|
CounterPunch
December
5, 2002
FISA's Long
Reach
When
Will the War on Terrorism Force Conservatives to Choose States'
Rights Over National Security? Not Yet, Apparently
by EDWARD LAZARUS
At first blush, there may not seem to be much
of a link between the commitment of conservative judges to the
concept of states' rights, and policy initiatives authorizing
new national security measures at the potential expense of civil
liberties. But I believe there is: One principle will ultimately
have to yield to the other. The only question is, which will
yield?
Suppose the conservatives prove true
to the states' principles they espouse. Those very principles
may well provide a limit to the trade-offs of national security
in exchange for individual liberty that the nation continues
to make in its fight against terror. And vice-versa: If federal
power to fight terror grows, the principles undergirding the
states' rights movement will inevitably suffer.
The Values
Behind the Court's Emphasis on States' Rights
Many critics of the Supreme Court's recent
federalism jurisprudence don't believe that the allegiance of
the conservative justices to the concept of states' rights is
based on principle. In their view, conservatives simply believe
that, overall, states will make more politically conservative
policy choices than the federal government.
And, thus, in the view of these critics,
empowering states at the expense of the federal government is
just a way for these justices to advance conservative policy
results. And cleverly, it allows conservative to accomplish this
goal through the seemingly neutral mechanism of allocating power
between competing sovereigns, thereby cloaking the conservatives'
true aims.
But let's put aside such cynicism for
the moment and take the conservative Justices' states' rights
philosophy at face value. At bottom, what is it that motivates
their move to rein in federal power and reserve to states a greater
sphere of exclusive jurisdiction?
In theory, the answer is a distrust of
centralized governmental power. Principled conservatives believe
that smaller units of government are closer to the people and,
accordingly, more politically accountable and less prone to the
abuse of authority.
By contrast, these conservatives see
large federal bureaucracies as nameless, faceless behemoths.
They fear such bureaucracies will have little connection to the
people whose lives they govern and that, therefore, there will
be little constraint on their abuse of power.
These are reasonable premises, and they
enjoy a long and honorable history. They were shared, for instance,
by some members of the founding generation--who looked to the
abuses of British colonial rule, and developed a strong distrust
of a remote centralized sovereign authority. (As regular readers
of this column will know, I disagree with this view, believing
it inapposite in the modern era, but it does, at least, have
a lengthy pedigree, and it grew out of principle, whether or
not it is endorsed today as a matter of principle or convenience.)
If the Conservative
Justices Are Sincere, They Should Reign in Federal Power Here,
Too
And that idea--the idea of principled,
longstanding distrust of centralized federal power on the part
of conservatives--brings me to the link between federalism and
the current politics of terror. How one assesses most of the
new initiatives for fighting terrorism boils down to a question
of trust.
It's relatively easy to see how each
new proposal might help root out terrorist threats. The ideas
aren't irrational. But the real question is, when you look at
these initiatives either singly or collectively, at what point
do they trigger a reasonable fear that, however well intentioned,
they have opened the door to massive abuse by a central governmental
authority that lacks any real accountability?
More specifically, the question for the
prophets of federalism is this: Given their philosophical antipathy
to centralized power, at what point do they start sounding the
alarm, and announcing that the current expansion and consolidation
of federal power has gone too far?
When Will Conservatives
Start to Balk at Increasing Power Centralization?
With last week's decision authorizing
more government wiretaps and searches of alleged foreign agents,
we can see that the point hasn't been reached yet.
That decision, as readers may be aware,
was rendered by a special appeals court of conservative judges
handpicked by Chief Justice William Rehnquist (Mr. Federalism
himself). The opinion's effect was to uphold the provision of
the post-9/11 "Patriot Act" that lets federal prosecutors
use information gathered by counter-espionage or counter-terrorism
agents under special warrants issued by a secret court--the "FISA
court"
(The FISA Court's longstanding mandate
is to authorize these agents to conduct wiretaps and other investigative
searches in the name of national security. The new issue is who
gets to use the information collected: the FBI, or prosecutors
too? Following an Ashcroft memorandum, the FISA Court of Review
said both can.)
On the surface, this information sharing
between prosecutors and law enforcement might seem innocuous.
But it's not.
The Problem
with the Recent FISA Court of Review Decision
To begin, the very concept of the FISA
court search warrants--which have been issued since the Court
was founded over thirty years ago--is troubling.
Ordinarily, the Constitution requires
that the government establish "probable cause" that
an individual is engaged in criminal activity before it can obtain
a search warrant from an ordinary court. The FISA court, though,
issues warrants against alleged foreign agents on less than probable
cause--on the theory that stopping espionage and terrorism sometimes
calls for a bending of the usual rules.
Some constitutional scholars think that
the FISA court is unconstitutional for precisely this reason.
But before the Court of Review's ruling, these critics could
at least take comfort from the fact that the information gathered
through FISA warrants was used exclusively to stop spying or
terrorism--and wasn't handed over to prosecutors to build criminal
cases.
In other words, the relaxing of the Constitution's
protections of personal privacy in the FISA Court context was,
prior to the current ruling, strictly limited to the elimination
of threats rather than the prosecution of individuals. Thus,
the FISA court, at that time, could not become an easy end run
around the probable cause requirement for warrants contained
in the Fourth Amendment.
