Different River

”You can never step in the same river twice.” –Heraclitus

December 20, 2005

Carl Levin, Strict Constructionist, and the Exclusionary Rule

Last week, the big news story was that shortly after the attacks of 9/11/01, the President “secretly authorized” the National Security Agency to eavesdrop on international phone calls and e-mail messages in which one of the participants was in the United States — without the court-approved warrants “ordinarily required for domestic spying”; that is, for eavesdrop on communications conducted wholly within the United States.*

The president explained the policy at a press conference, disputing the fact that the order was “secret,” at least from Congress:

So, consistent with U.S. law and the Constitution, I authorized the interception of international communications of people with known links to al Qaeda and related terrorist organizations. This program is carefully reviewed approximately every 45 days to ensure it is being used properly. Leaders in the United States Congress have been briefed more than a dozen times on this program. And it has been effective in disrupting the enemy, while safeguarding our civil liberties.

U.S. Senator Carl Levin (D-MI) had something interesting to say about this:

He cites the law which authorized the use of force in Iraq [sic -- he must have meant the post-9/11/01 use-of-force resolution which did not mention Iraq specifically --DR] as the legal basis for his wiretapping and surveillance program. What he does not do is tell us where in that resolution authorizing force in Iraq does he see that authority. We can’t find any. Where in the Constitution — which not only has an Article II creating an executive branch but has a Bill of Rights protecting the privacy of Americans — where does he find in the Constitution the authority to tap the wires and the phones of American citizens without any court oversight?

I am tempted to answer: “Right after the sentence in the Constitution that guarantees the right to an abortion.” After all, Carl Levin is a well-known supporter of abortion as a Constitutional right. I’d love to hear him admit that there is no more explicit mention of abortion in the Constitution than there is of wiretapping suspected terrorists — a position that the so-called “strict constructionist” school of jurisprudence has been making for a long time.

Ah, but you say — no one ever claimed the right to an abortion was explicitly mentioned in the Constitution. Even the Supreme Court Justice Harry Blackmun, writing the majority opinion in Roe vs. Wade, explicitly admits that, “The Constitution does not explicitly mention any right of privacy,” let alone abortion. Instead, he finds the right to an abortion by reference to the “penumbras of the Bill of Rights,” or as Justice William Douglass put it in Griswold vs. Connecticut, “penumbras, formed by emanations from those guarantees that help give them life and substance.”

So, there you have it, Senator Levin: The president’s authority to wiretap suspected al-Qaeda operatives in the United States comes from the “penumbras, formed by emanations” from the use-of-force resolution passed on September 14, 2001.

(UPDATE, 12/28/05: Alex Tabarrok makes a similar point.)

Seriously, though: My real question is why anyone is surprised by this. A prominent former FBI agent said when he was in the FBI (mid-1960s), it was standard practice for the FBI to conduct warrantless searches. The Clinton Administration’s Project Echelon intercepted so much it’s been called an “information vacuum cleaner.”

Why is all this legal? Because the Supreme Court said it’s legal!

And, the Supreme Court said it’s legal in a decision that has been the very foundation of the liberal view of due process. See, in
Weeks vs. U.S. (1914)
(applied to the states in Mapp vs. Ohio (1961)), the Supreme Court decided that the “penalty” for an illegal search was the that evidence obtained through the illegal search could not be used against a defendant in court. This is called the “exclusionary rule.” As California Supreme Court Justice Stanley Mosk noted:

“The two-fold purpose of the exclusionary rule is to deter law enforcement officers from engaging in unconstitutional searches and seizures by removing their incentive to do so, and to relieve the courts from being compelled to participate in such illegal conduct.

There are two problems with this, and serious problem, and a really serious problem: First, freeing a(n otherwise) guilty person because of an illegal search does not really penalize law enforcement officers; it penalizes the general population, who are now subject to suffer future crimes by that individual, and a reduced deterrent to crime for other individuals; it also penalized the victim, who is denied justice. Law enforcement officers are not, generally speaking, “paid by the conviction”; the suffer no more than any other citizen when a criminal goes free. Thus, there is no reason to expect that the exclusionary rule actually deters law enforcement officers from conducting illegal searches at all. The exclusionary rule thus fails to achieve the purpose for which it is intended.

More seriously, by in effect limiting the “penalty” for an illegal search to the exclusion of evidence from a criminal trial, the exclusionary rule effectively gives law enforcement a free hand to conduct as many illegal searches and wiretaps as they want, so long as they do not use the evidence so obtained in a criminal trial. This is why J. Edgar Hoover’s FBI could conduct illegal searches wiretaps all over the place with impunity — if anyone discovered the search and complained, they’d just say, “Fine, we won’t use it against you in court.”** This is fine if you’re guilty of something — but no consolation at all if you’re innocent. The FBI could put a hidden camera in your shower or your bedroom, and if you never do anything illegal, you would have absolutely no recourse. The exclusionary rule effectively superseded the common-law criminal and civil penalties for illegal searches.

