Rights at Risk: The Limits of Liberty in Modern America (Vintage)
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That was not enough for the states, which demanded more specific guarantees as the price of ratification. Protections were then provided in the first ten amendments, the Bill of Rights, which spelled out liberties that government could not invade. These were not purely American inventions. The framers were reviving traditional principles in English law that they had seen abandoned by the British crown, so they drew from the Magna Carta of 1215, the 1689 English Bill of Rights, and the unwritten body of rules and precepts known as English common law.3
The end result displayed three salient characteristics. First, it was concise and broadly worded, avoiding the long-winded specifics typical of other constitutions. When there are intricate details, a right not listed may be taken as a right denied. Instead, the framers found strength in brevity, which keeps the Constitution alive by allowing each generation room to reconsider limits on governmental behavior, to reinterpret the meanings of “unreasonable searches,” “cruel and unusual punishments,” “probable cause,” and other key concepts. As Chief Justice John Marshall declared in 1819, the Constitution was “intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.”4
Second, unlike the constitutions of many other nations, ours does not bestow rights but recognizes rights that we already possess. Any doubt on this point is snuffed out by the Ninth Amendment, which states explicitly that the enumeration of rights does not “deny or disparage others retained by the people.” Key sections dictate what government may not do: “Congress shall make no law,” begins the First Amendment. “The right of the people … shall not be violated,” states the Fourth. “No person shall be held,” begins the Fifth, continuing in a string of negatives. The negatives, the proscriptions against government, are the most potent protections.
Third, all the obstacles to overweening authority are built into the brick and mortar of the Constitution so that individual liberty does not depend on the goodwill of particular officials. Madison and others, understanding the universality of human foibles, made sure that protections were lodged deeply within the system itself. They erected interlocking barriers to autocracy, one right relying on the others so that none thrives without reinforcement by the rest. As a result, critical provisions of the Bill of Rights, stitched together to get the Constitution ratified, function more coherently than their fractious political origins might have predicted. Government cannot be held accountable without the guarantee of freedom of speech and the press in the First Amendment. Justice cannot be served unless upheld by the Fifth Amendment’s requirement that no one “be deprived of life, liberty, or property, without due process of law,” which cannot be effected without the ingredients of that “due process” that are specified in the Sixth Amendment: the rights to counsel, to public and speedy trial by jury, to confront and summon witnesses.
The American experience has been a long struggle to live up to the Constitution. Periodically reversed, the effort was set back most recently after al-Qaeda hijackers flew airliners into the World Trade Center and the Pentagon on September 11, 2001. The latest deviations from constitutional principles could be counted as the sixth time in its history that the country had lost its way, detours that began in the earliest years.
First, a virtual naval war with France brought the Alien and Sedition Acts of 1798, under which foreigners could be arrested and deported without due process and citizens could be jailed for speaking and writing against the government. Then came the suppression of speech during the Civil War and Lincoln’s suspension of habeas corpus. World War I brought the 1917 Espionage Act and the 1918 Sedition Act, facilitating the prosecution of thousands of labor leaders, socialists, and anarchists who demonstrated for workers’ rights or dared to oppose entry into the war. World War II saw the internment of 120,000 ethnic Japanese, 80,000 of them American citizens, and the passage of the 1940 Smith Act to prosecute communists and fascists. The fifth departure, during the Cold War, was marked by the witch hunt of supposed communists and the secret surveillance of antiwar, civil rights, and other dissenting groups. The clandestine monitoring ran well into the 1970s.5
The spasm of fear that coursed through government after 9/11, when officials worried acutely about other imminent attacks, sent the United States well beyond the rule of law. “Don’t let this happen again,” President George W. Bush told Attorney General John Ashcroft, and so the FBI was instructed to follow every phone call and e-mailed tip, no matter how thin. In the manner of the 1919 Palmer Raids that had seized thousands of supposed anarchists after a series of bombings (one on the porch of Attorney General A. Mitchell Palmer), the 2001 Ashcroft Sweeps rounded up at least 1,182 Muslim residents of the United States. They were jailed on suspected immigration violations, sometimes brutalized by guards, and released or deported only after months of FBI and CIA investigation. None was linked to terrorism. Another 6,000 Muslims who had ignored deportation orders were targeted for arrest and removal, and male citizens from twenty-five predominantly Muslim countries were ordered to register in person at immigration offices. Those found to be out of status were immediately taken into custody. This drove many illegal aliens, Pakistanis in particular, to flee north seeking asylum in Canada.
Several end runs were made around the Constitution. Two key tools were used to dodge the Fourth Amendment, which recognizes the “right of the people to be secure” against searches unless there is probable cause to believe that evidence of a crime will be discovered. The first evasion came with little debate, when a panicked Congress passed the Patriot Act, a collection of amendments to various long-standing privacy statutes. The major revisions loosened the 1978 Foreign Intelligence Surveillance Act (FISA), which had imposed limitations on domestic surveillance after the abuses during the Cold War.
