34. Alexander Hamilton, Federalist Paper 8.
35. The Alien Registration Act, which also required all noncitizens to register with the government. 54 Stat. 670, 671, title I, §§ 2–3 (June 28, 1940), current version at 18 U.S.C. § 2385.
36. Following the death of the judge, the government dismissed the charges against the fascists, four months after the end of the war. Stone, Perilous Times, pp. 255, 273–75.
37. Ibid., p. 280.
38. Ibid., p. 278.
39. Cole, Enemy Aliens, p. 93.
40. The vote was 6–3 in Korematsu v. United States, 323 U.S. 214 (1944). The Court also upheld a curfew imposed on Americans of Japanese ancestry in Hirabayashi v. United States, 320 U.S. 81 (1943) and Yasui v. United States, 320 U.S. 115 (1943). It delayed a decision in Ex parte Endo, 323 U.S. 283 (1944), releasing a Japanese-American woman whose brother was serving in the U.S. Army, until a day after the government announced that all the detainees would be released. See also Stone, Perilous Times, pp. 297–303.
41. Cole, Enemy Aliens, pp. 129, 141.
42. Ibid., pp. 148–49.
43. The material in this section is drawn mostly from Intelligence Activities and the Rights of Americans, Book II. Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, United States Senate (“Church committee”), Apr. 26, 1976, pp. 5–15, 50, and from original documents linked to the report.
44. Jane Mayer, The Dark Side (New York: Doubleday, 2008), pp. 113–15. Jack Goldsmith, The Terror Presidency (New York: Norton, 2007), pp. 36–37.
45. The state secrets argument, aimed at thwarting a suit by four Brooklyn residents who claimed that their international phone calls were illegally intercepted, was made after Attorney General Eric Holder announced tighter rules for invoking the protection, which he claimed would not be used to mask government wrongdoing or embarrassment. Michael Isikoff, “Obama Secrecy Watch II: A State Secrets Affidavit Straight from the Bush Era,” Newsweek, Declassified Blog, Nov. 2, 2009, at http://blog.newsweek.com/blogs/declassified/archive/2009/
11/02/obama-secrecy-watch-ii-a-state-secrets-affidavit-straight-from-the-bush-era.aspx. The case was Shubert v. Obama, formerly Shubert v. Bush, C 07-0693 (DC No. D. Ca.).
46. Mayer, The Dark Side, pp. 146, 180.
47. Cole, Enemy Aliens, p. 25.
48. Eric Lichtblau, “Thousands from Muslim Nations Were Investigated Before ’04 Election, Data Show,” New York Times, Oct. 31, 2008, p. A17, based on internal reports obtained by the National Litigation Project at Yale Law School and the American-Arab Anti-Discrimination Committee.
49. Eric Schmitt and Mark Mazzetti, “Secret Order Lets U.S. Raid Al Qaeda in Many Countries,” New York Times, Nov. 10, 2008, p. A1.
50. Mayer, The Dark Side, p. 110.
51. Ibid., pp. 105, 151, 152, 165, 168, 173, 274, 276, 309.
52. Obama ordered that all interrogations, by the CIA and other agencies, be performed in accordance with the Army Field Manual, which barred abuse and torture. But the order could be rescinded. Democratic Senator Dianne Feinstein, chair of the Senate Intelligence Committee, launched an investigation into torture, but most of its findings remained classified. A limited declassified document was released in Apr. 2009. “Release of Declassified Narrative Describing the Dept. of Justice Office of Legal Counsel’s Opinions on the CIA’s Detention and Interrogation Program,” at http://intelligence.senate.gov/pdfs/olcopinion.pdf.
53. “Re: Standards for Conduct of Interrogation under 18 U.S.C. §§ 2340–2340A,” Memorandum for Alberto R. Gonzales, Office of the Assistant Attorney General, Aug. 1, 2002, pp. 1, 36–37. After its contents became public, it was rescinded by the White House, but its stricter replacement guidelines were secretly loosened by a subsequent memo that effectively permitted the abuse to continue. See the detailed account in Mayer, The Dark Side.
54. John C. Yoo and Robert J. Delahunty, “Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States,” Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel, Dept. of Defense, Oct. 23, 2001. The memo finds no obstacle in the Posse Comitatus Act, 18 U.S.C. § 1385 (1994), which prohibits the use of the military for law enforcement purposes inside the country. The memo argues that counterterrorism could qualify as a military function rather than law enforcement.
