Privacy Pleas

by Jeffrey Rosen | May 26, 2003

Since September 11, 2001, American courts have largely acquiesced to the Bush administration's relentless demands for expanded surveillance authority in the domestic war on terrorism. Although a few lower-court decisions initially challenged George W. Bush and John Ashcroft's efforts, many have been overturned on appeal. When the Foreign Intelligence Surveillance Court questioned the administration's claim that the USA PATRIOT Act had torn down the wall between intelligence-gathering and law enforcement, for example, its decision was reversed by the Foreign Intelligence Surveillance Court of Review. In New Jersey, a demand for information on immigrant detainees was granted by a trial court but denied by the state appellate court. And, in March, the U.S. Court of Appeals for the D.C. Circuit held that the detainees at Guantanamo Bay couldn't seek relief in U.S. courts; as aliens outside the United States, they weren't entitled to due process. The most dramatic victory for civil libertarians was a decision by a trial court last year ordering the government to release the names of those detained in the September 11 investigation, but even that decision is being appealed, and its prospects are uncertain. Luckily, this judicial deference has been offset by steely resolve from an unexpected quarter: the U.S. Congress. It is now obvious that, in the debate over domestic security, Congress has proved a far more vigorous defender of liberty and privacy than the courts. In January, Congress unanimously barred funding for the data-mining project known as the Total Information Awareness Program unless the Defense Department submits a report to Congress on its effectiveness and impact on civil libertiesa report that is expected soon. At the end of April, the administration asked the Senate Intelligence Committee to give the CIA and the Pentagon broad new authority to obtain personal information on American citizensincluding financial information, phone records, and e-mail logs. But the Intelligence Committee refused. Around the same time, Republican Senator Orrin Hatch of Utahacting on the administration's behalfdrafted a bill to make permanent the sweeping expansions of surveillance authority contained in the USA PATRIOT Act, many of which are due to expire in 2005. But, in the face of bipartisan resistance, Republicans agreed at the beginning of May to drop the proposal. When the administration proposed in exchange to expand its power to spy on "lone-wolf terrorists," Republican Senator Charles Grassley and Democratic Senator Pat Leahy insisted on adding a sunset provision. And the Bush administration continues to fend off congressional criticism of a leaked draft of a new domestic security bill, known as Patriot II, which would expand the government's power to conduct domestic surveillance even more dramatically than its predecessor. In the House, the Republican chair of the Judiciary Committee, James Sensenbrenner, has said that any expansion of the original act would take place over "my dead body." Why has Congress proved better able to resist the passions of the moment than the supposedly dispassionate courts? The truth is that the vision of heroic judges bravely interposing themselves against popular opinion has always been a myth. As the Harvard political scientist Robert McCloskey argued in The American Supreme Court, his definitive study published in 1960, the courts throughout American history have tended to follow public opinion rather than to challenge it. "[P]ublic concurrence sets an outer boundary for judicial policy making," McCloskey observed. "[J]udicial ideas of the good society can never be too far removed from the popular ideas." In the nineteenth and twentieth centuries, the Supreme Court occasionally nudged or tugged at public opinion but more often than not was checked by it. Moreover, on the rare occasions when courts have challenged a deeply felt current in public opinionin the Dred Scott case, which precipitated the Civil War, or in striking down progressive legislation, which precipitated the New Deal crisisthey have been forced to retreat in the face of a backlash from the political branches. When it comes to the regulation of surveillance authority, courts are especially susceptible to the hydraulic pressures of public opinion. William Stuntz of Harvard Law School has argued that popular fears inevitably determine the degree of law enforcement authority that judges are willing to grant the police. "Most legal restrictions on policing date from the criminal procedure revolution of the 1960s, which itself can be seen as a consequence of the low- crime 1950s," Stuntz writes. "Higher crime rates led to cutbacks in those legal protections in the 1970s and 1980s, just as lower crime rates have led to some expansion in the past few years." To the degree that September 11 itself was a crime wave, he adds, it is only natural to expect judicial restrictions on law enforcement to contract again in the face of fears of terrorism. The idea that judges could be persuaded to move in the opposite direction contradicts everything we know about the historical relation between popular fears of crime and the judicial response. The susceptibility of judges to public opinion is obvious from the flag- waving rhetoric that appears in many of the judicial opinions that have come down since September 11. "In an event forever seared upon the soul of America, members of the Al Qaeda terrorist group engaged in a quick series of attacks upon the United States on September 11, 2001, killing thousands of civilians in New York, northern Virginia, and Pennsylvania, with the intent to work even more crippling damage upon the country," the U.S. Court of Appeals for the Ninth Circuit declared portentously (and unnecessarily) in a technical opinion holding that a group of clergymen had no standing to take on the detention of prisoners at Guantanamo Bay. "On September 11, 2001, our country was forever changed by the events at the World Trade Center, the Pentagon, and a solitary field in Pennsylvania," an Illinois district judge wrote in a similarly purple vein to shore up his conclusion that a commemorative prayer on the first anniversary of the attacks didn't offend the Constitution. "This day is etched in the collective memory of the country, if the not the world, and continues to evoke strong patriotic, emotional, and psychological responses." "I was at a meeting of federal judges recently, talking about the war on terrorism," says James Dempsey of the Center for Democracy and Technology and a former House Judiciary Committee staffer, "and somebody made a plea about the need for judges to save us. One of the federal judges replied, 'Look, lifetime tenure isn't that important. We're human beings, and we don't like to be criticized.'" Judges may be especially reluctant to take on the government in cases challenging