Everyone is entitled to his own opinion, but not to his own facts.
--Daniel Patrick Moynihan

June 26, 2013

Frozen Scandals and the Myth of Self-Correction

By David K. Shipler

            Perhaps it’s premature to say, but it seems likely that Edward Snowden’s enormous sacrifice will be in vain. In the pattern of recent leakers and whistle-blowers before him, his damaged life will have no compensation in the form of revised policy. Nothing will change. So it has been with the likes of Thomas Tamm, Thomas Drake, and others who didn’t go to jail as Army private Bradley Manning will, but suffered the destruction of their careers for the sake of informing an American public that basically didn’t care about the wrongdoing they exposed.
This is the phenomenon of the “frozen scandal,” as Mark Danner described it brilliantly in 2008, in The New York Review of Books:
“We remember, many of us, a different time. However cynically we look to our political past, it is there that we find our political Eden: Vietnam and its domestic denouement, Watergate—the climax of a different time of scandal that ended a war and brought down a president. In retrospect those events unfold with the clear logic of utopian dream. First, revelation: intrepid journalists exposing the gaudy, interlocking crimes of the Nixon administration. Then, investigation: not just by the press—for that was but precursor, the necessary condition—but by Congress and the courts. Investigation, that is, by the polity, working through its institutions to construct a story of grim truth that citizens can in common accept. And finally expiation: the handing down of sentences, the politicians in shackles led off to jail, the orgy of public repentance. The exorcism of shame, the purging of the political system, and the return to a state, however imperfect, of societal grace.

June 18, 2013

The "Expectation of Privacy" and Surveillance in the 21st Century

As published at thenation.com June 17, 2013

By David K. Shipler

In 1928, the Supreme Court ruled that no warrants were needed for police to listen in on phone conversations, because voices were transmitted outdoors, beyond the private property that was protected by the Fourth Amendment. “The language of the amendment cannot be extended and expanded to include telephone wires reaching to the whole world from the defendant’s house or office,” the majority wrote in Olmstead v. United States. “The intervening wires are not part of his house or office, any more than are the highways along which they are stretched.”

If this sounds absurd, we can hope that today’s arguments on the forfeiture of privacy in a digital age will someday sound equally ridiculous. The telephone was still a relatively new technology in 1928, as cellphones and the Internet are today, and the law had not yet adjusted to its use. It took thirty-nine years for the Supreme Court to catch up with the times and reverse Olmstead. In Katz v. United States, the Court devised a new test to determine the Fourth Amendment’s jurisdiction—“first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable,’” as Justice John Marshall Harlan II wrote in a concurring opinion. Thereafter, wiretaps required warrants.

June 4, 2013

DNA: The Tilted Supreme Court

By David K. Shipler

             Four years ago, the Supreme Court ruled 5-4 that people who proclaim their innocence have no constitutional right after their convictions to demand that DNA tests be done on the evidence in their cases, although plenty of guilty verdicts for rape and murder have been thrown out because mismatches have later been discovered. Yesterday, the Court ruled 5-4 that people arrested for “serious” crimes have no constitutional right to withhold their DNA from the police, even though the DNA is used for fishing expeditions into unsolved crimes unrelated to the reasons for the arrests.
Together, the two rulings create a tilted playing field in the criminal justice system: The individual is compelled, but the state is not. Anyone taken into custody (and presumed innocent) is compelled to give up his DNA at the outset but after conviction cannot compel prosecutors to give up the DNA found in the semen, blood, or other tissue from the crime scene.
The prosecutors’ obligations to test evidence for DNA rest in a variety of state laws, the Court decided in 2009, not in the Constitution’s guarantee of due process or the defendant’s right to summon “witnesses in his favor,” as the Sixth Amendment provides. The state laws are a mixed bag, and not always much protection; some deny convicts’ right to DNA if they confessed, although about one-quarter of the convictions reversed on the basis of DNA evidence involve false confessions, the Innocence Project reports.
The odd result is that the Court finds DNA the quintessential identifier in one ruling and a dispensable piece of evidence in the other. It is critical when it serves the state and merely optional when it serves the individual. This hypocrisy is mirrored by many prosecutors across the country who hail the precision of genetic coding to discover the criminal, yet resist its use to exonerate the wrongly convicted.
The inconsistency, the failure to bolster the system’s truth-seeking purpose, is reflected by the most colorful Justice, Antonin Scalia, who has been on both sides of the question. He joined the majority in the 2009 decision denying convicts the right to test crime-scene evidence, but in the latest case, Maryland v. King, he blustered sardonically in an entertaining dissent against the majority’s decision to uphold the Maryland law—which had been struck down by the state’s Supreme Court—requiring DNA to be taken without a warrant after an arrest. He warned of sweeping consequences, and he may be right.
Courts usually proceed incrementally, each decision building on precedent, and with DNA collection now approved for those arrested and presumed innocent, it will be a smaller step to wider use, as Scalia noted. DNA is a tool of infallible identification, after all. Why not require it for a driver’s license, for passing through airport security, for enrolling in public school? If lab techniques improve to speed up processing and reduce cost, a national database containing everyone’s DNA will someday be conceivable, and probably less constitutionally dubious than before this ruling. 
That cuts a chunk out of the Fourth Amendment’s provision for “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Taking a swab from inside a person’s cheek is a “search” under the Fourth Amendment, both sides agreed, and the majority found it reasonable. The trouble is, under judicial precedent a search normally requires individualized suspicion to a degree that depends on the circumstances—to search your home, for example, requires probable cause and a warrant signed by a judge; to frisk you without a warrant as you walk down the street requires a police officer’s “reasonable suspicion” that you are armed.
The Fourth Amendment has been chipped away as more and more suspicionless searches have been allowed by the Court, often with Scalia’s acquiescence: He voted for random drug tests of children in school choirs and other extra-curricular activities, for instance. The erosion has been helped along by the supposedly liberal Justice Stephen Breyer, who puzzled some commentators by joining with the majority on taking DNA after arrests. But nobody should be confused. Breyer has never been a big defender of the Fourth Amendment. He also endorsed suspicionless drug testing of schoolchildren, which prompted the plaintiff who lost, Lindsay Earls, to challenge him politely several years later. When Breyer visited Dartmouth, where she was then a junior, she asked whether justices ever recognized that they’d made a mistake. Yes, Breyer answered, “but not in your case.”
The Fourth Amendment was written as a bulwark, but it has proved a fragile restraint in an age of easy digital surveillance, biometric advances, and sweeping concerns about crime and terrorism. “I don’t think that there’s much left of the Fourth Amendment in criminal law,” Federal District Judge Paul L. Friedman told me several years ago—a startling statement from a respected judge who presides over drug and gun trials.
So behind this fading shield, DNA is a double-edged sword, useful to prosecutors and defendants alike—provided they can both wield it equally. In the small fraction of crimes where DNA is available, it is a marvelous tool for getting to the truth and reducing errors, for identifying the rapist and murderer, and for freeing the innocent.
But that won’t work if the DNA database contains evidence from only unsolved crimes. If we’re going to check all arrestees’ DNA, we also need a database of evidence from crimes we think we’ve solved, so that erroneous convictions can be uncovered. The law enforcement officials celebrating yesterday’s ruling would earn some integrity by pledging to establish such a resource.