The Rights of the People
Page 23
“Notwithstanding nightmarish images of out-of-control flatware, livestock run amok, and colliding tubas disturbing the peace and quiet of Tecumseh,” she wrote in dissent, “the great majority of students the School District seeks to test in truth are engaged in activities that are not safety sensitive to an unusual degree.” She found the testing program “capricious, even perverse” in targeting only those active in school organizations—just the students least likely to use narcotics.
Principals and police took great license amid the antidrug frenzy. In the South Carolina bedroom town of Goose Creek, officials apparently thought that the students most likely to use drugs were black, because African-Americans made up two-thirds of the nearly one hundred fifty who were searched roughly by police with drawn guns during a raid at Stratford High School. The cops had been invited by the principal, George C. McCrackin, who’d had a tip that drugs were being sold early each morning after the first buses arrived. So at 6:45 a.m. on November 5, 2003, police officers hid in stairwells and closets and on McCrackin’s signal exploded into the hallways, pistols in hand, a drug-sniffing dog on a leash. Watching a video, you might have thought that a SWAT team was assaulting a crack house loaded with weapons. Cops were waving guns around and yelling, “Get down! Hands behind your head!” They forced teenagers to kneel facing walls, frisked them, and rummaged through whichever backpacks caught the dog’s interest.
But no drugs were found. Settling a lawsuit, the city, the police department, and the school district paid $1.6 million and, more significantly, signed a consent decree barring police action in the school without warrants, probable cause in an emergency, or voluntary consent by those to be searched.59
Again the following year, a zealous principal named Gordon Sampson in rural Chestertown, Maryland, requested a police team, which invaded the high school and swept a dozen classrooms with a canine unit. The dogs erroneously alerted on eighteen book bags, which were searched and their owners patted down. Two teenage girls were pulled aside and put into a room where a school official watched while a female deputy, Marcellene Beck, ordered Lacey Fernwalt, sixteen, to remove her pants, and then checked inside the girl’s bra. Heather Gore, fifteen, was told to take off her skirt; Beck pulled up her tank top to expose her breasts, asked Gore to spread her legs, and tugged at her underpants. “I was crying and hyperventilating,” the girl told a Washington Post reporter. “I sat there in disbelief.” No drugs were discovered, and the girls won $285,000 and apologies from the school system and the Kent County Sheriff’s Department.60
Had the case not been settled before trial, however, the courts might have found the searches constitutional, given the probable cause signaled by the dogs. Judges had a mixed record on protecting schoolchildren from humiliating examinations of their bodies, and had left students—along with parolees and welfare recipients—with their Fourth Amendment rights seriously diluted.
So confused and unclear was the case law on strip searches in schools that the Supreme Court in 2009 felt compelled to grant “qualified immunity” to an assistant principal, a secretary, and a school nurse in Safford, Arizona, who had ordered and carried out invasive inspections beneath the underwear of two young girls. One of them, thirteen-year-old Savana Redding, sued. She won the constitutional challenge but lost the right to damages.
Strict school policy in Safford banned all medicines, even those sold over the counter, without authorization from parents or doctors. So when a girl was found with prescription-strength tablets of the anti-inflammatory drug ibuprofen, she was called in, searched beneath her bra and panties, and asked where she’d obtained the pills. She named Redding, who denied it but consented to a superficial pat-down and search of her backpack, which turned up nothing. With no more “evidence” than the other girl’s claim, and with no indication that pills might be hidden beneath Redding’s clothes, the assistant principal, Kerry Wilson, sent her off with instructions to the school nurse and a female counselor to perform a more intrusive search. They told her to strip to her underwear, made her pull out her bra and shake it, and do the same with the elastic on her panties while spreading her legs, “exposing her breasts and pelvic area to some degree,” as the justices stated. No pills were found.
The Court, ruling that the search violated the Fourth Amendment, set a low standard for school searches—“a moderate chance of finding evidence of wrongdoing”—but decided that “here, the content of the suspicion failed to match the degree of intrusion.” There was “reason to question the clarity with which the [student’s] right was established” before the incident, however, so the justices granted “qualified immunity” to the school employees, since government officials cannot be held liable unless they act outside well-defined legal limits.61
After the humiliating search, Savana Redding said she developed stomach ulcers and a distrustful wariness. She couldn’t bear to return to school, “never wanted to see the secretary or the nurse ever again,” and studied at home for months until she transferred elsewhere. Studying at Eastern Arizona College to become a counselor, she told a New York Times reporter that if she were ever ordered to strip-search a student, she would refuse. “Why would I want to do that to a little girl and ruin her life like that?”62
Even while imposing restraints on government here and there, the Supreme Court has continued to narrow the scope of the Fourth Amendment. Legislatures and executive branches across the country have carved out exceptions by targeting citizens at the margins of society, those with whom the majority couldn’t identify. In 2006, the Court upheld, six to three, a California law permitting warrantless searches without cause of parolees, who were required to sign away their rights as a condition of completing their sentences outside of prison.63
In 2007, it denied a writ of certiorari—an order accepting a case on appeal—and let stand a practice in San Diego of doing unannounced, warrantless searches of welfare recipients’ homes by criminal investigators looking for signs of fraud: men’s underwear in drawers, for example, as evidence that a supposedly single mother actually had a man in the house. Consent for the search was required from the recipient, but a refusal could provoke a cutoff in payments.
