires that notice be given to the person wiretapped within ninety days of the end of the surveillance.
²⁴
Under the usual rules covering Americans, Brandon Mayfield would have had a right to be notified that he had been searched—after the fact, if not at the time of the search itself.

The specter of secret searches of Americans had led to considerable outrage over another Patriot Act loophole-expansion: the so-called sneak and peek provision,
²⁵
which allows the government to execute a search warrant covertly and to delay telling the target about the search—although only with the court’s permission and presumptively for not longer than thirty to ninety days.
²⁶
(In a telling example of mission creep, the sneak and peek provision, touted as an antiterrorism measure, has been used overwhelmingly in drug cases rather than terrorism investigations.
²⁷
) Had a non-FISA search warrant been issued, a regular court would have considered when the Mayfields should have been given notice that they were being searched, but FISA strips an American who is deemed to be a “foreign agent”—that is, a terrorist—of this right. And so the targets of a FISA search will never have an opportunity to question the constitutionality of
the search—unless they are criminally prosecuted or find themselves in the highly unusual position of the Mayfields.

This complete lack of notice made sense when the target was the Soviet Embassy. But because the FISA statute is so dense and mind-bogglingly intricate, many critics of the sneak and peek provision did not notice that FISA subjected some selected Americans to an even greater unfairness: covert searches with notice denied instead of just deferred, with no court approval required for concealment. Some commentators had assumed that the controversial “sneak and peek” provision was used in the Mayfield case, but the Inspector General reassuringly noted that it was not—but that was only because FISA allowed the agents to dispense with notice without even asking a court’s permission and so there was no need for the agents to invoke the “sneak and peek” authority. And of course the fact that the FISA court operates in secret, not even publishing redacted opinions, means that the public generally has no idea what the court is doing and so cannot provide any check on this world of secret spying.

Pre–Patriot Act, the chief legal limitation on use of the relaxed standards of FISA instead of a search warrant or regular court order was that obtaining foreign intelligence had to be “the” purpose of the investigation. This seemingly technical limitation is important because it is the reason courts could regard FISA as constitutional even though it bends Fourth Amendment standards. The Supreme Court had developed an exception to usual Fourth Amendment rules if the government can show a “special need” for information other than criminal investigation, and that serving this special need is “the primary purpose” of the investigation.
²⁸
The original FISA statute compliantly declared that its alternate surveillance procedure was available only if “the” purpose of the surveillance was to obtain foreign intelligence information—for example, to find out what the Soviet Union was up to. But the Patriot Act defied the Supreme Court’s “primary purpose” precondition by allowing the use of FISA’s diluted form of judicial review any time gathering foreign intelligence is “a significant” purpose of an investigation—obviously covering many more instances than bugging the Russian Embassy. Judge Aiken, in the
Mayfield
case, aptly described this expansion as allowing the executive branch “to bypass the Fourth Amendment in gathering evidence for a criminal prosecution.”
²⁹
Although the FISA court is allowed to review whether or not a target is an “agent of a foreign power,” the statute requires the court to defer to the government’s assertion that finding foreign intelligence and not evidence of a crime is their purpose, and that they have reason to believe they will
find foreign intelligence by eavesdropping or searching in the place they select.
³⁰
And so the second opinion requirement is doubly diluted. These departures from the Fourth Amendment norm explain why Judge Aiken believed the Patriot Act “the/a significant” amendment was unconstitutional. Eliminating the primary purpose requirement potentially subjects many more Americans to the FISA court and to Brandon Mayfield’s disturbing surveillance experience.