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NSA Spying and the Fourth Amendment

Snowden’s Constitution, Obama’s Constitution, and Criminal Law

by ROB HAGER

Edward Snowden is not a constitutional lawyer.  But his public statement explaining his decision to blow the whistle on what he and Congress both know to be only the “tip of the iceberg” of state snooping secrets expresses his belief that, in a democracy, the people – not his defense contractor employers or the government that hires them – should ultimately determine whether mass surveillance interfering with everyone’s privacy is reasonable.

Some have tried to minimize the snooping exposed by Snowden on the grounds that the government is just storing the information, and has not yet searched it.  The Fourth Amendment of the Constitution prohibits “unreasonable searches and seizures.”  Seizure – the taking of private information – is what the government has now been forced to admit.  Whether or not the state ever chooses to “search” the seized information, the universal, non-consensual seizure itself of what used to be called “pen register” data grossly invades individual privacy and vastly empowers government, all in violation of the Constitution if “unreasonable.”

The Supreme Court reads the Fourth Amendment’s “unreasonable” test to mean not ”objectively reasonable,”  United States v. Leon, 468 U.S. 897, 922 (1984).  This would mean “reasonable” as viewed by ordinary citizens – like Snowden.  By definition, the people cannot deem reasonable what they do not know about.  Snowden uniquely did know.  So like a digital era Paul Revere he decided to share his knowledge with his fellow citizens to test his hypothesis that they would not consider dragnet surveillance of their private electronic communications any more reasonable than he did, and like him, as citizens, they might choose to act upon that knowledge.

A strong case can be made that Snowden is right.  According to the Supreme Court, “[i]t remains a cardinal principle that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” California v. Acevedo, 500 U.S. 565 (1991) (quoting Katz v. US,).  The scope and duration of the seizures  make them inherently non-judicial, as discussed below.  Any exception to the Fourth Amendment “right of the people to be secure in their persons, houses. papers, and effects”  in the absence of showing individualized probable cause – or even reasonable suspicion – that a crime is being committed places it outside the judicial process and imposes a heavy burden on the state to prove that its search was otherwise “reasonable.”

This burden is more difficult to carry in that the Constitution was designed to prohibit in every conceivable way known to its framers just the kind of authoritarian intrusion represented by the Obama administration’s power-grabbing, privacy-invading snooping on innocent citizens.  Constitutional provisions in addition to the Fourth Amendment should also restrain such encroachments.

Since the “war” against terrorism is not a war in any traditional meaning of the term, but rather law enforcement by military means, and the NSA is a military spy agency, the Third Amendment command that “No solider shall, in time of peace be quartered in any house” may be dusted off for modern application to this extreme case of state intrusion.  This is a time of peace because Congress has not declared war in any traditional notion of the term.  Electronic communications capacity is an inherent feature of any modern dwelling house. Yet every electronic communication originated and sent from private houses is being seized by the military.  Such permanent residence by Big Brother military spies within one’s private stream of communications could be seen as an updated form of  unconstitutional “quartering,” the same kind of abuse of power by the state that the founders detested.

In Federalist #47, Madison explained the separation of powers principle: “The accumulation of all powers legislative, executive and judiciary, in the same hands … may justly be pronounced the very definition of tyranny.” The dual sovereignty of the federal system was intended to further divide those separated powers between what is truly of national concern and what is of local concern.

With respect to federalism, the general police power to enforce criminal law resides in the states, not in the federal government.  Most of what the federal government targets as part of its domestic “war on terrorism” in fact constitutes the local common law crimes traditionally described as “riot” or “mayhem.”  The federal government has no generalized power to  enforce state criminal law.  It therefore has an initial burden to prove that its invasion of the privacy of every target of its dragnet surveillance program was “necessary and proper” to carry out some specific federal power enumerated in the Constitution.   This proof has been alleged but, if it exists at all, it remains hidden under a blanket assertion of state secrecy.  What the people can see before their eyes is the most expensive security state in the history of the world incompetent to prevent several atrocious crimes having varying degrees of international provenance, other than those attempts resulting primarily from its own entrapments.

The question as to separation of powers is: which branch of the state, if any, can be trusted to make the judgment as to the reasonableness of a permanent and universal regime of search and seizure of private communications?  Since the subject restrained by the Fourth Amendment is the state acting in its executive capacity, the contours of the restraint on its powers cannot be left to the state itself to determine subjectively.  Allowing the executive branch to decide the issue of “reasonableness” of its own actions would defeat the clear purpose of the Fourth Amendment to restrain state power.