Seven dissenting judges in the Ninth Circuit called this “an assault on the poor” and declared: “There can be no true consent here. Applicants are not given notice of when the visit will occur; they are not informed of their right to withhold consent; they are told the visit is mandatory; and they are aware of the severe consequences of refusing the search. San Diego’s program requires destitute, often disabled, persons and their families to forfeit all rights to privacy to qualify for welfare.” The dissenters noted that farmers receiving subsidies were not subjected to such invasions.64
By refusing to hear the appeal, the Supreme Court was allowing Fourth Amendment protection to be scaled back in a serious way. In 1971, in Wyman v. James, it had ruled that social workers could do warrantless home searches, but the consequences were limited to a termination of benefits.65 Now the consequences could be criminal charges as the search authority was extended to the district attorney’s office—and not just for welfare fraud, because if investigators happened to see evidence of other crime “in plain view,” such as drugs, for example, they could prosecute. As The New York Times editorialized, “It would be a mistake … to take consolation in the fact that only poor people’s privacy rights were at stake. When the government is allowed to show up unannounced without a warrant and search people’s homes, it is bad news for all of us.”66
And this bad news was what we could see in the open sunlight. There were deep shadows, too.
CHAPTER FIVE
Patriotic Acts
Do I want the government breaking down my doors to interrogate me? Of course not. Something in the middle, however, is not outrageous for our protection. I wouldn’t mind if they peeked into my life as long as I don’t notice them there.
—Lauren Olson, student at Stetson University
SNEAK AND PEEK<
br />
SOMEBODY HAD BEEN in the house again. The top bolt was locked, something the Mayfields never bothered to do. A fairly new carpet, freshly vacuumed, was indented with footprints shaped like shoes, which the Muslim family didn’t wear inside. In the teenage son’s bedroom, the louvers of a blind overlooking the driveway were cracked open at a height above the boy’s eye level, as if a tall intruder had peered out to see whether anyone was coming.
Mona Mayfield called her husband at his law office. “Brandon, I’m at the house,” he remembered her saying. “The thing’s bolted; I didn’t leave it bolted.” He questioned her: Was she certain? She passed the phone to their son Shane, with instructions: “Tell your dad this is bolted.” He did, and Brandon Mayfield said, “OK, it’s not burglars.”
He had worried about burglars, even arsonists, since there had been some fires set in the neighborhood. More than once during that spring of 2004, the unused bolt above the main lock had been thrown. Digital clocks and VCR lights had been blinking, as if the power had been turned off and then on again. A creepy feeling had led him to call the police, who offered to send someone. But since nothing had been stolen except the family’s sense of security, he declined and waited to see if it happened again.
It did. Telltale signs of invasion appeared weekly, on a Tuesday or a Thursday. Computer hard drives in his law office crashed. As he walked and drove, he was chilled by the uneasy sensation of being watched and followed. Occasionally he noticed someone tailing him from his office. He began to look for unfamiliar vehicles parked on his street.
Then one day, Shane, age fifteen, stayed home sick alone after Mona and Brandon and the two youngest children had left in a van and a car. “It might have appeared to anybody doing surveillance that everybody had gone,” Brandon surmised. “They probably assumed that nobody was home that day, and it might have been pretty quiet.”
Shane slept late in his room above the garage, then got up and went to the kitchen to eat. Suddenly, through a window, he saw a man walking deliberately toward the house. He heard noises. “He was scared that it could be unsavory characters coming through the door,” Brandon said. There seemed to be more than one. “They didn’t knock. They immediately went for the door, they were messing around with the door. He was getting nervous. They were not knocking and announcing, they were trying to break in. He went upstairs to my daughter’s room, and he took it a step further and went inside the attic. He was hiding in a crawl space in the attic, just there, scared.” With his cell phone, Shane tried to call his parents but couldn’t reach them, so he phoned his aunt half a continent away in Kansas City.
Then, just as suddenly, Brandon reported, “Whoever it was must have realized he was there. We speculate they were monitoring calls. They left.” And they left behind a boy who “was pretty shaken up,” his father said.
The Mayfields were being subjected to secret searches, clumsily executed but clandestinely approved by an unnamed judge based on a confidential affidavit submitted by the FBI citing classified information—erroneous, it turned out—that Brandon Mayfield was an agent of a foreign power involved in terrorism. It was based on a fingerprint, from train bombings in Madrid, that the vaunted FBI laboratory had misidentified as his.
If all had gone as the FBI had planned, he would never have learned that his phones were being tapped; that his intimate and professional conversations at home and work were monitored with hidden microphones; that his private papers and his clients’ privileged files had been copied; and that he and his family were followed to work, to school, and to the mosque where they worshipped. He would not have known that agents copied three computer hard drives and one external drive, took ten DNA samples on cotton swabs, collected six cigarette butts to compare the DNA with that found in a van used by the terrorists, and took 335 digital photographs of his house and office.1 This occurred legally in the United States—in a suburb of Portland, Oregon.