When enacted, FISA allowed a secret court to issue clandestine orders for wiretapping, bugging, and covert searches of homes and offices only for “the purpose” of intelligence gathering, usually to catch spies or to spy on foreign governments. Under the Patriot Act’s revision in 2001, “the purpose” was changed to “a significant purpose,” which diluted the intelligence prerequisite and enabled the monitoring in ordinary criminal investigations, which were supposed to be governed by the Fourth Amendment’s warrant requirements. This opened the door to secret surveillance whenever an American or other U.S. resident was suspected of contacts with a foreign power or an international terrorist organization. No probable cause of criminal activity had to be demonstrated, so fishing expeditions and extensive domestic spying were legalized, and the evidence was used in criminal prosecutions unrelated to terrorism. The Fourth Amendment, already damaged by permissive court rulings on vehicle searches and other everyday police work, began to look more like a quaint curiosity than a centerpiece of liberty.
The second tool of evasion was employed entirely in secret, for a time. Without consulting Congress or the Foreign Intelligence Surveillance Court, Bush unilaterally ordered the National Security Agency to scoop up vast amounts of electronic data, from phone conversations to e-mails, and filter them for key words and phrases to track contacts among suspected terrorists. Agency officials conceded that journalists, humanitarian workers, and others were also monitored as “eyes on the ground” for whatever they might report about the countries where they worked. Interceptions were formally permitted only where at least one party was outside the United States, but purely domestic communications were also being intercepted, according to telecommunications company employees and government officials. Despite a burst of outrage when the program’s existence was first disclosed by James Risen and Erich Lichtblau in The New York Times, Congress later legalized it by amending the law to provide general, minimal oversight by FISA judges while severely restricting their authority to rule against the data collection. Since the targets never knew who they were (except for one—a Muslim charity whose identity was accidentally disclosed), they could never go to court to challenge the basis of a surveillance order. This trans
fer of power to the executive branch has remained part of the damaging legacy of 9/11.
Bush also evaded the provisions of the Fifth and Sixth Amendments by deciding, without legislative or judicial approval, to designate two Americans and one legal foreign resident in the United States “enemy combatants” who could be held indefinitely in military custody inside the country, without lawyers, charges, or trials. They were questioned and coerced as the administration tried to block their access to the courts. As the courts began to grant their attorneys’ petitions for writs of habeas corpus, the government capitulated, transferring them one by one from military custody. Two were prosecuted in the civilian justice system, and one—a dual Saudi-American citizen—renounced his U.S. citizenship in exchange for being released to live in Saudi Arabia.6
The government attempted similar measures against terrorism suspects imprisoned at the U.S. naval base in Guantánamo Bay, Cuba, labeling them enemy combatants and then unilaterally creating military tribunals that would have heard their cases under biased conditions—by giving the prisoners minimal rights to summon witnesses, present evidence, or suppress statements that had been extracted by torture at one of the CIA’s “black sites” in various foreign countries. The scheme ran afoul of the Supreme Court, which first recognized the prisoners’ right of access to the civilian courts through habeas corpus and then required that some reliable fact-finding process determine whether they were rightfully held. The legislative branch finally acted, but again to legalize unconstitutional proceedings. The Republican-led Congress enacted into law military commissions that could try cases of foreign “enemy combatants” seized anywhere, including inside the United States. Unlike civilian courts or courts-martial, however, the military commissions could admit into evidence statements extracted by abuse and material seized in violation of the Fourth Amendment, whether done in Iraq or Indiana. The rules were tightened after Barack Obama became president, when the Democratic-led Congress amended the commissions act to exclude evidence from illegal searches or coerced interrogations, except that statements made under duress during combat or immediately after capture could be admitted.7
Enhancing prisoners’ rights to put on a defense gave the military commissions a better chance of assessing the truth of the government’s allegations. Yet they were still military commissions, which meant that they operated wholly within the executive branch, with no role by the judiciary except on appeal, when a federal court in the D.C. Circuit could reexamine a case and reverse a commission verdict. This, too, has left excessive power in executive hands.
These dramatic constitutional violations are not unique to counterterrorism. They have less extreme parallels in the ordinary workings of the criminal justice process and in the administrative detention apparatus of the immigration system. Prisoners have been tortured not only by the CIA but also by the Chicago Police Department. Confessions have been falsified not only by suspected terrorists in military hands but also by suspected murderers in civilian custody. Not only were inmates in Guantánamo Bay initially denied attorneys, but so are legal immigrants who cannot afford lawyers to defend them against deportation, and impoverished Americans in certain parts of the country are assigned inadequate counsel in state courts. The executive branch avoids trials not only for many enemy combatants but also in nearly all criminal prosecutions, where defendants are induced and threatened into guilty pleas, at both federal and state levels. Not only in counterterrorism has the executive accumulated extensive powers. Laws on sentencing, probation, and the forfeiture of property have shifted enormous authority to police and prosecutors, at the expense of the judiciary as well as the accused.