In effect, the exclusionary rule serves to narrowly construe the fourth amendment privacy protections to apply only to the guilty. If you are guilty, you will be protected from illegally-obtained evidence from being used against you in court. But if you are innocent — whether accused of a crime or not — they can search and wiretap you as much as they want, and as long as you don’t commit a crime, there’s nothing you can do to stop them.

So to answer Senator Levin’s question: Even if the authority to wiretap al-Qaeda isn’t in the war resolution, and isn’t even in the “penumbras, formed by emanations” of the war resolution or the President’s authority as Commander-in-Chief — in short, even if the wiretaps are actually illegal — the President can go ahead and do them anyway.

And his ability to do so comes from the very capstone of liberal jurisprudence.



*Normally, there is division of labor in eavesdropping — the NSA listens to stuff outside the United States, and the FBI listens to stuff inside the United States. I suspect this is due to the fact that the NSA was set up to protect us from foreign threats and the FBI was originally set up to investigate federal crimes within the U.S.

** Actually, law enforcement could effectively, if not strictly legally, use the information indirectly to prosecute criminals. For example, if they heard through a wiretap that a someone was about to commit a crime at a particular time and place, or had hid the loot someplace, they could go there and witness the crime in the open, or “find” the loot. Though they found out where it was through an illegal wiretap, the actual information obtained in the wiretap did not always have to be presented in court for it to be useful. When it didn’t, the exclusionary rule didn’t even protect guilty people. The only protection it provided was when some evidence was available only illegally, and that evidence was necessary either to convict, or to obtain a legitimate warrant.

16 Responses to “Carl Levin, Strict Constructionist, and the Exclusionary Rule”

  1. David Thomas Says:

    You are confusing rights with powers. Powers are actions the government can take, and must be provided for in the constitution (and also not prohibited, where there is overlap between permission and restriction). Rights are actions individuals can take, and we explicitly hold more of these than are listed in the Constitution. The constitution exists to constrain what the government can do. While I take no stance on abortion myself, I do not find any inherent contradiction in what you cite, and I’m pleased to hear my Senator saying the right thing, whether or not it is for the wrong reasons.

  2. The Panda Says:

    Of course, these types of governmental “powers” leave no protection for the innocent from government intrusion, and that seems rather un-American, doesn’t it?

  3. Different River Says:

    David: I don’t think I’m confusing rights and powers. Rights are, at a minimum, a limitation on government power. In particular, the right to be free of unreasonable searches and seizures, and to be secure from all searches except upon issue of a warrant meeting specified requirements, is certainly a right that is a restriction of government power.

    My objection to the exclusionary rule is that it does not actually limit the government’s power to search; it merely limits the government’s power to use the fruits of illegal searches in a criminal trial. And it does so in a way that protects the guilty, but leaves the innocent (both accused and not-even-accused) open to loss of their rights without any possibility of redress.

    My objection to Carl Levin’s comments is not that I think he’s right or wrong on any particular point, but that he’s hypocritical — strictly or loosely construing legislative and constitutional language according to which suits his political purposes. Thus, he construes the war resolution’s phrase, “the President is authorized to use all necessary and appropriate force” not to include the authority to gather intelligence necessary to know how to apply that force — but construes the Fourth Amendment’s ” The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” to include the right to an abortion, which is clearly far outside the scope of the amendment.

    I agree with David that “we explicitly hold more of these [rights] than are listed in the Constitution” — that’s the whole point of the Ninth Amendment (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”). However, this does not mean that we hold every right imaginable. In order to claim an unenumerate right under the Ninth Amendment, you have to make a reasonable case that the right existed (and probably, was recognized) at the time the Ninth Amendment was adopted. This applies to a lot fo things, but not to everything. For example, abortion was a criminal act in several states at the time the Ninth Amendment was adopted, and no one at the time took the Ninth Amendment (or even the fourth) to mean that those laws were to be abrogated. On the other hand such rights as attorney-client privilege (and marital privilege — the right not to be compelled to testify against your spouse) were widely recognized at the time, and are still recognized, even though they are not specifically mentioned in the constitution.

    As far as the lack of protection being “rather un-American” — yes, that’s precisely my point!