• • •
The law authorizing such secret snooping, the Foreign Intelligence Surveillance Act (FISA),2 was passed in 1978 as a check on an FBI that had run rampant in the 1960s and 1970s by monitoring not only foreign spies but domestic antiwar and civil rights groups through its COINTEL program. When congressional hearings exposed the extent of abuse, in which J. Edgar Hoover’s agency had bugged and wiretapped Martin Luther King, Jr., and other American dissidents, the backlash took a creative turn. The most doctrinaire civil liberties advocates rejected any wiretapping as equivalent to a general search that violated the Fourth Amendment’s particularity requirement, because it collected all information passed on a particular phone line, not just that related to the crime under investigation. Pragmatic liberals, however, led by Senator Edward Kennedy, recognized that “if you opposed a statute saying you had to have a warrant, you’d be left with warrantless wiretapping,” recalled Jerry Berman, who was chief legislative counsel of the ACLU. Believing that the FBI had to be reined in but that clandestine methods were necessary to counterespionage, Congress then enacted FISA to regulate the surveillance by constructing a layer of judicial oversight far less demanding than for traditional criminal warrants.
The result, a parallel system of shadow warrants, functioned appropriately when limited to intelligence gathering in the dusky world of spies, where a Soviet agent would not be prosecuted but simply expelled from the country. “It was a remarkable experiment, saying we can legally regulate the way intelligence is gathered,” noted Stewart Baker, general counsel for the National Security Agency and later an assistant secretary of Homeland Security. “There was never a country that tried this.”
But the experiment began to fail during the Clinton and Bush administrations. Initially limited to electronic surveillance, the law was expanded in 1994 to permit physical searches,3 and has since spread beyond the bounds of intelligence into ordinary criminal investigations, disrupting the equilibrium calibrated so carefully by the Bill of Rights.
The differences between FISA orders and criminal search warrants are monumental. While the target of an ordinary warrant is notified of the search, at least eventually, the target of a FISA warrant has no such right to know.4 The police affidavit supporting an ordinary warrant is later made public so that it can be challenged, but the affidavit for a FISA warrant is not. Nor is the name of the judge who signs the FISA order, one of eleven federal judges appointed to the Foreign Intelligence Surveillance Court by the chief justice of the Supreme Court to consider such applications in secret. The specifics of the FISA order may remain sealed, and therefore unchallengeable, even if they become the basis of an ordinary search or wiretap warrant under Title III of the U.S. Code. The law permits judges to keep the rationale for the FISA order secret from the defense in a suppression hearing unless they find disclosure essential, which they virtually never do.
If FISA material is used as evidence, it must be turned over to the defense, but before the defendant can see it, it must be declassified. If the government wants it to remain classified, the defense attorney and any translator have to get security clearances to pore through it, and the defendants themselves may never be allowed to know its contents.5
A heavier handicap is imposed if the material collected under FISA isn’t used in trial. Then, it never has to be revealed to the accused and their attorneys unless it contains exculpatory evidence—and the government is empowered to decide unilaterally what’s exculpatory. This burdens the fact-finding process. The e-mails, Web searches, conversations, and documents collected through FISA may have been used to focus and further the investigation, but the defense will probably never know of their existence. When a body of evidence is rendered invisible, there is no way to put statements in context, rebut assumptions, or contest fragmented facts that shape the government’s theory of the crime.
Secrecy invariably permits abuse, as documented by the Foreign Intelligence Surveillance Court’s disclosure that in 2000 “the government came forward to confess error in some 75 FISA applications related to major te
rrorist attacks directed against the United States. The errors related to misstatements and omissions of material facts,” the court said. As a result, “The Court decided not to accept inaccurate affidavits from FBI agents whether or not intentionally false. One FBI agent was barred from appearing before the Court as a FISA affiant.”6 But if the executive branch itself had not revealed these “errors” to the court, nobody would have known, because FISA permits no adversary proceeding.
In other ways, too, the looser standards depart from the Fourth Amendment’s language of protection. While an ordinary warrant is supposed to meet the requirement for particularity (“particularly describing the place to be searched, and the persons or things to be seized”), a FISA warrant does not have to specify the “things to be seized” and thereby becomes a fishing expedition. The requirement to name places or individuals in the FISA application was eliminated, by amendments in 2008, when a target overseas is not a “United States person,” even where one end of the communication is inside the United States.7
Nor does there have to be a crime to justify the snooping. As outlined in the Justice Department’s report on the Mayfield case, “To obtain authority for FISA surveillance of a particular telephone line, the government must show probable cause to believe that the target is an agent of a foreign power and that the target uses that telephone line to communicate.8 In contrast, in a criminal case the government must show that there is probable cause to believe that an individual is committing, has committed, or is about to commit a particular criminal offense specified by statute, and that particular communications about that offense will be obtained through the interception.”9