surveillance and detention authority after September 11 for a number of reasons. Suspected terrorists are the least sympathetic of privacy victims, and judges are naturally concerned about setting free a dangerous individual who could go on to do terrible damage. For this reason, lower-court judges may be slightly bolder than appellate judges because they know they won't have the last word in any particular case. Appellate judges, by contrast, seem more cautious because they know that the responsibility in the event of another attack will be entirely on their shoulders. Moreover, even if a few judges could be persuaded to dissent from the historical pattern, it's not clear on what constitutional grounds they would stake their case. Constitutional doctrine, as it has evolved, provides remarkably few restrictions on surveillance technologies. During the twentieth century, judges held that the government has virtually unlimited access to personal data stored outside the home. Because of the traditional (and appropriate) deference to the executive in matters concerning national security and immigration, courts have little basis for challenging the president in these areas. The only area where constitutional doctrine consistently favors the individual is in cases involving the First Amendment, which is hardly central to the post-September 11 interrogations. Because of the amorphous constitutional standards, Congress has tended to take the lead in regulating surveillance technologies while judges have struggled to keep up with a rapidly changing technological landscape. Since the '60s, Congress has passed more than a dozen important laws protecting privacy, ranging from Title III, the wiretapping statute, to the Foreign Intelligence Surveillance Act, regulating the surveillance of suspected agents of foreign powers. These laws have provided far more extensive privacy protections than those the Supreme Court said were constitutionally required. In the wiretapping act, for example, the Court said the Fourth Amendment only prohibited government eavesdropping; but Congress decided to regulate private snoopers as well. The regulation of e-mail privacy has followed a similar pattern: Congress passed a comprehensive law regulating e-mail privacy in 1986; nearly 20 years later, the courts still have not decided whether or how stored e-mail is regulated by the Constitution. "Congress has proven itself the most important branch of government in the area of privacy," writes the cyberspace scholar Orin Kerr of George Washington University. "Congress makes rules and acts prospectively, while the courts resolve disputes and act retroactively," agrees Marc Rotenberg of the Electronic Privacy Information Center. "When it comes to surveillance authority and information technology, in the modern era Congress has played a greater role in shaping future conduct than the courts have." In the wake of Watergate and the Church Commission, which investigated the excesses of the CIA and FBI, libertarians on the right and civil libertarians on the left have formed a bipartisan constituency for privacy in Congress. "On the House Judiciary Committee in the 1990s, there was a real split between the bottom row and the top row," says Dempsey. "The top row included the Henry Hydes and Bill McCulloms, who were prepared to defer to the executive branch on issues of law enforcement and national security. The bottom row was more skeptical, more libertarian, more deeply affected by Waco and Ruby Ridge." Since the last election, the bottom row has been running the show in the House: Sensenbrenner is a determined libertarian who has repeatedly made clear his opposition to the excesses of Ashcroftism. But the defenders of privacy in Congress are no longer limited to the libertarian extremes. During the past year, a group of more moderate Republicans and Democrats on the Senate Judiciary Committee have taken on the administration for different reasons. In addition to Leahy and Russell Feingoldthe most committed Democratic civil libertarians on the Senate Judiciary CommitteeRon Wyden, a slightly left-ofcenter Democrat, has emerged as a staunch advocate of privacy rights. Wyden is most responsible for the current restrictions on the Total Information Awareness Program and has raised questions about the Computer Assisted Passenger Prescreening System. On the Republican side, Grassley joined Arlen Specter in complaining that the administration wasn't sufficiently forthcoming in answering Congress's questions about the implementation of the USA PATRIOT Act. Specter was particularly unhappy about the Justice Department's refusal to give the Judiciary Committee a lower court's secret decision about foreign intelligence surveillance authority at the time that it was issued. "To use the phrase 'privacy champion' about Grassley and Specter isn't crazy," says Rotenberg. "Both have expressed very serious concerns about excesses by the White House, and they are moderate Republicans, not deeply conservative libertarians." Some of the concern about privacy in Congress reflects anger at the administration for having ignored the legislative branch's institutional prerogatives. By declaring that research for the Total Information Awareness Program had to end within 90 days unless the administration submitted a report to Congress, the House and Senate left the door open for research to continue as long as the administration kept them in the loop with "appropriate consultation," to use Congress's words. "Congress is most likely to exercise its rights when it feels like it hasn't been adequately consulted or when one of its powers is being invaded by the executive branch," says Dempsey. By offending the Hill with heavy-handed assertions of presidential prerogative, the administration has energized a bipartisan constituency to resist its excesses. But the most important reason Congress has proved more willing than the courts to challenge Bush and Ashcroft is that, on the left and on the right, a principled, bipartisan libertarian constituency has emerged that is willing to defend privacy, even in the face of popular fears. This constituency has more freedom to assert itself now than it did in the immediate aftermath of September 11, and it would be sorely tested by another serious terrorist attack on U.S. soil. But, because of a combination of social forces that arose in the post-Watergate erafrom increasing suspicion of the executive to increasing sophistication about the dangers of invasive technologiesthe most popular branch of government has proved a more reliable defender of American liberties than the supposedly independent courts. Because American liberties have never endured in the face of determined opposition from the political branches, Congress's new assertiveness in checking the excesses of this president is an occasion for celebration and relief.

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