The judicial power under Article III of the Constitution extends only to the application of law in individual cases.  Like stories, cases have a beginning, a middle and an end; they are not permanent.  The state does not have the power to initiate and courts do not have the power to hear an ongoing case without end against the whole population of the United States, or even against the subset of all the customers of Verizon.  Only a police state takes such an adversarial posture against its own people.  Where the government diffusely suspects and secretly snoops on the whole people, in a democracy, it is the government itself that proves itself illegitimately unrepresentative and in violation of its oath to support the Constitution.

The power to make rules that affect everyone into the indefinite future is a legislative power.  A court that violates the separation of powers by exercising legislative powers in order to make rules empowering the executive defines tyranny, in Madison’s terms.  No judge or magistrate or secret FISA court exercising judicial power has authority to authorize such a universal and unending search or seizure of private communications.  Any such “search and seizure” takes place inherently “outside the judicial process,” as stated in Acevedo and Katz quoted above.  It is therefore presumed “per se unreasonable under the Fourth Amendment.”

A legislature authentically representative of the people might determine that such a generalized search is a reasonable and necessary exception to this per se rule under some “specifically established and well-delineated” circumstance “that society is prepared to recognize as `reasonable,’”  Katz at 361.  That has obviously not been done when few in Congress were even aware of the scope of the snooping being conducted by the Obama administration under the authority of advisory opinions from a nominal court in fact acting as a secret unelected legislature.

What makes a Paul Revere like Snowden necessary is that even Congress itself cannot be trusted to represent the will of the people in these corrupt times.  Polls consistently show confidence in Congress declining to around 10%, while about 80% of voters consider the government to be illegitimate, lacking the “consent of the governed.”  Of likely voters, 69% think Congress will “break the rules” for their contributors.  Other polls express the country’s universal understanding that big money invests in politics for the large financial returns it earns by controlling government.

Such polls indicate a widespread understanding that Congress does not represent the people in any real sense. Its members and leadership are instead beholden to money.  No politician wins office without that money, certainly not a governing majority.  Even aside from the lucrative government surveillance contracts that money secures from Congress in “America’s last growth industry,” the plutocrats who buy politicians and policy feel more secure when the people are stripped of their liberties.  Without civil liberties, the people of the United States cannot sustain a democracy dependent upon that “consent of the governed” engraved on its foundation stone, when laid in 1776, as essential for any government’s legitimacy.  Without civil liberty, money can continue to rule, and profit from policy.  What the overwhelming majority of people may consider reasonable is now irrelevant to Congress, whether the subject is weapon background checks or anything else opposed by the plutocrat class.  See Martin Gilens, Affluence & Influence: Economic Inequality and Political Power in America (2012).

A Washington Post  poll (question #8) taken after the Boston Marathon bombing suggests that most Americans with an opinion would worry that mass surveillance in the name of fighting terrorism would be unreasonable (i.e. “go too far”):

“Which worries you more: that the government (will not go far enough to investigate terrorism because of concerns about constitutional rights), or that it (will go too far in compromising constitutional rights in order to investigate terrorism)?

Will not go   Will go   Neither     No

far enough    too far    (vol.)   opinion

41           48        5         6

A Pew poll taken after the Snowden revelations confirmed that a similar majority finds mass surveillance unreasonable.  They answered “no” by 52-45% to the question: “Should the gov’t be able to monitor everyone’s email to prevent possible terrorism?”

When such a majority, or even a substantial minority, opposes government snooping in everyone’s electronic communications, that should be conclusive as to whether such a search and seizure is unreasonable.   If reasonable people can differ on the question, then such a search and seizure cannot be held to be reasonable.  Since, as one scholar recently observed, “the actual course that Internet surveillance law will take remains extremely difficult to predict,” it is important for the public to step in now by formulating and expressing views on reasonableness in order to determine this course.  The judicial appraisal of reasonableness that has taken place largely outside of public view is only a single data-point for the public to consider in reaching its own assessment of reasonableness.

The term “reasonable” appears nowhere in the Constitution but the Fourth Amendment, although it is a concept well-known to law.  For example, legal negligence is a breach of what a jury determines a “reasonable man” would do in the same circumstances.  A similar standard has been imported into Fourth Amendment determinations.  The Supreme Court long ago said that “probable cause for a search exists when the facts and circumstances within the police officer’s knowledge provide a reasonably trustworthy basis for a man of reasonable caution to believe that a criminal offense has been committed or is about to take place.” Carroll v. United States, 267 U.S. 132 (1925).  According to the Snowden revelations the Obama administration has  violated this rule.  A valid warrant could not have been issued under this rule when no reasonable person could believe that universal crime is or is about to take place, no matter how much irrational fear the state and its propagandists are able to drum up.

