Spying on Americans

By David K. Shipler

            The truly serious problem behind the controversial memo released by the House Intelligence Oversight Committee is not so much political as it is constitutional. It is the flawed process of secret intelligence warrants that enable government authorities to do end runs around the Fourth Amendment. That broader issue underlies the question of how the FBI got a warrant to eavesdrop on Carter Page, one of President Trump’s campaign aides.

            Now that Republicans have suddenly discovered their keen interest in civil liberties (albeit for political reasons), they might well revisit their unyielding support of the loosened standards for obtaining warrants that they pushed through in a panic right after 9/11. With the acquiescence of Democrats, the Patriot Act—opposed by only one senator, Russ Feingold of Wisconsin—shot holes through the sensible restrictions on monitoring Americans’ communications.

            First, a bit of history. The Framers, reacting to the British use of writs of assistance to search whole towns for contraband in colonial times, wrote the Fourth Amendment to guard against government intrusion into a citizen’s zone of privacy. Although the word “privacy” does not appear in the Constitution, it is heavily implied and is woven into numerous court opinions.

            Significantly, the Bill of Rights assumes that the people possess rights inherently, not that they are given rights by the government. The Fourth Amendment declares: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

            The terms “unreasonable,” “probable cause,” and “particularly” are among the most commonly debated in criminal cases where searches produce evidence that defense attorneys seek to suppress. Did the police officer act reasonably? Did she have probable cause to believe that such evidence of a crime would be found at a specific time and place? Was the search narrowly tailored to focus only on that purported evidence? And so on.

Surveillance: Edward Snowden's Wishful Thinking

By David K. Shipler

            To risk all by being a whistleblower, you have to believe deeply in your society’s capacity for self-correction, and Edward Snowden—after periods of doubt—is a believer, it seems. Last week he hailed “the power of an informed public” in driving Congress to make modest trims in the National Security Agency’s authority to collect data on Americans’ electronic communications. This is the way an open democracy is supposed to work: expose the wrongdoing and provoke reform.

But before we celebrate with embarrassing rhapsodies, let’s remember how far the United States has to go. The 9/11 trauma has not yet healed, and the post-traumatic security measures—some sensible, others excessive—have compromised the Fourth Amendment’s guarantee of the people’s right “to be secure in their persons, houses, papers, and effects.” Many of the extreme methods of intrusion remain intact. Some have proved worse than useless, overloading intelligence professionals with terabytes of distracting information that’s hard to search and sift for the ominous patterns of incipient terrorism.

So there are both practical and ideological reasons to abandon the excesses, yet they seem likely to stay largely in place until several conditions develop.

If earlier spasms of anxiety in American history are any guide, violations of constitutional rights in the interest of national security come to an end when, a) they are so egregious that their disclosure inflames the public; b) the perceived threat diminishes; and/or c) courts find the measures illegal or unconstitutional. Early signs of each of these can be seen, but only as slight beginnings of what may become significant trends.

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.

Targeted Killings: Justice is Relative

By David K. Shipler

            A dozen years ago, the notion that a named American overseas could be legally targeted for death on the say-so of any “informed, high-level official of the U.S. government,” as the Obama administration now argues, would have been patently absurd. The constitutional requisite for due process in which government allegations are challenged and tested and never taken for granted remained largely intact. Only in the heat of combat was the commander in chief entitled to exercise lethal power. Otherwise, death sentences were handed down from the courtroom, not from the Oval Office.

            But the country has fallen so far to the right on national security since 9/11 that anything less than autocracy seems reasonable and moderate. So it is with a new proposal, put forth by Sen. Dianne Feinstein, to involve the judiciary in the secret process of assassination. It is a mark of the age that what was once unthinkable becomes sensible. If the rule of law interferes, change the law. But if history is just, it will not judge us kindly.

Will Obama the Constitutional Lawyer Please Stand Up?

By David K. Shipler
     Published in The Nation, issue of Feb. 11, 2013
There’s something about Barack Obama that induces

Americans to imagine what they cannot see. The right

envisions a vile socialist, while many on the left picture

an inspired liberal, politically restrained in his first term

but now free to pursue his true beliefs.

No hard evidence exists to sustain either view. Obama

behaves like a centrist who leans tentatively left on certain

social programs but boldly right on military force and civil

liberties. His supporters, who have watched him duplicate and

codify some of the Bush administration’s most damaging civil

liberties violations, are now reduced to wishful thinking that an

authentic Obama will soon step forward and return the country

to the constitutional footing that was abandoned after 9/11.