55. Yoo and Bybee were accused of “professional misconduct” by the Obama Justice Department’s Office of Professional Responsibility, which might have led to disbarment proceedings, but the charge was downgraded by Associate Deputy Attorney General David Margolis, a career official who dealt with disciplinary matters. He called their legal reasoning “flawed,” but not punishable. “While I have declined to adopt O.P.R.’s findings of misconduct,” Margolis wrote, “I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, view of executive power while speaking for an institutional client.” Eric Lichtblau and Scott Shane, “Report Faults 2 Authors of Bush Terror Memos,” New York Times, Feb. 19, 2010. David Margolis, Memorandum for the Attorney General, the Deputy Attorney General, Jan. 5, 2010.
56. Emil Constantinescu, address to the World Justice Forum, Vienna, July 3, 2008.
57. “The Rule of Law Index,” World Justice Project, World Justice Forum, July 2–5, 2008, Vienna, p. 6.
58. David Rothkopf, Superclass (New York: Farrar, Straus and Giroux, 2008), p. 193.
59. Nicholas D. Kristof, “117 Deaths Each Day,” New York Times, March 13, 2004, p. 17. Scott Shane, “A Year of Terror Plots: Through a Second Prism,” New York Times, Jan. 13, 2010, p. A1.
60. This holds whether terrorism defendants are held inside or outside the criminal justice system. From Sept. 12, 2001, to Dec. 31, 2007, only 28 percent of criminal terrorism convictions came at trial; the rest were guilty pleas. Just 9 percent of those charged were acquitted or had charges dismissed. Richard B. Zabel and James J. Benjamin, Jr., In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts, Human Rights First, May 2008, p. 26.
CHAPTER 2: ANOTHER COUNTRY
1. Terry v. Ohio, 392 U.S. 1 (1968).
2. In Terry, Chief Justice Earl Warren used the term “reasonable grounds,” while “reasonable suspicion” was used by Justice William O. Douglas in his dissent. Writing for the Court in later cases, including United States v. Sokolow, 490 U.S. 1 (1989) and Illinois v. Wardlow, 528 U.S. 119 (2000), Chief Justice William H. Rehnquist used “reasonable suspicion,” which has become the accepted phrase. If there is reasonable suspicion that someone has committed or is about to commit a crime, a stop is permitted. Something more is required for a frisk: reasonable suspicion that he is armed.
3. United States v. Sokolow, 490 U.S. 1 (1989).
4. Illinois v. Gates, 462 U.S. 213 (1983).
5. United States v. Sokolow, 490 U.S. 1 (1989).
6. Richard A. Hobson and Charles E. Collins, Jr., Identifying Characteristics of the Armed Gunman, Metropolitan (D.C.) Police Department, Patrol Services Division, Apr. 3, 1995.
7. United States v. Askew, 04-3092, D.C. Circuit, Apr. 6, 2007, reversed by United States v. Askew,, 04-3092, D.C. Circuit en banc, June 20, 2008. Kavanaugh and Sentelle were two of an original panel of three. To justify their novel interpretation, Kavanaugh and Sentelle seized on an aside in Hayes v. Florida, 470 U.S. 811 (1985), although it found for the defendant and involved no Terry stop. Without an arrest warrant, police went to the home of a suspect in a burglary and rape to take him to be fingerprinted at the station house. When he refused to go, and an officer offered the alternative of arrest, the suspect accompanied them, was fingerprinted, and was then arrested. The Court found that without probable cause for the investigative detention, the fingerprinting violated the Fourth Amendment. The majority hedged by adding that “none of the foregoing implies that a brief detention in
the field for the purpose of fingerprinting, where there is only reasonable suspicion not amounting to probable cause, is necessarily impermissible under the Fourth Amendment.” Although the Court was leaving the question open, Kavanaugh and Sentelle jumped to this conclusion: “The Hayes Court endorsed the investigative step of on-the-scene fingerprinting.” The D.C. Circuit then decided to hear the appeal en banc, which means that the entire membership of the court, beyond the original three-member panel, considers the case. Interestingly, the majority of the D.C. Circuit that overruled Kavanaugh and Sentelle included a strong conservative, Janice Rogers Brown, who has followed a libertarian streak—rather than precedent—in restricting police searches.