Not anymore. Some months ago, the FISA
court itself had ruled unanimously (7-0) that the USA PATRIOT
Act's information sharing provision was unconstitutional. In
its opinion, it also, disturbingly, revealed that it had discovered
75 instances where the FBI had tried to abuse the FISA warrant
process even with the then-existing safeguards. As the court
noted, the FBI was sharing information from FISA warrants with
prosecutors long before it was authorized to do so.
Last week, though, Rehnquist's specially
appointed three-judge appeals court--after a secret hearing at
which only the Justice Department was allowed to present argument--reversed
the FISA Court. Far from rejecting the USA PATRIOT Act's and
Ashcroft memo's information sharing provisions, it gave them
its stamp of approval. (See Anita Ramasastry's recent column
for this site for more detail on the decision itself.)
Trusting Government
Too Much, When Civil Liberties Are At Stake?
How one views the FISA Court of Review's
decision is surely a matter of one's trust in government. On
the one hand, it can't be denied that breaking down the old wall
between counter-terrorism agents and criminal prosecutors will
aid in the fight against terror. Now FISA warrants will be a
tool not only to stop threats, but to lock up suspected evildoers.
On the other hand, the potential cost
to civil liberties is considerable. FISA warrants are a powerful
tool to hand over to prosecutors, who are under tremendous pressure
to root out terrorists. The Court of Review let prosecutors use
relatively scant, and always secret, evidence to wiretap and
conduct searches against anyone falling into the rather amorphous
category of "foreign agent." By doing so, the Court
of Review's opinion raised substantially the risk that innocent
people will be subjected to highly intrusive government surveillance.
The FISA decision, moreover, does not
come in isolation. Rather, it comes from the same Administration
that has brought us a host of other civil-liberties-endangering
programs. There is the use of secret military tribunals for those
the government accuses of terrorism. There is the mass closure
of immigration hearings, and the secret detention and quarantining
of suspected terrorists (even those who are U.S. citizens). There
is the "TIPS" program encouraging citizens to spy on
one another and report to the government. And recently, we have
learned of the "Total Information Awareness" program--by
which the government would create information files on pretty
much everyone, which potentially would include financial and
health records, internet browsing habits, even emails. That means
you, me, and everyone we know--not people suspected of any connection
to terrorism, or even people who have any connection to people
who are.
A political check on these initiatives
is relatively unlikely. People are scared--understandably--and
the votes of elected officials will reflect that fear. Often,
civil liberties don't feel as valuable as national security to
voters: After all, it takes a while to be directly affected when
liberties are taken away, while having too little security encourages
constant fear. Understandably, people want to believe the government
is doing all it can, to the greatest extent it can. Rights may
simply seem like an impediment.
That means the judiciary will have to
play the role of finding a limit to the trade-offs between liberty
and security--that is, the role of deciding how much police power
we are going to entrust in the federal government. And ironically,
it will most likely be the states' rights judges who dominate
both the Supreme Court and most federal appellate courts who
will have to draw the line.
And so the test is upon them. Is the
federalists' fear of centralized government genuine? Or is it,
as the critics say, merely a smokescreen for advancing a conservative
political agenda? Let them stand up and be counted.
Edward Lazarus
writes about, practices, and teaches law in Los Angeles. A former
federal prosecutor, he is the author of two books--most recently,
Closed
Chambers: The Rise, Fall, and Future of the Modern Supreme Court.
Yesterday's
Features
Paul de Rooij
Ted Honderich:
a Philosopher in the Trenches
Adam Engel
A Very
Brady Homeland
Harold Pinter
The Bush
/ Blair Gang:
"A Monster of Obscene and Grotesque Proportions"
Jeremy Scahill
No Fly
Zones Over Iraq:
Washington's Undeclared War on "Saddam's Victims"
Charlotte Kates
Tension
on Campus:
A Call to Silence
Anita Ramasastry
FISA's End Run Around the 4th Amendment
Mark Hand
The Washington Post Smears Finkelstein
Ralph Nader
Make the Banks Insure Themselves
Robert Fisk
Being Set Up for a War on Iraq
CounterPunch Available Exclusively
to Subscribers:
- CounterPunch Special:
The Persecution of Gershon Legman by Susan Davis: Smut, the Post Office, Commies
and the FBI;
- Reeling Democrats: Is Pelosi the Answer?
- Gandhi v. Hitler: the Secret Race for the Nobel
Prize;
- Sullying Mario Savio's
Memory;
- Lynching Then and Now;
- Earn While You Learn: Chris Whittle and Child Labor;
The Case of the Pompous
Professor;
- The Class Struggle in
Boston: All that
Effort, But What Did They Get?
Remember, the CounterPunch website is
supported exclusively by subscribers to our newsletter. Our worldwide
web audience is soaring , with about seven million hits a month
now. This is inspiring, but the work involved also compels us
to remind you more urgently than ever to subscribe and/or make
a (tax deductible) donation if you can afford it. If you find our site useful please: Subscribe
Now!
Or Call Toll Free 1 800 840 3683
home / subscribe
/ about us
/ books
/ archives
/ search
/ links
/
|