Our Vanished Civil Liberties
The Obama administration is not zealous or monolithic. This White House and Justice Department harbor no powerful attorneys rationalizing “enhanced interrogation” or military arrests of Americans inside the country. But they frequently acquiesce to the political right, producing policy contradictions in some areas of the law that may, in the long run, damage constitutional protections.
Take sentencing for narcotics. On the one hand, the administration supported a sentence reduction for crack possession. Congress went along in July 2010 by shrinking the illogical disparity between penalties for crack versus powder cocaine (from 100-to-1 to 18-to-1). The heavier crack sentences have had a dramatic racial impact, for crack use has been more prevalent among blacks, while whites have been inclined toward powder. For years the legal establishment had pushed to eliminate the disparity entirely. But then, after Congress reduced it, the Obama Justice Department argued in court that anyone who committed the crime before August 2010 should receive the higher sentences. Some judges were flabbergasted and registered strong objections. The administration later agreed to limited retroactivity, recommending reduced sentences for some offenders—but not those who possessed weapons during their crime or who had serious criminal records.
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The Fifth Amendment, in the form of the Miranda warning against self-incrimination, has also come under pressure from the administration. In response to Republican complaints that certain terrorism suspects were advised of their rights during interrogation, officials have sought to weaken the protection in terrorism cases. After considering legislation, as some Congressional Republicans have advocated, the administration settled for a less troublesome memo by the FBI. It advises agents to delay reading terrorism suspects their rights—not only to ask those in custody “public safety questions,” as the Supreme Court has allowed, but also “to collect valuable and timely intelligence not related to any immediate threat.” Such unwarned statements would presumably be inadmissible in court.
Similarly, the administration has moved in two directions on the national security letter (NSL), which can now be issued on the slightest pretext by midlevel FBI officials, without judicial oversight, to demand records from libraries, Internet providers, financial institutions, telephone companies and others. Each comes with a gag order warning the recipient to say nothing about it except to an attorney.
On the one hand, Obama’s Justice Department chose not to appeal an important First Amendment ruling by the Second Circuit Court of Appeals that gives a citizen or a company more leverage to challenge a gag order. Previously, you could do so only once a year, and a judge had to defer to the government’s claim that disclosure would endanger national security, diplomatic relations, an ongoing investigation or personal safety. The appeals court shifted the burden to the government to justify a gag order when a recipient objects. That opinion, which the Justice Department has applied nationwide, was codified in a bill approved last spring by the Senate Judiciary Committee. (The measure died after the Democratic leadership failed to bring it to the floor. That left the existing law’s tougher approach intact everywhere except in the Second Circuit, meaning that a future administration—or the current one, should it change the policy—could choose to employ the stricter provisions elsewhere in the country. And it could appeal any adverse ruling to the Supreme Court.)
On the other hand, despite its flexibility on the gag order, the administration has made extensive use of national security letters, issuing some 50,000 annually, in part to compile lists of people’s e-mail and phone contacts as a way of assembling mosaics of associations. The NSLs cannot obtain the contents of e-mails and phone conversations; those still require warrants. But last year officials proposed an expansion so that NSLs could include Internet activity under an undefined category called “electronic communication transactional records.” This might include websites visited, search terms and online purchases such as books, so it has met resistance in Congress and is being reconsidered.
The Patriot Act is ripe for reform, but Obama shows no taste for revision, only renewal. He endorsed Congress’s move last spring to extend several expiring provisions until 2015 without even the minor improvements proposed by Democrats on the Senate Judiciary Committee. Hastily passed and signed into law with little debate or opposition six weeks after 9/11, the Patriot Act weakens an array of privacy laws enacted after revelations in the mid-1970s that antiwar and civil rights activists and others had been spied upon by the FBI, the CIA, the IRS, the National Security Agency and military intelligence. An extensive report at the time by a committee headed by Senator Frank Church provoked Congress to regulate domestic intelligence-gathering—something that had not been tried before.
The new law, the Foreign Intelligence Surveillance Act of 1978 (FISA), established a secret court of federal judges to receive classified applications from the FBI and other agencies to bug homes and offices, wiretap phones and demand data on people believed to be agents of a foreign power. The subjects would never know they were targets and therefore could never contest the clandestine orders or rebut the secret conclusions. The Fourth Amendment’s criteria for searches did not need to be observed: no probable cause, no warrant “particularly describing the place to be searched, and the persons or things to be seized.”
This evasion of constitutional protections was conditional, however. The statute demanded that the “primary purpose” be intelligence collection, not criminal investigation, a limitation weakened more than two decades later by the Patriot Act: it changed the wording to “a significant purpose.” That allowed agencies to gather broad categories of information when merely “relevant” to an investigation. The Patriot Act also added as permitted targets those thought to be associated with terrorist groups as well as foreign governments. These and other amendments opened the door to collecting evidence for criminal prosecution without observing the Fourth Amendment’s rules.
Inside the United States, the secret FISA warrants have undoubtedly produced masses of information about citizens and foreigners alike, but inspectors general of various agencies have found little indication that the data have been very useful in unraveling terrorist plots. Rather, would-be terrorists have been undone almost entirely by informants, sting operations or their own bungling. A car bomb fizzled in Times Square, an underwear bomb fizzled in a plane approaching Detroit. Meanwhile, the watchers watch, the collectors collect and the analysts struggle against the overwhelming din of excessive information, trying to pick out the melody from the noise.
In August 2007, candidate Obama delivered a ringing denunciation of Bush’s policies. The speech makes good reading. “No more national security letters to spy on citizens who are not suspected of a crime,” he declared. “The separation of powers works. Our Constitution works…. This administration acts like violating civil liberties is the way to enhance our security. It is not. There are no shortcuts to protecting America.”