  4. Ben Says:

    It is a fiction to imagine that the Federal government is restricted to only those actions specifically outlined in the Constitution. This has never been the case. So the first problem, as DR points out, is that Senator Levin’s question of whence the Constitutional authority is a non-question. To the extent that a particular action does not violate any right that We The People retain, the government is not forbidden from taking that action. The question that Sen. Levin should have asked is something along the lines of “Does this violate the rights of American citizens?”

    Which brings us to DR’s second point. It is long established that warrant-less searches do not violate a citizen’s rights, they are merely not admissable against a defendant in court. In summary, therefore, the spying does not violate any citizen’s rights which means that at most, it cannot be brought up against the defendant in court.

    This may be a side point, but do you think Sen. Levin would actually want the Feds to be restricted to taking only those action specifically permitted to it in the Constitution? The Feds would lose the ability to fund abortions, the NEA, public schools, etc. I cannot imagine that Sen. Levin would want this. So either (1) he is serious in asking his question and believes that the Federal government should do only those actions explictly outlined in the Constition (in which the ability to fund all this pet projects goes away); or (2) he is not serious and is trying to score some cheap points off the President by attemtping to hold the Executive Branch to a standard to which the Legislative Branch does not need to follow.

  5. Ravenwood's Universe Says:

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  6. Different River Says:

    Clinton and Carter Ordered Secret Warrantless Searches
    As long as we’re on the subject of President Bush ordering wiretaps of al-Qaeda operatives’ international phone calls and e-mails without court-issued search warrants, Matt Drudge is reporting that President Clinton and President Carter did pretty mu…

  7. Different River Says:

    Ben: Whether “the Federal government is restricted to only those actions specifically outlined in the Constitution” harks back to the original debate between the (original) strict constructionists and the loose constructionists. The former believed the Federal government to be restricted to the “enumerated powers” (see article 1, section 8); the latter interpreted the “all other acts necessary and proper” clause at the end of that section to mean “they can do anything they aren’t prohibited from doing.”

    Obviously, the latter side “won” — but in the early 1800s, the debate was very much in force. Jefferson opposed Hamilton’s plan for a National Highway on the grounds that Congress was not given the power to fund highways in the Constitution; a quarter century later Jackson vetoed the renewal of the charter of the Bank of the United States on the grounds that Congress was not given the power to charter banks.

    As for the claim that “It is long established that warrant-less searches do not violate a citizen’s rights, they are merely not admissable against a defendant in court” — that is precisely what I am objection to. The plain meaning of the fourth amendment is that the people have the right to be free of warrant-less searchs (and “unreasonable” searches even with a warrant!). The fact that this right has been repeatedly violated for a century does not mean that “it is long established that warrant-less searches do not violate a citizen’s rights.”

    Likewise, the fact that most Blacks were denied the right to vote in the South for almost a century after the 15th Amendment was passed does not mean that their rights were not violated — it was “well established” that states could stop Blacks from voting — but it was still a violation of their constitutional rights. The fact that the violation continued for a long time with the approval of the courts, the congress, and the press did not make it right.

    And no, I can’t imagine that “Sen. Levin would actually want the Feds to be restricted to taking only those action specifically permitted to it in the Constitution.” I think Levin’s statement is one of hypocrisy — which is precisely the point of the first half of the post.

    He is not serious and is trying to score some cheap points off the President by attemtping to hold the Executive Branch to a standard to which the Legislative Branch does not need to follow.

    My point exactly.

  8. Ben Says:

    Even during the allegedly halcyon days of the early 19th century, the notion that the Federal government is restricted to only those power explictly listed in the Constitution was never true.

    (Jefferson’s administration is commonly held as the paragon of Federalism, but it is worth noting that even during his presidency the Federal government did plenty of things not explictly outlined in the Constitution: the Louisiana purchase and the Embargo Act come to mind. The famous Marbury v. Madison case ruled for Jefferson’s administration — Madison was his SecState. In order for SCOTUS to rule for Madison, it had to “discover” additional powers which are not found anywhere in the Constitution, namely the power of judicial review. Jefferson was perfectly happy with this.)

    And I don’t think you’re reading the fourth amendment right (ouch, bad pun). The first part of the amendment specifies that The People have a right to be free from unreasonable searches, with or without a warrant. The second part says that they also have a right to be free of with-warrant searches except those which are sworn out in detail. It does not say that the government is prevented from warrant-less searches, unless you think that all warrant-less searches are unreasonable on their face, a position which does not jive with my experience or intuition and certain is not born out in caselaw.

    I’m not advocating that something should be permitted just because it is “well-established”. With respect to the narrow question of whether or not warrant-less searches are permitted in cases where there is probable cause, especially where there is no expectation of privacy (IANAL), the action is both “well-established” and legal.

