The Rights of the People (2 page)

Third, because the Bill of Rights restricts only government, not private entities, I focus here on the powers of the state, not the intrusions of the private sector. There is some overlap, to be sure, especially in the area of data collection and surveillance, where information collected privately can be obtained by government. That interface is examined, but most nongovernmental impact on the constitutional culture is not.

By concentrating on these three areas of geography, consequential rights, and governmental actors, I set aside certain issues. No writer enjoys making difficult omissions, so I take no pleasure in the minimal discussion of the right to bear arms in the Second Amendment, for example, and the ban on cruel and unusual punishment in the Eighth Amendment—worthy topics but tangential to the human and legal struggles illuminated here.

It is easier to exclude provisions of the Bill of Rights that have not been central to constitutional conflict. We have not seen violations of the Third Amendment, which prohibits soldiers from moving into private houses during peacetime without owners’ consent, or of the Seventh Amendment, which guarantees the right to jury trials in civil suits. There has been judicial jockeying around federalism and states rights but arguably no serious defiance of the Ninth and Tenth Amendments, which provide that the people and the states reserve rights that are not enumerated or delegated.

• • •

To search and seize, officers of the law must touch you and your possessions, either with their hands or, increasingly, with computer software that intrudes into digital files. Uncontrolled, the authority to search “is one of the first and most effective weapons in the arsenal of every arbitrary government,” Justice Robert H. Jackson wrote in 1949. And so the Fourth Amendment’s shield belongs “in the catalog of indispensable freedoms,” he declared. “Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual, and putting terror in every heart.”

Today, the government’s powers to probe into your private life have been arranged along a broad spectrum. If you stand at the end most faithful to the Constitution, you see the traditional search warrant, which is supposed to follow an exacting requirement: a sworn affidavit from the executive branch, and endorsed by the judicial branch, that probable cause exists to believe that a particular piece of evidence of a particular crime will be found in a particular place at a particular time. This is where the brightest sunshine illuminates the actions of law enforcement.

Take a few steps from the Constitution and you find yourself in the twilight of crime-ridden neighborhoods where cops frisk pedestrians and search cars without warrants, on the officers’ sole determination that they have reasonable suspicion or probable cause. Their actions may be reviewed by the courts, so you can still watch government at work, but dimly.

Traveling along the continuum, you plunge into a darkness where the secret Foreign Intelligence Surveillance Court issues clandestine warrants authorizing stealthy break-ins at homes and offices, collections of phone and e-mail communications, and sweeps through financial and travel and medical records. You may never know that you’ve been a target, but at least a neutral judge has reviewed the surveillance request.

Finally, toward the furthest end of the spectrum, most distant from the protections of the Constitution, you are subject to searches and monitoring at the whim of middle-level agents in the executive branch, without probable cause, without public knowledge, without a judge to check and balance the voracious appetite of law enforcement for vast quantities of information. The flood of unverified intelligence has overwhelmed analysts and investigators, distorting their work. From lightness to darkness, this continuum is mapped by the chapters that follow.

The intimate intrusions are part of a long history, and while this book
is about the present, it comes with some perspective on the past.
Chapter One
, “Saving the Constitution,” sketches America’s deviations from constitutional principles in six episodes from the eighteenth century into the current post-9/11 era.

The next three chapters go into the streets to watch narcotics police, gun squads, and cops on the beat honor or ignore the Fourth Amendment’s guarantee against unreasonable search as they try to hold down common crime. These issues predate 9/11, of course, but stand on the same spectrum as the more insidious violations of privacy since then. Each chapter describes the intricate literature of evolving court opinions governing what police may see and seize.

Chapter Two
, “Another Country,” portrays the interaction between that body of case law and officers’ behavior toward citizens in dangerous neighborhoods.
Chapter Three
, “Defending the System,” explores the temptation for cops to fudge the facts, and defense attorneys’ efforts to get evidence suppressed by exposing police lies in court.
Chapter Four
, “With Warrants and Without,” assesses the current health of the search warrant, which is the key protection of the Fourth Amendment. The section examines the Supreme Court’s accelerating campaign to emasculate the exclusionary rule, that longstanding practice of protecting rights by excluding evidence seized in violation of the Constitution.