8. Chimel v. California, 395 U.S. 752 (1969). The opinion overruled Harris v. United States, 331 U.S. 145 (1947) and United States v. Rabinowitz, 339 U.S. 56 (1950), which permitted the police to search an entire apartment and an entire office without a warrant but incident to an arrest. Chimel imposed the restriction that only what police saw “in plain view” could be seized without a search warrant. See also O’Brien, Constitutional Law and Politics, Vol. 2, pp. 839–40.
9. Minnesota v. Dickerson, 508 U.S. 366 (1993) established the “plain feel” exception only if the object is immediately identified during a pat-down as “nonthreatening contraband.” The Court suppressed the evidence in this case, however, because the officer, having determined that there was no weapon in Dickerson’s jacket, did not identify a lump as cocaine until he had squeezed and manipulated it, which the Court decided had taken the search beyond the check for a gun that justified the Terry stop. See also Michigan v. Long, 463 U.S. 1032, at 1049 (1983).
10. Illinois v. Wardlow, 528 U.S. 119 (2000).
11. As formulated in United States v. Cortez, 449 U.S. 411 (1981) and then in United States v. Sokolow, 490 U.S. 1, 109 (1989).
12. District of Columbia Official Code, DC ST § 50-2207.02.
13. United States v. Richard Spinner, Jr., 05-3160 (D.C. Cir. 2007).
14. FBI Uniform Crime Reports: Law Enforcement Officers Killed and Assaulted, 2009, Table 19, http://www.fbi.gov/ucr/killed/2009/data/table_19.html.
15. Concurring opinion in Minnesota v. Dickerson, 508 U.S. 366 (1993).
16. District of Columbia v. Heller, 07-290 (2008). Washington, D.C., had the strictest gun law in the country, a virtual ban on private handguns everywhere. The statute was challenged by an auxiliary policeman who guarded the federal courthouse and wanted a license to keep a gun at home. The Court also struck down the D.C. law requiring any licensed gun at home to be disassembled or disabled with a trigger lock, reasoning that such restrictions would make the weapon unusable for self-defense. The ruling applied the Second Amendment only to the federal government, which essentially governs D.C., and did not yet incorporate state law into its protection. That incorporation, citing the due-process clause of the Fourteenth Amendment, came in a 2010 Supreme Court ruling that struck down laws in Chicago and Oak Park, Illinois, against keeping handguns at home. The opinion repeated the qualifiers used in Heller, noting that the right to gun ownership in the home did not erase local governments’ powers to restrict the sale and possession of firearms to certain people or in certain locations. McDonald et al v. City of Chicago, Illinois, et al, 08-1521 (2010). Majority opinion by Samuel Alito. In Congress, conservative Democrats and Republicans proposed eliminating most gun control in the District as a condition of awarding D.C. a voting Representative in the House, a Faustian bargain vigorously opposed by D.C. officials and liberals in Congress in the spring of 2010. For the time being, D.C. kept its gun control and lost its chance for voting representation in the House.
17. Morning Edition, National Public Radio, Oct. 21, 2007.
18. Based on interviews with 63,943 U.S. residents. Of those stopped for traffic-light or stop-sign violations, 56.8 percent of blacks and 77 percent of whites thought the stop was justified, and for a vehicle defect, the legitimacy rate was 66.5 percent of blacks and 90.5 percent of whites. The percentage of searches done with the consent of the driver was 57.6. “Contacts Between Police and the Public, 2005,” Bureau of Justice Statistics, Apr. 2007, http://www.ojp.usdoj.gov/bjs/pub/pdf/cpp05.pdf.
19. Carroll v. United States, 267 U.S. 132 (1925), opinion by Chief Justice William Howard Taft. In Chambers v. Maroney, 399 U.S. 42 (1970), the Court extended the warrantless search to cars that were impounded, reasoning that if the police could search immediately without a warrant, they could also do so once they got the vehicle to a station house.
20. Alabama v. White, 496 U.S. 325 (1990).
21. Delaware v. Prouse, 440 U.S. 648 (1979).
22. See Whren v. United States, 517 U.S. 806 (1996), decided unanimously, for a comprehensive discussion of this line of cases.
23. Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990).