Those who would rely upon Smith v. Maryland (1979) for a rule that pen registers are exempt from the Fourth Amendment, due to the court-determined lack of public “expectation” of privacy with regard to dialed telephone numbers, ignore the Court’s important proviso that swallows this rule.  The five-judge majority held that such attributed “expectations” would not govern, and “a normative inquiry would be proper …  [f]or example, if the Government were suddenly to announce on nationwide television that all homes henceforth would be subject to warrantless entry.”  442 U.S. 740-741, n. 5.  In other words, it is not actually what the public cynically “expects” from a tyrannical and intrusive government, but what the public “normatively” considers reasonable which governs application of the Fourth Amendment.  The people are entitle to “expect” what they thinks is reasonable conduct from their government eve if that is not what they get, and they know it. Otherwise, as Justice Marshall wrote, reliance solely on expectations “would allow the government to define the scope of Fourth Amendment protections.”

The Smith dissenters Marshall and Brennan, expressly, and Stewart, implicitly, thought the “normative” exception should have governed the Smith case itself.  Smith was a case where the pen register targeted the phone of a specific suspect of a crime involving use of the telephone.  Thus Smith provides no support for the idea that the public would either expect or consider “normatively” reasonable the indiscriminate maintenance of pen registers for all the electronic communications of persons who are not suspected of any crime involving those communications. Justice Marshall also cogently attacked the foundations of Smith by pointing out that because persons may release private information to a third party for one purpose “it does not follow that they expect this information to be made available to the public in general or the government in particular. Privacy is not a discrete commodity, possessed absolutely or not at all.“   The public would likely find far more reasonable Justice Marshall’s  view that “[t]hose who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes.“  Whether in holding the contrary the Smith majority was unreasonable is for the public to decide.

The standard remedy against the state for making an unreasonable search or seizure is a damages claim against the officials involved where a jury would determine reasonableness.  At the time of the Constitution this was the practice for protection of citizens from state intrusion.  “An officer who searched or seized without a warrant did so at his own risk; he would be liable for trespass, including exemplary [punitive] damages, unless the jury found that his action was “reasonable.” … [T]he Framers endeavored to preserve the jury’s role in regulating searches and seizures.”  500 U. S. 581-2 (Scalia. J., concurring).  A jury is fairly representative of, and a legitimate disinterested proxy for, informed public opinion – what society at large considers reasonable.

The problem is that courts have invented official immunities to protect government officials from juries.  E.g.  Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364 (2009).  This tends to remove the question of reasonableness from the jury where the Constitution placed it, and delegate that decision right back to those very officials who cannot be trusted to guard the chicken-coop, and to the judges who invent defenses subversive of the Constitution to protect them.  Aside from judge-made official immunities, new judge-made “standing to sue” rules prevent victims of unconstitutional secret surveillance from seeking any remedy in court anymore.  E.g. ACLU v. NSA

The justices on the Supreme Court appointed through an increasingly corrupt and unrepresentative political process (three justices of the Smith majority were Nixon appointees) cannot be trusted to reflect the public’s objective view of what may be a reasonable sacrifice of privacy in exchange for comparable enhancements to legitimate law enforcement capacity.  The current five Judge majority’s sense of rationality cannot be trusted whenever the infrastructure of plutocracy is involved.  An infamous example is their irrational holding in Citizens United that the unlimited money which five judges allow to support or oppose politicians’ election campaigns in the form of “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”  As mentioned above, this defies the views of 95% of Americans that corporations and others invest in politics for the very purpose of buying profitable policies which would not otherwise be adopted.  In such defining cases as Citizens United these five justices, the Roberts 5, are at least as unrepresentative of public opinion and beholden to plutocratic opinion as is Congress itself.

If the state has the power to decide Fourth Amendment reasonableness in the current environment of its independence from the will of the people, it will inevitably use that power to cancel the people’s civil liberties, as it has already done in secret.  The remaining forum where the public may express its judgment about the reasonableness of mass surveillance is a criminal jury trial.  Bradley Manning was denied his constitutional right to such a trial because of the paradoxical notion that the US Military, which is uniformly sworn “to support this Constitution,” as required by its Article VI (cl. 3), instead operates a Constitution-free zone in its prosecution of soldiers like Manning.

The Supreme Court has held that “the constitutional grant of power to Congress to regulate the armed forces …  itself does not empower Congress to deprive people of trials under Bill of Rights safeguards, and we are not willing to hold that power to circumvent those safeguards should be inferred through the Necessary and Proper Clause.”  So far that broad principle has been applied only to honorably discharged soldiers, Toth v Quarles, 350 U.S. 11, 21-22 (1955), as well as, fortunately for Snowden, any civilian, even if tried abroad, Kinsella v. U.S. ex rel. Singleton, 361 U.S. 234 (1960), including the military’s civilian employees like Snowden.  Grisham v. Hagan, 361 U.S. 278 (1960); McElroy v. Guagliardo, 361 U.S. 281 (1960).  It remains for a soldier like Manning to expose the military’s violation  of its oath to support the Constitution by winning application of the Bill of Rights to at least those cases involving other than uniquely military crimes like desertion, see  Dynes v. Hoover, 61 U.S. 20 How. 65 65 (1857), or cases which are not conducted under the exigencies of the battlefield.