The three following chapters explore the hidden mechanisms, enhanced since September 11, 2001, now being used to collect personal information without meeting the standards set by the Fourth Amendment.
Chapter Five
, “Patriotic Acts,” describes the impact on several Americans of secret surveillance under the Foreign Intelligence Surveillance Act (FISA), as expanded by the Patriot Act.
Chapter Six
, “The Law Falls Silent,” reports on the human costs and legal damage of gag orders and warrantless subpoenas called National Security Letters, of computerized monitoring by the National Security Agency, and of privacy laws now riddled with exceptions.
Chapter Seven
, “The Right to Be Let Alone,” examines the inaccuracies of no-fly lists, the privatization of personal data collection, and the rising tyranny of technology.

Chapter Eight
, “Life, Liberty, and the Pursuit of Terrorists,” explores the latitude of the executive branch in prosecuting those accused of terrorism, the strengths and failures of the federal courts, the protection of classified evidence, the designation of Americans as enemy combatants, and the dangerous legacy of the Military Commissions Act, which authorizes a parallel judicial system wholly within the executive branch. The chapter offers illustrations of the state of mind that can corrupt investigators
in a time of fear. The Epilogue considers the differences between democracy and dictatorship, reflecting on the importance of the constitutional structure in restraining officials who display behavior more typical in authoritarian systems.

Woven into these chapters is the flow of legal history, for the present cannot be understood and the future cannot be envisioned outside the background of constitutional struggles that have gone before. The statutes and court opinions that trace the lines of liberty across the decades are the means of our hardships and our benefits, so it is worth knowing about them. Furthermore, every Supreme Court case is a human story. It decides a person’s fate. It also creates precedent for the next individual, and the next, and so on until the scope of rights is adjusted for all. This is the magic of the rule of law.

As I researched, it became evident that to understand how constitutional rights are maintained and damaged, it helps to know something about the law and its mechanisms, just as in maintaining your car and listening to your mechanic, it helps to know something about internal combustion engines and how brakes work. So I’ve included some legal detail in this book, sufficient for better understanding.

I am not an attorney. I have had no legal training, just informal teaching by numerous lawyers and judges in answer to my questions. The long learning process has brought me a certain understanding of the law, but the result has no pretensions of constitutional scholarship. It is a layman’s attempt to knit together legal and personal narratives that define the evolving limits of our constitutional protections. I have tried to give legal context to the human stories. If it informs lawyers as well as laymen, as it may, that’s to the good, and I’ve included extensive footnotes helpful to professionals. But the law is too important to be left to the lawyers, to paraphrase Georges Clemenceau about war and generals. We laymen know too little about our Constitution and think too superficially about its influence on the qualities of American life. Civic duty requires more.

The best view of American freedoms may be from a country without them, as I learned in Moscow, where I lived for four years as a
New York Times
correspondent in the Soviet era of the 1970s. Devoid of the intricate balances and protections that preserve individual rights, the Soviet system sent many of my friends to prison camps and Siberian exile after sham trials for the mildest political dissent. The conforming population, cowed and conditioned, did not quite know what they were missing, just as many Americans don’t see clearly what they have. The clarity I gained there about the mechanisms that preserve our rights helped guide me
through this project, so I occasionally use the Soviet Union as a method of illumination. I wish those who made policy in post-9/11 Washington had spent time in Moscow.

There are many ways to honor America. This book is mine. I have completed this journey of self-education in the belief that the most terrifying possibility since 9/11 has not been terrorism—as frightening as that is—but the prospect that Americans will give up their rights in pursuing the chimera of security.

