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David Cole | The Nation

David Cole

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David Cole

David Cole

Legal Affairs Correspondent

David Cole (@DavidColeGtown), The Nation's legal affairs correspondent, is the author, most recently, of The Torture Memos: Rationalizing the Unthinkable (New Press).

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One of the most surprising decisions of the Supreme Court term just concluded was Justice Antonin Scalia's ruling in favor of a criminal defendant who claimed that a thermal imaging device violated his Fourth Amendment rights. The police used the device to measure the heat leaking from Danny Kyllo's house and inferred from that information that he was growing marijuana inside with heat lamps. Indeed, he was, as the subsequent search revealed: more than 100 plants' worth.

In the most unlikely collaboration of the year, Justices Scalia and Clarence Thomas joined forces with Justices Ruth Bader Ginsburg, Stephen Breyer and David Souter to rule that use of the thermal imaging device was an unconstitutional search. The decision is surprising in several respects--and not just because it rules for a drug defendant. It announces a bright-line rule barring the use of high-tech devices to intrude upon the privacy of the home, in an era where the Court has largely abandoned bright-line rules except where they benefit the police. It speaks in majestic tones about protecting privacy from the onslaught of technology, from a Court that has all but given up on privacy in favor of crime control. And it reaches a result that was by no means foreordained. This was a close case, as Justice John Paul Stevens's quite reasonable dissent shows.

So what's going on here? Should liberals (or drug manufacturers) start looking to Justices Scalia and Thomas for protection of criminal defendants' rights? I'm afraid not. This is a rare instance of an alliance between liberals and libertarians, united here in support of the sanctity of the home. For Scalia and Thomas, at least, it all comes down to property. Step outside, and you're fair game.

The dispute centered on whether the use of the thermal imaging device was a "search" that invaded Kyllo's "reasonable expectation of privacy." The police argued that the device merely registered information from the outside of the home. A police officer's observation that snow melted more quickly on certain parts of a roof would provide the same information, but no one would call that a "search." Since the information came from outside the house, it invaded no privacy.

Justice Scalia rejected that approach, and concluded that whenever the police use "sense-enhancing technology" not in general public use to obtain information that they otherwise could not have gathered without entering the home, they have conducted a search, for which they must have probable cause and a warrant. His opinion waxes eloquent on the home as castle and the need to protect citizens from the intrusions of modern technology. (None too soon, as police are already working on ultrasound technology for houses, although one wonders how they're going to apply petroleum jelly to aluminum siding.)

In its attempt to protect privacy from advancing technology, the decision is a landmark and will stand along with the Warren Court's 1967 decision in Katz v. United States, which extended the Fourth Amendment to include wiretapping. But in another respect, the decision marks an ironic return to the pre-Katz world. Before Katz, Fourth Amendment law was governed by property notions, leading the Court to make ridiculous distinctions between listening devices attached to an outside wall with a thumbtack, which were said to invade property and require a warrant, and similar devices merely taped to the wall, which were deemed not to invade property and therefore not to require a warrant.

Katz importantly held that the Fourth Amendment protects "people, not places" and eschewed arcane property questions for an inquiry into whether the government had invaded a person's "privacy." But Kyllo brings us back full circle, because without any reasoned explanation it expressly limits its protection to homes. Justices Scalia and Thomas's libertarian instincts stop at the doorstep. A man's home may be his castle, but in the view of these Justices, at least, the streets still belong to the police.

To write a letter on behalf of Juan Raul Garza, as well as the other prisoners currently
on state and federal death row, visit our Death Row Roll Call.

On March 27, a federal district court struck down the University of Michigan Law School's affirmative action admissions plan, ruling that the school's interest in a diverse student body did not justify using racial preferences. This past December another court in the same district reached the exact opposite result, finding the university's parallel affirmative action program for undergraduates was justified by diversity.

These diametrically opposed rulings on a single university's affirmative action programs perfectly mirror the current division in the nation's courts. Affirmative action, a near-universal practice in universities across the nation, is under serious legal attack. Disappointed white applicants have sued universities in Georgia, Washington and Texas as well as Michigan.

As in Michigan, the lower courts in these cases have divided sharply, so it is only a matter of time before the none-too-hospitable Supreme Court takes up the issue. The main point of disagreement concerns whether diversity is a sufficiently "compelling interest" to justify race-conscious admissions. There is a strong case for diversity-based affirmative action. But another justification, not generally pressed by the universities, offers a more cogent and morally persuasive rationale for affirmative action: society's interest in integration itself.

Since 1978 affirmative action in higher education has rested on the slimmest of reeds--a lone opinion from a Justice who could not attract a single other Justice to his views. In Board of Regents of the University of California v. Bakke, a divided Supreme Court struck down a medical school admissions program that set aside a predetermined number of seats for minority applicants. Four Justices deemed any consideration of race illegal under a federal statute that prohibits discrimination by entities receiving federal funds, while another four concluded that the program was a valid response to broad societal discrimination.

The decisive opinion in the Bakke case was that of Justice Lewis Powell. He voted to invalidate the University of California's program, but he also stated that racial preferences are sometimes permissible, citing with approval Harvard's affirmative action program, in which, in the name of diversity, race was considered as one "plus factor" among many, and all applicants competed for all openings. Harvard's program was not even at issue in the case, but Justice Powell's views about it have guided universities ever since.

Subsequent Supreme Court opinions have appeared to diverge from Justice Powell's analysis. For example, Justice Sandra Day O'Connor, a critical swing vote, explicitly rejected diversity as a justification for an FCC affirmative action program, stating: "Modern equal protection has recognized only one [compelling state] interest: remedying the effects of racial discrimination." The FCC's interest in broadcast diversity, she reasoned, was "simply too amorphous, too insubstantial, and too unrelated to any legitimate basis for employing racial classifications." Her opinion was in dissent, but would probably garner five votes today. In other opinions, however, Justice O'Connor has cited Justice Powell's Bakke opinion with apparent approval.

