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How to make a PATRIOT SAFE for Americans

October 20th, 2003

At the heart of the insights that animate the lasting genius of the United States Constitution is the principle that no individual (or branch of government) can be trusted with too much power.

The Constitution’s architecture is one of checks-and-balances, meaning that the different branches of government are independent of each other, are chosen via different mechanisms, are populated by people with different geographic and institutional bases of power and for different terms of office, exercise authority through different channels, and pursue different (presumably self-interested) objectives.  Though independent, the branches are not permitted to exercise power entirely alone.  At the broadest level, any major shift in federal governmental policy requires the cooperation (or, at least, the non-objection) of the executive, legislative, and judicial branches.  Closer to the ground, individual executive branch actions are subject to judicial review against the relevant statutes and regulations;  individual judicial determinations can be corrected by subsequent legislation;  any new law requires not only the agreement of both houses of Congress, but of the President (and, ultimately, if challenged as unconstitutional, the federal courts as well).  Within the judicial branch, district courts are reviewed by the circuit courts of appeals, which are reviewed by the nine-member Supreme Court.  Supreme Court decisions can be overcome by legislation or constitutional amendment, as required.  A constitutional amendment typically requires the concurrence of supermajorities in the Senate and House of Representatives, and then of the legislatures of three-fourths of the states.  Etc., etc.  Basically, the federal constitution is loaded with provisions that effectively prevent one individual or one branch of government from exercising plenary, unreviewable authority all by him/her/itself.

[Surely the most eloquent (and moving, if you get buzzed by this kind of thing) statement of these ideas was The Federalist #51, written by James Madison:

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. … Ambition must be made to counteract ambition. … It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

The longevity of the Constitution as a stable but evolving charter of rights and freedoms owes a great debt to the obsessive attention paid by the Founders to the institutional architecture of government.]

It is no surprise, then, that Americans tend to be hostile to claims that any single institution of government should be trusted to do the right thing, without the need for scrunity or review by other, independent institutions of government. It is precisely that sort of “Trust us!” claim that was codified in a number of the provisions of the USA-PATRIOT Act of 2001.  (Amazing how the bill’s title, “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism,” just happened to generate that catchy USA-PATRIOT acronym, no?)

Last week, a surprisingly diverse cluster of Senators introduced a bill (S. 1709, or, for the brand-conscious MTV generation, the Security and Freedom Ensured (SAFE) Act of 2003) that would re-establish some of the traditional mechanisms for judicial review and oversight of the federal government’s now-heightened surveillance and investigative powers. Led by Senators Larry Craig (R-ID) and Richard Durbin (D-IL), the bill’s cosponsors include Senators Michael Crapo (R-ID), Russell Feingold (D-WI), John Sununu (R-NH), Ron Wyden (D-OR) and Jeff Bingaman (D-NM). 

What has brought this set of Senators — left, right, and center — together?  The answer is to restore checks-and-balances to the law of surveillance.  (In the audio vision of this blog, that last line would be read in a Yoda voice.)  The SAFE bill would essentially re-assert the notion that the FBI’s exercise of surveillance powers should be uniformly subject to independent judicial review. 

What does this mean, exactly?  Back to the insights of the Founders, for a moment.  A terrific example of checks-and-balances in action is the Fourth Amendment, which, as interpreted by the courts, means that executive branch officers (e.g., the FBI) must ordinarily obtain a warrant from a neutral magistrate (who must find “probable cause”) before executing a search or seizing evidence.  Over the past two hundred years, a number of exceptions to the warrant requirement has been recognized by the courts as reasonable, such as searches incident to a lawful arrest, automobile searches, border searches, and items in plain view.  But the basic thrust of the Fourth Amendment has consistently been upheld, namely, that officers of the executive branch should ordinarily not conduct searches or seize evidence without a warrant issued on probable cause by a neutral official of the judicial branch.  Put another way, the Fourth Amendment interposes the judicial branch as a screen between the executive branch and the citizens it wishes to snoop on.

In simplest form, the USA-PATRIOT Act granted to the FBI expanded authority to monitor the activities of Americans without meaningful judicial oversight.  The SAFE Act would add judicial review to a few of the more eggregious instances of that authority.  The SAFE Act would, for example, restore the legal status quo ante for so-called “sneak-and-peak” or “delayed-notice” warrants, meaning they would be allowed only when notice to the subject of the search would (1) endanger someone’s life or physical safety; (2) result in flight from prosecution; or (3) result in destruction or tampering with evidence.  SAFE would also require notice within seven days.  The SAFE Act would essentially terminate the availability of “John Doe roving wiretaps” (which do not have to specify the person or place to be surveilled), by restoring the traditional requirement that law enforcement must identify either the person or place to be wiretapped. Likewise, in the case of “place” wiretaps, the SAFE Act would restore the requirement that law enforcement be sure that the suspect is present at the place to be wiretapped before recording.  In the case of library searches, the SAFE Act would retain the expanded definition of “business records” to include “library records”, but would reinstate the pre-USA-PATRIOT standard for seizing those records, namely, that the FBI must demonstrate it has reason to believe that the person to whom the records relate is a suspected terrorist or spy. The SAFE Act would also exempt libraries from the section of the USA-PATRIOT Act that allows access to electronic communications on the strength of an administrative subpoena rather than a court order.

All of these changes would re-assert the role of the judiciary in protecting against abuse by law enforcement.  I’m surprised that Attorney General Ashcroft is fighting so hard to defeat the SAFE Act (and the numerous companion bills that would do similar things — see CDT’s excellent website for a list of what’s been introduced in Congress this year), given his post-Waco Clinton-era record of opposition to all things Reno.  He, as much as anyone, should share the conviction that no one — not the FBI, nor the Attorney General, nor even the elders of the Republican Party — can be trusted not to abuse unreviewable, unaccountable powers.  It’s not like the SAFE Act would interpose the ACLU between law enforcement and their surveillance targets:  it’s the federal courts we’re talking about.  The federal judiciary has consistently proven its trustworthiness in handling matters of national security.

Personally, I don’t share a lot of the civil libertarians’ conventional reservations about the USA-PATRIOT Act’s expansion of federal surveillance powers.  I take the threat of destructive terrorism seriously, and I want the government to have the authority to stop the next 9/11 before it happens.  A free and open society requires security from those who would abuse our freedoms to kill and destroy. 

What I do not like, however, is the USA-PATRIOT Act’s insistence on making its surveillance powers plenary and unreviewable.  That runs directly contrary to the constitutional traditions of checks-and-balances that have served this country so well over the last 215+ years.  The SAFE Act is a reasonable corrective, and should be enacted into law.