So many skilled attorneys displayed so much generosity to educate me in the law that if their time had been reckoned in billable hours, it would have cost a small fortune. They talked with me in person, by phone, and by e-mail, and sent me volumes of indictments, briefs, motions, and rulings to document my work. They answered my uninformed questions with precision and patience. Many who deserve gratitude are mentioned in the text, but others contributed much more than their brief appearances in the book suggest, so they are named here.

My friend David Tatel, a federal appeals court judge, opened doors to valuable people on the bench and in the bar, helped me understand aspects of the law and the Constitution, and provided useful comments on drafts of chapters. A. J. Kramer, the Federal Public Defender in Washington, D.C., kindly lent me an office, where I spent many weeks learning from him and his crew of superb lawyers, poring over case records, attending motion hearings and trials, and watching the Bill of Rights play out where it matters most acutely—in the criminal courts. Kramer also read part of the manuscript to check facts and give feedback. Assistant public defenders Tony Axam, David Bos, Beverly Dyer, Neil Jaffee, Jonathan Jeffress, Tony Miles, Shawn Moore, Michelle Peterson, Mary Petras, Lara Quint, Gregory Spencer, Robert Tucker, and Carlos Vanegas spent considerable time leading me through the complexities of criminal law. Other helpful defense attorneys included Whitney Boise, James Brosnahan, Frank Dunham, Richard Foxall, Steve Kalar, Larry Kupers, Bob Luskin, Jerome Matthews, James McCollum, Andrew Patel, Gregory L. Poe, Barry Portman, Jay Rorty, Elden Rosenthal, Marc Sussman, Bryan Stevenson, and Kristen Winemiller. Most prosecutors and some judges,
except those named in the text, preferred anonymity, so my thanks to them must remain private.

William B. Wiegand, an assistant U.S. attorney, patiently explained legal issues on many occasions over the years, referred me to relevant case law, and introduced me to D.C. police officers who allowed me to accompany them as they went on operations. Sergeant G. G. Neill (now retired), Sergeant J. J. Brennan, and the men and women of their gun and narcotics units, respectively, were welcoming and open, providing me with a rare window into police work on the streets. My observations and conclusions are entirely my own, however. Neither the officers nor the others who assisted me should be held responsible for anything I have written, with which they may or may not agree.

Anthony Lewis and David Cole oriented me at the outset, offering overviews of important issues. Kenneth Ballen, Ann Beeson, Michael Bromwich, Alan Davidson, Mary Holper, Jameel Jaffer, Joe Onek, Paromita Shah, Judge Scott Vowell, and James Woodford helped with contacts, cases, and insights, as did many others who are cited in this book. Alan Hirsch, an expert on confessions, read several chapters and offered helpful feedback. Joe Polski, chief operations officer of the International Association for Identification, graciously provided FBI reports on fingerprint misidentification. Martha Gies put me in touch with relatives of some of the Portland Seven.

For police and other government documents, I relied heavily on those obtained in lawsuits by the American Civil Liberties Union under the Freedom of Information Act. The ACLU was also a treasure trove of information on current constitutional cases being litigated around the country. Details on various rights violations that did not always reach court were accessible through the First Amendment Center, the Constitution Project, and the libertarian Cato Institute. My friend David Burnham provided data on various issues through TRAC, the Transactional Records Access Clearinghouse, which processes digital records it obtains—usually against great resistance—from the federal government. Of the many fine books I used to educate myself, two stood out as especially helpful: David M. O’Brien’s
Constitutional Law and Politics
and Geoffrey R. Stone’s
Perilous Times
. The reporting on warrantless surveillance by Eric Lichtblau and James Risen of
The New York Times
, which exposed a major violation of the Fourth Amendment, threw light on the shadowy end of the continuum of abuse. Jane Mayer’s articles for
The New Yorker
and her probing book
The Dark Side
helped open the scourge of torture to public view. My epilogue’s title, “The High Court of History,”
comes from a speech by John F. Kennedy to a joint convention of the General Court of Massachusetts on January 9, 1961.