24. United States v. Martinez-Fuerte, 428 U.S. 543 (1976).
25. Delaware v. Prouse, 440 U.S. 648 (1979). The Court excluded marijuana as evidence from a vehicle chosen randomly for a stop, but White, for the majority, went out of his way to suggest roadblocks as an alternative, stating, “At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers’ authority, and he is much less likely to be frightened or annoyed by the intrusion.” This brought a sardonic dissent from Rehnquist, who thought random stops were acceptable: “Because motorists, apparently like sheep, are much less likely to be ‘frightened’ or ‘annoyed’ when stopped en masse, a highway patrolman needs neither probable cause nor articulable suspicion to stop all motorists on a particular thoroughfare, but he cannot without articulable suspicion stop less than all motorists. The Court thus elevates the adage ‘misery loves company’ to a novel role in Fourth Amendment jurisprudence.… The whole point of enforcing motor vehicle safety regulations is to remove from the road the unlicensed driver before he demonstrates why he is unlicensed. The Court would apparently prefer that the State check licenses and vehicle registrations as the wreckage is being towed away.… The Court does not say that these interests can never be infringed by the State, just that the State must infringe them en masse rather than citizen by citizen. To comply with the Fourth Amendment, the State need only subject all citizens to the same ‘anxiety’ and ‘inconvenien[ce]’ to which it now subjects only a few.”
26. Indianapolis v. Edmond, 531 U.S. 32 (2000), with a vigorous dissent by Rehnquist, Thomas, and Scalia. Writing for the majority, O’Connor referred to Sitz, Martinez-Fuerte, and Prouse, which authorized checkpoints: “In none of these cases, however, did we indicate approval of a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.”
27. United States v. Haley, 669 F. 2d 201, 203–4 (1982). At the time, circuit courts were in disagreement about the question. An earlier Supreme Court decision, in Johnson v. United States, 333 U.S. 10, 13 (1948), had decided that “odors alone do not authorize a search without warrant.”
28. Illinois v. Caballes, 543 U.S. 405 (2005). The D.C. Circuit had come to a different conclusion where police, discovering stolen license plates on a car, searched the trunk using the rationale that original plates might be there. They found a pistol but no tags. By two to one, a panel ruled the search without probable cause and therefore unconstitutional. The lone dissenter, who upheld the search, was John G. Roberts, Jr., soon to become Chief Justice. United States v. Jackson, 02cr00328-01 (D.C. Cir. 2005).
29. United States v. Chadwick, 433 U.S. 1 (1977).
30. Arkansas v. Sanders, 442 U.S. 753 (1979). On a tip, police followed a taxi carrying Lonnie Sanders from the Little Rock Airport, stopped the taxi, and opened his suitcase, which contained marijuana. Blackmun and Rehnquist dissented.
31. Robbins v. California, 453 U.S. 420 (1981). Police pulled over a car being driven erratically, and smelled marijuana, which gave them probable cause to search the passenger compartment. But then they crossed the line by opening two garbage bags. Even though
they had probable cause to search them, the Court ruled, they could not do so without a warrant.
32. United States v. Ross, 456 U.S. 798 (1982).
33. United States v. Johns, 469 U.S. 478 (1985).
34. California v. Acevedo, 500 U.S. 565 (1991). After a Drug Enforcement agent in Hawaii intercepted a Federal Express package containing marijuana and addressed to a resident of Santa Ana, California, he arranged to have it sent to a police officer in Santa Ana, who took it to the FedEx office and waited for the addressee to pick it up. Officers followed the man home. When he emerged from his apartment to drop the box into the trash, an officer went to get a search warrant. Twenty minutes later, other officers saw a second man leave the apartment with a knapsack; they stopped his car, searched the knapsack, and found marijuana. Twenty-five minutes after that, Acevedo arrived, spent ten minutes in the apartment, then emerged with a paper bag about the size of one of the packages sent from Hawaii. The lead officer had not yet returned with the warrant, so when Acevedo put the bag in the trunk and started to drive away, he was stopped.
35. The Court gave lip service to protecting privacy, writing, “The line between probable cause to search a vehicle and probable cause to search a package in that vehicle is not always clear.… At the moment when officers stop an automobile, it may be less than clear whether they suspect with a high degree of certainty that the vehicle contains drugs in a bag or simply contains drugs. If the police know that they may open a bag only if they are actually searching the entire car, they may search more extensively than they otherwise would in order to establish the general probable cause required by Ross, [which] may enable the police to broaden their power to make warrantless searches and disserve privacy interests.… We cannot see the benefit of a rule that requires law enforcement officers to conduct a more intrusive search in order to justify a less intrusive one.”
36. California v. Acevedo, 500 U.S. 565 (1991), dissent.
The Rights of the People Page 44