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October 24, 2001
Lori
Allen
Life
in an Occupied Land
During Wartime
Peter
Swire
New
Anti-Terrorism Bill
Poses Old Risks
Irina
Malenko
A
Non-Western Voice
David
Vest
Welcome
to Web Hell
Patrick Cockburn
Battle
of Mazar Gets Nasty
October 23, 2001
Steve
Perry
Anthrax,
Cipro and the Bailout of Bayer
Carl
Estabrook
Just War
or
The Rule of Lawlessness?
Patrick
Cockburn
Errant
Bombs at Bagram
George
Monbiot
War
and Oil
Robert
Jensen
Crushing
Academic Dissent
October 22, 2001
Hamit
Dardagan
The
New Newspeak
Tom
Turnipseed
War
on the Poor
Patrick Cockburn
Killing
Mullah Omar's Child
David
Vest
The
War on Women
Shepherd
Bliss
Advice
from a Vietnam Vet
Hani
Shukrallah
Capital
Strikes Back
October 21, 2001
Donald
Rumsfeld
The
al-Jazeera Interview
Mark
Scaramella
Nuclear
Anxiety
October 19, 2001
Mohammed
Sid-Ahmed
Bush's
Palestinian State
Michael
Colby
A
Mailroom Manifesto
October 18, 2001
Mahajan
and Jensen
Avoiding
a New Cold War
Patrick
Cockburn
US
Planes Pound Taliban
Jamey Hecht
Gerald Ford
and the CIA
Mokhiber
and Weisman
3
Arguments
Against This War
October 17, 2001
Ballinger
and Marsh
Music
and War Resistance
Steve
Perry
The
Anthrax Chronicles
Chris
Kromm
Operation
Infinite Disaster
Susan
Block
Sex
Not Bombs
David Vest
Osama Speaks
Resources:
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Aftermath
Diary
Ashcroft's Onslaught
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Civil Liberties
Ridge Long Groomed
for
Cheney's Job
Those CIA Killing
Bids
Never Stopped
The Not-So-Great
Mayor Giuliani
Crop Duster
Ban
Will Save Lives
Madeleine Albright's
Deadly Legacy
How the Bin
Laden Women
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by Alexander
Cockburn
and Jeffrey St. Clair
A Pocket Guide to
Environmental Bad Guys
by James
Ridgeway
and Jeffrey St. Clair
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October 25, 2001
Memo to Ashcroft:
Read 'Marbury'
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.
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