One thing is certain: The argument for diversity finds virtually universal acceptance in academe. More than 360 higher education institutions signed on to briefs defending the University of Michigan's affirmative action program. And for good reason: In our increasingly diverse society, the ability to communicate and understand across racial lines is an essential part of citizenship, and teaching that skill requires a diverse setting. Not considering race in the diversity mix would effectively penalize minorities by denying them benefits that Iowans, violinists, potential donors' children and synchronized swimmers receive.

The usual response is that the Fourteenth Amendment treats racial classifications differently. But the equal protection clause does not prohibit all consideration of race. In its recent voting rights cases, for example, the Court held that race may be considered as one factor among many in redistricting, as long as it is not the "predominant motive." The redistricting process necessarily considers all sorts of factors as proxies for likely political allegiances, and adding race to the mix does not raise the same concerns as other kinds of race-conscious decision-making. Similarly, the search for diversity necessarily considers many factors as proxies for intellectual and cultural diversity, and race should be permissible as one among many.

Ultimately, however, integration itself may be a stronger justification for affirmative action than diversity. An integrated student body undoubtedly adds to diversity. But so does admitting violinists, and surely there is a stronger argument for admitting African-Americans than violinists. Higher education is one of the few arenas in modern life where racial integration remains a realistic possibility. Despite the demise of Jim Crow, most of us continue to live, work, socialize and worship in effectively segregated settings. College student bodies, by contrast, can be integrated because they are consciously selected and are not predetermined by geography or class. Integration in higher education in turn teaches us that integrated communities are possible, and that living in such communities can break down the deep barriers that continue to divide the races. At the same time, because a college degree is essential to professional success, integration in higher education is necessary to any measure of integration beyond.

The Court and the country have failed to live up to the promise of Brown v. Board of Education. The last thing we should do is turn the Constitution into a barrier to one of the last remaining arenas of true integration in America.

At the close of its session, Congress considered two bills addressing classified information. One had been pending for more than a year, had more than a hundred co-sponsors, was the subject of two lengthy hearings and received virtually unanimous approval in amended form from the House Judiciary Committee. The other was quietly attached to an intelligence authorization bill and was never the subject of public hearings. But secrecy has a way of trumping democracy, and the latter, which one member of Congress accurately termed an "official secrets act," passed, while the former, which would have restricted government reliance on classified evidence in immigration proceedings, died on the floor. At press time it was unclear whether Clinton would sign or veto the secrecy bill.

The Intelligence Authorization Act would make it a felony for government officials to disclose any "properly classified" information. That is eminently reasonable. By law, information may be classified only if its release would threaten national security, and officials with security clearances should not be allowed to abuse that authority by releasing information that imperils the nation.

But in practice, information is often classified that has no real potential for undermining national security, as is routinely demonstrated when leaks are made public without the sky falling. Because the entire process is secret, there is no effective check on classification decisions. The Clinton Administration--which has actually been more sensitive to the problem of overclassification than many of its predecessors--created more than 8 million new secrets in 1999 alone. And once a secret is classified, it is often decades before it is declassified, if ever.

Examples abound of improperly classified information. The most notorious is the Pentagon Papers. Erwin Griswold, Solicitor General under President Nixon, who argued the Pentagon Papers case for the government, later admitted that he had not "seen any trace of a threat to the national security" from their publication. His extensive experience with classified information taught him that "there is massive overclassification and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another."

The new criminal penalties will only exacerbate the problem. Under prior law, government officials could lose their security clearances and jobs for disclosing classified material, but Congress had always reserved criminal penalties for leaks of the most sensitive sort--national defense information, the names of spies and the like. The new law makes it a crime to disclose the most mundane classified information, thereby greatly increasing the incentives to classify for the wrong reasons, since the criminal sanction will silence potential whistleblowers.

The bill that did not pass, the Secret Evidence Repeal Act, would simply have required immigration officials to meet the same standards of fairness in using classified information in immigration proceedings that government officials must satisfy in criminal cases. Under current practice, immigration officials assert the authority to lock up and deport immigrants on the basis of classified evidence, presented behind closed doors to an immigration judge, without any disclosure to the immigrant or his lawyers. The Secret Evidence Repeal Act would have required the government to disclose a summary of the evidence, which would provide the immigrant with "substantially the same ability to make his defense" as would the classified evidence itself.

Here, too, one of the principal problems is overclassification. FBI officials routinely classify all information gathered during a "counterterrorism" investigation, including even routine newspaper clippings. When the FBI fails to come up with evidence to support a criminal charge, it often asks the INS to seek deportation, turning over the classified results of its counterterrorism investigation. The INS then presents that evidence behind closed doors in immigration proceedings. When the government's actions are vigorously challenged, however, it virtually always finds itself able to disclose much of the evidence. And in many of those cases, what is disclosed is far more often simply embarrassing to the government than related to national security.

Secrecy is anathema to the adversarial process and a healthy democracy. In courtrooms it thwarts the search for truth. And in the public arena secrecy allows government officials to avoid public scrutiny. In both areas secrecy often leads to sloppy thinking and disastrous results. At the same time, secrecy breeds skepticism and paranoia among government critics. As Lord Acton said, "Everything secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity."

To the Rehnquist Court, criminal justice is all too often a technical matter best left to the states.

The law governing the case of Elián González, the 6-year-old Cuban boy found clinging to an inner tube after his mother drowned on the way here from Cuba, could not be more clear.

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