Memo to Ashcroft

by Evan P. Schultz Legal Times

Long before John Ashcroft became attorney general, John Marshall was chief justice of the United States. His most famous opinion was Marbury v. Madison. And in that 1803 opinion, Marshall wrote something that goes to the core of American law: “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Marshall continued, “The government of the United States has been emphatically termed a government of laws, and not of men.”

Maybe Ashcroft will keep a copy of Marbury v. Madison as a quaint memento of the time before Oct. 11. On that day — exactly one month after the World Trade Center and Pentagon attacks — Ashcroft announced that sometimes constitutional rights no longer have remedies and that he is the law.

His declaration, which Ashcroft made not in those precise words on ABC’s “Nightline,” has apparently been lost in the onslaught of terrible news since then. But his remarks deserve close scrutiny.

The thrust of his comments is that the Justice Department and the Federal Bureau of Investigation are assuming a new posture when it comes to dealing with terrorism, one emphasizing prevention over prosecution.

“So much of our efforts in the past have … been devoted to prosecution,” said Ashcroft. “We haven’t forsaken that as an objective, but our priority has to be to prevent, to curtail, to disrupt, to interrupt, to keep from happening again the kind of event that could take another 5,000 lives.”

Insofar as that goes, it’s hard to see a problem. After all, what’s the use of trying to prosecute people hell-bent on suicide? Even the death penalty won’t make them pause.

But what makes for good anti-terrorism strategy might not sit so well with the Constitution. After all, as Ted Koppel pointed out, more than 600 people swept up by law enforcement after Sept. 11 have hardly been heard about since.

Ashcroft had reassuring words about the role of the Constitution in his efforts. “[W]e’re going to protect and honor the Constitution, and I don’t have the authority to set it aside. If I had the authority to set it aside, this would be a dangerous government, and I wouldn’t respect it,” he said. “We’re not going to infringe the Constitution of the United States of America. We’ll not be driven to abandon our freedoms by those who would seek to destroy them.”

So what’s the problem then if Ashcroft turns the FBI into an organization that fights terrorism rigorously, but legally?

Searching the Issue

It’s what Ashcroft says here: “I’m not really going to say that we’ll put any constitutional protections aside, but we will exercise our full authority under the Constitution. And if we end up ruining a criminal case because, instead of waiting to see the crime committed or withdrawing and waiting for further evidence to develop, we warn and we interrupt, we may not be able to make a prosecution.”

How is it that the Justice Department can end up ruining trials when it abides by the Constitution? The simple answer is, it can’t. Which very much calls into question Ashcroft’s claim that he plans to respect the Constitution.

The main battleground here is the Fourth Amendment. The text guarantees that “[t]he 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.”

To be sure, the Fourth Amendment has plenty of flexibility (more on that soon). But when government officials do violate the bounds of the amendment, there are usually two possible sanctions.

One, which applies only to people on criminal trial, is the exclusion of the improperly obtained evidence from court. While controversial — why should a criminal go free just because the government messed up? — it also effectively protects Fourth Amendment rights. Assuming that the government wants to put bad guys in jail, it will try to make sure that its investigations pass constitutional muster.

The second is a civil action for monetary damages against the officials who allegedly violated the Constitution. Such suits, which are based on the U.S. Supreme Court’s 1971 decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, offer a remedy to people suffering constitutional wrongs who are not charged with crimes.

The Remedy That Wasn’t

Now look back to Ashcroft’s new vision. The Justice Department will focus not on prosecuting terrorists, but on disrupting their activities. This means that the government does not necessarily care about putting these people on trial or in prison. So much for the exclusionary rule.

Then what about Bivens cases? Even outside the realm of terrorism, there’s a debate amongst academics about whether such suits really deter officials from improper behavior. This is partially because officials bear little individual risk — the government virtually always provides lawyers to those being sued and reimburses those held liable.

It’s also because so few defendants are ever held liable. One study shows that, of some 12,000 Bivens suits filed between 1971 and 1985, only four led to awards not overturned on appeal. And a 1999 law review article indicates that, generally speaking, less than 1 percent of such suits lead to settlements. Plaintiffs flat-out lose the vast majority of these cases.

This is true even when egregious conduct takes place, thanks to the qualified immunity that most officials receive under Bivens. In theory, as the Supreme Court stated in Saucier v. Katz this year, the relevant question is not whether the official’s action was unconstitutional, but whether the right was “clearly established” in light of the “specific context of the case.” In practice, judges have let grade-school girls accused of stealing a few dollars be strip-searched, and a prisoner be handcuffed to a hitching post for seven hours in the sun without regular water or bathroom breaks.

And that’s before we enter the realm of terrorism and national security. Once we do, plaintiffs face an even harder road.

Bivens itself states that “special factors counselling hesitation” should lead courts to keep certain suits from proceeding. Significantly, this has been applied to military matters. So when a soldier sued the Army for secretly giving him LSD, the Supreme Court ruled against the man on that “special factors” basis. Won’t the courts look at officials investigating terrorism just as sympathetically?

All of which is to say, as former Acting Solicitor General Walter Dellinger told me, that “the possibility of damage actions based upon Bivens in this circumstance would be wholly unrealistic.”

Presently Powerful

Meaning that, under the rubric of fighting terrorists, the Justice Department can do essentially whatever it wants. This is truly extraordinary given the wide latitude that law enforcement already has.

Under the Fourth Amendment, police can conduct warrantless searches so long as they have “reasonable suspicion,” a standard less stringent than the “probable cause” needed to obtain a warrant. They can conduct patdowns ostensibly to ensure their own safety and inventory searches once the suspect is in jail. If there’s an exigent circumstance, they can rush into action with full constitutional authority. And given the terrorist threat, what constitutes “unreasonable” searches and seizures surely has some built-in flexibility. (Furthermore, for foreign nationals, evidence obtained any way whatsoever can be used against them in deportation proceedings.)

Then there’s the wholly independent power that the government has pursuant to the Foreign Intelligence Surveillance Act. That statute is not based on any specific constitutional provision, but rather on the president’s inherent power to protect national security. Under FISA, government officials, so long as their primary purpose is intelligence gathering, can obtain warrants from a special court without any adversarial arguments or briefs, in secret hearings, for broad searches and seizures of communications and objects.

According to at least two federal appellate courts, once that evidence is in hand, it can be used for criminal prosecutions.

Given all this power to search and seize without ruining any future criminal trial, Ashcroft already could turn the FBI into something approaching a domestic Central Intelligence Agency. In doing so, in the words of Marbury, he would be “accountable only to his country in his political character, and to his own conscience.” But the attorney general has suggested that he’s going further. And there’s no way to know exactly how far.

Dellinger, for one, cautions against rushing to criticize Ashcroft. “I think all of us have to recognize that we don’t sit where the attorney general sits or know what he knows. There is a real possibility that they know many more unsettling things than we can be aware of.” Yet Dellinger also suggests that, for future scholars to study, the Justice Department keep a log of its activities, so that it can “submit to the judgment of history.”

That same judgment of history has treated John Marshall pretty well. Ashcroft might want to think about why.

Evan P. Schultz is associate opinion editor at Legal Times, where this column originally appeared.

November 26, 2015
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