    I think we can agree that Sen. Levin is being disingenuous, is asking the wrong question, and is trying to have his cake and eat it, too.

  9. No Nanny State Says:

    Blind Loyalty
    Different River takes us through a convoluted, assumption-ridden ride, trying to cover Bush’s ass. He attempts to twist the Exclusionary Rule (if evidence is obtained illegally, it is excluded from the evidence that is allowed in court) to his own me…

  10. Different River Says:

    No Nanny State (Trackback above) completely misunderstands this post. He thinks I’m blindly defending Bush, when in fact I’m attacking what I see as liberal hypocrisy. He even goes so far as to say I “full of glee … that … there is a loophole in our legal system to allow the secret, unconstitutional surveillance of people in America.” Nothing could be further from the truth — I highly value my privacy (I blog anonymously, remember?), as well as privacy as a general right. Actually, I was writing to oppose the current situation, which I actually think is too lenient, not too strict, when it comes to limited government’s power to search and seize. The fourth amendment is supposed to protect everybody, not just guilty people. And I would prefer the interpretation of that amendment to be extended to do that.

    My purpose in writing the post the way I did was to say to liberals, “What are you complaining about Bush for? It was you liberals who set this thing up so that government can snoop whatever it wants, except against criminals.” Basically, Carl Levin complaining about too much government intrusion is like Ted Kennedy complaining about too little enforcement of drunk driving laws.

    He also cited couple of sections of federal law (apparently, part of FISA), of which I wasn’t aware and am glad to have been pointed to. However, they don’t really undermine my point.

    First, he cites Title 50 §1811, which states that, “Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.” NNS seems to think that this means “the president may authorize surveillance without a court order during the first fifteen days of a war.” It seems more likely to me that it actually “during a war, the president may authorize surveillance for a period of no more than 15 days, without a court order.” If this is actually the governing statute in this case — which I’m not sure of — then the President , through the Attorney General, can authorize surveillance of particular targets in 15-day chunks without a court order.” Assuming, of course, that the war resolution of 9/14/2001 counts as a declaration of war.

    Second, he points out that it is actually a criminal penalty (Title 50 § 1809) for an individual federal employee to conduct surveillance in violation of FISA. However, those penalties apply only if the employee knew the surveillance was not authorized by statute — and there is no reason to believe that an employee ought to know that an Executive Order of the President, citing the authority of specific statutes, was incorrect. Thus, no one involved in this program — or any other presidentially-ordered searches — could be prosecuted.

    Third, he points out that there are civil remedies for the people who are subject to surveillance (Title 50 § 1810). However, the civil remedies only apply to “An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801(a).” But a foreign power is defined in section 1801(a) to include an international terrorist organization, and an agent is defined to including anyone who is a member of, or who acts on behalf of, or aids or abets any such organization. So, no one who would be the subject of Bush’s order would have recourse under this section. Furthermore, the civil remedies are against the individuals conducting the surveillance, not the government itself. The government is still protected by “soveriegn immunity,” and the individuals are guilty only if the “knowing or having reason to know” that the surveillance is “not authorized by statute.” Given that FISA authorizes many type of surveillance when ordered by the President or the Attorney General, even without a warrant, there is no reason to believe that an employee ought to know that an Executive Order of the President, citing the authority of specific statutes, was incorrect. Thus, no one involved in this program would actually be subject to civil penalties.

    As if that weren’t enough, none of the above applies to my basic objection to the exclusionary rule — the laws cited apply only to federal employees and only to electronic surveillance (wiretapping). In particular, they do not apply to searches or wiretaps by local or state police, nor to physical searches by federal employees. So if you come home one day and find that your house has been ransacked, your papers and your computer seized, your (or your wife’s) jewelry impounded, and the walls of your house cut open so they could search the hollows between your rooms — all without a warrant — there isn’t a whole lot you could do. You can’t sue, because the state is protected by sovereign immunity. And you can’t get the cops arrested for doing an illegal search, since according to the Supreme Court, your “remedy” is keeping the illegally seized evidence out of your trial. You could go to the police and complain, and they would say, “Oh, so sorry — we forgot to get a warrant. Well, don’t worry, we won’t use that ‘evidence’ against you in court. If we ever bring you to court, which we may not, if we don’t find anything illegal about your stuff. And no, you can’t have your stuff back until we’re done ‘investigating,’ and no, we have no idea how long that is going to take. We have a lot of things that are a higher priority than going through all that insulation we pulled out of your walls. So don’t call us; we’ll call you. Maybe.”