This is the second volume of a journey through America’s landscape of civil liberties. The first, The Rights of the People, concentrated on the Fourth Amendment’s guarantee against unreasonable search—the right weakened most severely by the “wars” being waged on drugs, on street crime, and on terrorism. It also surveyed the country’s historical departures from constitutional principles leading to the post-9/11 violations in pursuit of suspected terrorists.
This book now travels through adjacent territory, exploring the impact of government’s intrusive shortcuts across rights that are critical in promoting accuracy in the criminal justice system, restricting executive power over individuals, and preserving the freewheeling debate essential in a constitutional democracy. When the state trespasses on this ground, it tampers with the country’s safety in unexpected ways. While the society takes risks when rights are observed—that a suspect will not talk, that a search cannot be done, that unconstitutionally obtained evidence will be excluded from trial—other risks arise from noncompliance: A sloppy investigation jails the innocent while the guilty remains at large. The police waste precious resources on useless intelligence gathering and frivolous arrests. The criminal courts act less as impartial adjudicators than as conveyor belts from street to prison, in a system that some disillusioned participants have nicknamed McJustice.
Contrary to a popular impression that police work is impeded by individual rights—to silence, to an attorney—the discipline imposed by these liberties actually makes investigators smart, helping to solve crimes reliably by requiring professionalism and precision in collecting valid evidence. The first duty of the criminal justice system is to discover the truth, after all. This seems obvious, yet it sometimes gets forgotten in the tussles over interrogating prisoners, inducing them to confess, and compromising their right to have lawyers who will force police and prosecutors to prove the case against them. The Fifth and Sixth Amendments empower defendants to scrutinize and contest the charges. Without that fairness, actual guilt or innocence cannot be determined correctly, and punishment, if warranted, cannot be justly administered.
Curtailing the rights of the accused, then, as many security-minded Americans would like, undermines security interests by making the fact-finding mission less effective. Once the rights lose their vitality, police work grows lazy and prone to error.
The discerning reader may notice that most of the victims in these pages are black, Hispanic, Muslim, or members of other minorities—most, but not all. Many are criminals, terrorists, or misfits—many, but not all. They are often guilty—often, but not always. They get little sympathy from the larger, law-abiding citizenry. But they should, for if a retarded man is abused during police interrogation, if a poor woman is denied a competent lawyer, if a dissenting student is punished for the slogan on her T-shirt, the rights they lose are lost to everyone.
Most Americans cannot imagine themselves in such circumstances, and so they have trouble identifying with people who are there. Few in the right-wing Tea Party movement who railed against big government mentioned its intrusions on civil liberties. The invasion of constitutional rights after 9/11 merited no question from reporters during the presidential debates, and candidates generally don’t bring it up on the campaign trail. Voters seem mostly indifferent.
This is unhealthy. In the American constitutional system as a rule, rights are not defended in court until they are violated, and they are not violated until government targets someone as suspicious, dangerous, or disruptive. How the system treats those under suspicion is a moral issue and a legal question, but if those aren’t reasons enough for close attention by mainstream Americans, then self-interest ought to be. The fact is, the rights of the upstanding citizen are no different from the crook’s. When the courts interpret the Constitution and place limits on the police, the precedents accumulate into a body of case law that applies to the honorable as well as the criminal. When the courts use their power of judicial review to strike down laws that violate constitutional rights, everyone’s rights are protected. In an odd twist, therefore, the virtuous and the conformist rely on the nefarious and the radical to mount challenges when authorities step on rights that belong to them all. Ernesto A. Miranda, as a telling example, kidnapped and raped a mentally defective teenager, yet his victory in the Supreme Court over coerced interro
gation has made police departments more humane throughout the land. The Constitution binds us together. Liberty is not divisible, and neither is its violation.
The legal and personal stories addressed here are parts of that whole, woven together by a theme of long-standing concern in American history: government’s authority to infiltrate personal liberty. A common denominator in containing state power is the freedom to seek and speak the truth, both in the courtroom and in the public square, where the din of ideas keeps society open, supple, and responsive. There is no neat division between robust speech and robust criminal defense, for the Bill of Rights safeguards adversarial argument both in matters of high policy and in the everyday process of criminal justice. The Constitution protects both the right to silence and the right to speech.
This book begins at the right to silence and moves along a continuum to freedom of speech. A keystone in the integrity of criminal procedure, the right against self-incrimination, holds that no person “shall be compelled in any criminal case to be a witness against himself,” in the words of the Fifth Amendment. As in every legal right, the origin of this one lies in its violation, in this case an ancient history scarred by torture. The machinery of torment provoked the guarantee in the Magna Carta of 1215: “In future, no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.” The pledge has not always been fulfilled.