Snowden, if he chooses to return to the United States to face trial or is forced  to do so – notwithstanding that he has a compelling claim to political refugee status – will present a difficult target for the mass media to demonize, though they are trying.  Unlike in the case of Manning the government would have to give Snowden a public constitutional trial by jury.  From the evidence of his well-articulated public statement, Snowden would seem to have the makings of a good witness and a capable match for tyrants on a level playing field.

In any criminal trial of Snowden, a profoundly important – even defining – issue will be weighed in the balance.  If Snowden caught the state massively violating its Fourth Amendment obligations in the view of even a significant minority of the public, then the interests in maintaining the secrecy of police-state surveillance methods cannot constitutionally receive any legal support whatsoever from a justice system operating under the Constitution.   A number even smaller than the majority that polls now show generally agree with Snowden would be sufficient to predictably prevent a representative jury of 12 peers from unanimously finding the state’s search reasonable,  Obama’s aspiring police-state’s whole project would then fall as unconstitutional. The indiscriminate snooping, the secrecy of the snooping, and the effort to punish one blowing the whistle on this unconstitutional project would all be profoundly illegal.  Other whistle blowers might be encouraged to similarly inform the public about its government’s violations.

A criminal jury’s handling of this question of reasonableness would seem definitive of whether the US is a police state or still possesses sufficient civil liberties to peacefully reclaim its democracy.  Surely every citizen who has information about a crime is obliged to provide that information in accordance with legal processes.  But neither pervasive government secrecy nor enduring mass surveillance is consistent with democracy.  In any Snowden trial the preservation of the original constitutional protection against creation of a police state will require that a fairly impaneled and informed jury decide this question of reasonableness without interference from the state apparatus of secret courts and secret laws that belie any notion of due process.

Since the US justice system under the current leadership of the Roberts 5 cannot be trusted as a matter of course to provide constitutional due process, Snowden would need to negotiate the rules of the game before consenting to face a US jury.  He has some strong cards to play in such negotiations, if he can stay alive. If he plays those cards to draw a judge not blackmailed by or otherwise secretly dependent upon the national security state, to get a fair jury impaneled, and then to fairly place before that jury the question whether the government’s snooping was unreasonable and hence a violation of the Fourth Amendment, he need not remain a fugitive from US injustice.  Such a trial would constitute a fair test, and a useful one, of whether he was guilty of anything other than defending the Constitution in the noble spirit of ’76, whether Obama is guilty of impeachable wholesale violation of the Constitution, and whether the US has retained sufficient liberty that it can still be counted as a democracy.

Given the highly politicized US judiciary, Snowden is wisely playing for time and a stronger hand by first seeking justice in a political asylum process or extradition hearing in Hong Kong.  British standards of justice there have not been entirely eradicated under its current Chinese rulers and, unlike the US, the Chinese government has no apparent ax of its own to grind in the Snowden affair.

By international standards, the US and its judiciary rank below Hong Kong on a 2012-13 rule of law index.   Hong Kong ranks #8 and #9 respectively on absence of corruption and quality of its criminal justice system, well ahead of the US’s #18 and #26 rankings.  The World Economic Forum ranks Hong Kong #12 in its 2012-13 index on judicial independence.  That is substantially higher than the appallingly low US ranking of #38, which is proportionately not that far ahead of China’s #66 ranking. Snowden is clearly no fool in choosing sanctuary in Hong Kong, though he is fully aware of the coercive and corrupting power that the US can and does bring to bear on virtually any country.  China may be better situated than most to resist such pressure.

If Snowden is ultimately forced to return to the US by such coercion, his trial will determine how much of the 1791 Constitution remains in force in one of the great civil liberties contests in American history.  The jury – and the American people – would then choose between Snowden’s Constitution which empowers an informed people to protect themselves against tyrannical state intrusions on their liberty, or Obama’s Constitution, which insulates the state – and those who buy its politicians in order to exploit state powers for profit– from the consent of the governed.  Such a trial would be comparable to the celebrated John Peter ZengerTrial in colonial times.  Though, as then, the judiciary presides over what amounts to a colony of an illegitimate ruling class that the judiciary serves, a fairly selected and instructed jury, supported by the people, could nevertheless stand on behalf of the people against that class.

Rob Hager is a public interest litigator who filed an amicus brief in the Montana sequel to Citizens United for Essential Information, an organization founded by Ralph Nader