    Some consolation — and some penalty to the cops — it is, that they can’t use that ‘evidence’ in your trial.

  11. The Other Mike S Says:

    Based upon your comments here and over at my place, if you are saying that this post is in opposition to the spy scandal, you are right, I BADLY misunderstood your meaning! I’ve re-read it twice now, and am still unable to come to that conclusion, but I’ll take your word for it.

    Please accept my apologies.

    A couple of nits to pick on your response:

    1. The 15 day rule: Not to get too Clintonesque, but I think it depends where and if there’s a comma in the sentence. If there is one present between, “calendar days” and “following a”, you MAY be able to interpret it as “any 15 day period following a declaration of war”. If there is no comma (as has been the case on all of the copies I’ve found on the Internet), it would mean what it says: “not to exceed fifteen calendar days following a declaration of war”. Regardless of how liberally the sentence is interpreted, Bush has yet to apply for warrants or court orders for any of the spying, and is thus in violation of the law.

    2. Federal employee know FISA law: Of course they would be expected to know what is legal and what is illegal in regards to “electronic surveillance”. Just as a beat cop is expected to know “normal” search warrant laws and procedures, it is reasonable to believe that an NSA employee would know FISA.

    3. Aggrieved persons: The law specifically covers everyone EXCEPT foreign/terrorist states and their agents. The only way your interpretation would be correct was if everyone that was surveilled were a foreign/terrorist agent. If that were the case, Bush would not have tried to usurp this law. Regardless, it was in response to your supposition that “as long as you don’Â’t commit a crime, there’Â’s nothing you can do to stop them”. Clearly, if you’re just “Citizen Bob”, there is quite a bit you can do.

    Thanks for clearing this up. I like the content of your site, and was taken aback by this post. Glad to see I was mistaken.

  12. Different River Says:

    Thanks for re-responding!

    As to the “nits”

    1) Yes, it depends where the comma goes. That’s why proper comma placement is important! In any case, it seems that this may be over-ridden by other legal considerations anyway. See my next post on this topic.

    2) True, the relevant federal employees (e.g., NSA folks) can be expected to know FISA law as it pertains to their jobs, just as police officers are expected to know the usual search warrant procedures. However, I would suspect that if an NSA eavesdropper is handed a copy of an Executive Order of the President permitting a certain type of monitoring, and told to do monitor something that’s consistent with that order and seems generally like the stuff FISA allows, he probably has a right to assume that it’s legal. It’s the president’s job to make sure his executive orders are legal, not the NSA employee’s. Likewise, a cop who is handed a search warrant signed by a judge is probably entitled to assume it’s valid; if it was issued on the basis of a sworn statement by another officer, the first one is probably not responsible for conducting an illegal search if it turns out that the other officer lied under oath to get the warrant.

    3) Yes, the law allows anyone to sue for damages except EXCEPT foreign/terrorist states and their agents. Which is exactly the class of people covered by the president’s order! Thus, it appears that no law has been usurped and no law has been violated. More on this in a future post.

    By the way, I really appreciate your calling my attention to those provisions of the FISA law. That is basically what I was calling for in the case of the exclusionary rule (for normal crimes). If similar provisions were enacted for normal criminal searches, calling for criminal penalties for officers who conduct illegal searches or commit perjury to get warrants, and allowing civil damages for the targets of these searches when they are never charged or convicted of a crime, I would have no problem with the exclusionary rule. In fact, I might even support “exceptions” in the case of guilt — i.e., there might be certain (extreme) cases in which the cop would be punished but the evidence would be admissible.

    Having said all this, I think it is a grave mistake to treat international terrorism as a crime rather than an act of war. If Taliban fighters landed on the beach in New Jersey an started an invasion, the correct response would be to send out the Army and the National Guard to shoot them — not have the police to swear out a warrant and arrest them for illegal immigration and illegally importing guns and tanks.

  13. Different River Says:

    It Seems to be Legal
    Lots of folks with the right experience — both Democrats and Republicans — seem to be coming out with convincing arguments that President Bush’s “impeachable” executive order authorizing certain eavesdropping of terrorist suspects and contacts wit…

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  15. Chris Edelson Says:

    This is an interesting piece, and I certainly agree with the Roe comparison. Though I am pro-choice, I find it hard to defend Roe as an example of constitutional jurisprudence.

    One observation. There is a remedy for the administration’s secret spying’ if this violated the Foreign Intelligence Surveillance Act (which it almost certainly did), then aggrieved persons can seek statutory damages (I think it’s $1000 or some $ amount per days of violation).

    So in this case the administration can’t break the law with impunity (assuming those were spied on learn that they were actually spied on, which is a different question).

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