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Graglia – Privacy After September 11

Privacy After September 11

Lino A. Graglia
University of Texas Law School

Philadelphia Society
New Orleans, Louisiana
April 25, 2003

Will the events of September 11 result in a lessening of our rights of
privacy and other civil rights? Of
course they will, and they should. As
Judge Richard Posner has pointed out with his usual realism and bluntness, it is
a mistake to think of “existing civil liberties—freedom of the press,
protection of privacy and the rights of criminal suspects, and the rest—as
sacrosanct, insisting that the battle against international terrorism
accommodate itself to them . It stands to reason that our civil liberties will
be curtailed.
They should be curtailed to the extent that the benefit of
greater security outweighs the cost in reduced liberty.”

Whether the gain in security from any measure outweighs the loss in civil
liberties depends entirely, of course, on who is making the evaluation.
The salient fact of American life today is a deep cultural
divide between a liberal elite consisting of academics in elite institutions and
their progeny in the media and other verbal professions and the great majority
of the American people. In the view
of most people, historically and surely also today, protection of personal
security is of the very highest value, the first responsibility of government.
In this, as in many other things in our society today, however, they are
opposed by their educational, intellectual, and economic betters, the cultural
elite, who tend to value government efforts to protect personal security much
less highly, perhaps because they are usually much better able to provide
protection for themselves.

These evaluations are reversed when it comes to the other side of the
issue, limitations or infringements on personal liberties such as freedom of
speech or privacy. To those whose
only tools and products are words, little is more important than freedom of
speech—except, of course, when it is used to discuss racial preferences on
college campuses. To ordinary
Americans, however, it probably appears that we have a lot more freedom of
speech than we really need; they could do very well without, for example,
freedom to burn the flag, publish child pornography on the internet, parade
vulgarity through public buildings, or shout vulgar epithets at policemen.

The situation is similar in regard to privacy, which is perhaps even more
than freedom of speech very much an upper-class value, something of which the
ordinary person has less need than the elite.
Many academics—usually proportionately to how liberal they are—see
their essential function as maintaining an adversarial, if not a subversive,
relationship to American society, its traditions, mores, and beliefs.
They have reason to believe, therefore, that the less society knows about
what they are doing or planning to do the better; they tend to have a lot to be
private about. To the ordinary
American, on the other hand, privacy is a much less pressing concern.
He typically experiences less of it in his daily life, in his home and
job, and being less accustomed to it, feels less in need of it.
He probably has no serious objection to, for example, having a
drug-sniffing dog walk around his car or a heat-sensing device pointed to the
exterior of his building or even having a narcotics agent squeeze a package of
his in an overhead bus rack, even though, as the Supreme Court has recently told
us, these are all unconstitutional government actions because of their
deleterious effects on privacy. These
new expansions of the right of privacy are certainly good news for those of you
planning on entering the narcotics trade, but less so for the rest of us.

The lack of good arguments against the very moderate steps the Bush
administration has been able to take so far to combat terrorism, for example,
the USA Patriot Act, is perhaps best indicated by the feebleness of the
arguments that were actually made. The
egregious Senator Patrick Leahy of Vermont, then Chairman of the Senate
Judiciary Committee, for example, opposed the Act on the ground that we must not
“give up our liberties in improving our security,” because, he said, the
standard punch line to empty arguments, if we do “the terrorists win.”
We give up our liberties, of course, with nearly every law, the point of
law being to keep people from doing what they would otherwise do.
The terrorists, it would seem, have been winning for a long

The ubiquitous Nadine Strossen, President of the ACLU, opposed the act
because it infringes, she said, her right of privacy.
Stripped of the mystification in which it is typically embedded, a right
of privacy is simply a right to conceal information.
The assertion of such a right obviously invites the question,
What is it you wish to conceal? Nadine
does not like this question. “The
argument is always,” she complains, “ëWell, what do you have to
hide?'” “What I have to
hide,” she responded, “is my privacy.”
What she wants to hide, that is, is her right to hide.
But she also wants to hide, she continued, “my personal thoughts, my
intimate conversations with friends, my political views, and it’s just not the
government’s business.” I see
no problem with Nadine hiding her personal thoughts and political views, in
fact, I recommend it. But as to
intimate conversations with friends, they are probably better carried on
somewhere other than over the new electronic media to which the act applies,
just as they were before the new media became available.

Grover Norquist, tax reformer turned advocate of Islamist causes, told
Congress that the Act may violate the Ninth Amendment, the ultimate proof of the
lack of a valid argument. The Ninth
Amendment is so perfectly empty of content, that Randy had to write an entire
book to try to give it some.

Richard Levy, a constitutionalist at the libertarian Cato Institute, told
Congress that he really does want to fight terrorism, as do of course all
opponents of every effective means of fighting terrorism.
Levy found it necessary to warn Congress, however, that “shredding the
Constitution   is not the way to do it.”
Fortunately, the Constitution does not shred as easily as he thinks,
because, for one thing, there is a lot less of it than he thinks.
If anything is in danger from a serious and effective attempt to combat
terrorism, it will not be the Constitution, but only some of the Supreme
Court’s more extravagant additions to it.

The allegedly endangered liberties are always said to be to
constitutional rights and therefore sacrosanct and beyond the power of mere
majority will to change no matter how unwanted or harmful, ignoring Justice
Robert Jackson’s famous admonition that “the Constitution is not a suicide
pact.” It is important to
recognize, therefore, that most of the claimed rights, and certainly the claimed
right of privacy, come not from 1791 and the Bill of Rights, but from nothing
more ancient or venerable than the 1960s and the Warren court and its
successors. They are largely the
result, indeed, of the utopian egalitarianism, distrust of democracy, and hubris
of William J. Brennan, Jr. and his equally radical ally William O. Douglas,
America’s ayatollahs. Brennan and
Douglas, usually joined by Black, Warren, and Goldberg, subscribed to the
notion, popular in the ë60s, that the criminal is a victim of society and
society the criminal. It followed
that every obstacle put in the path of effective enforcement of the criminal law
was a step in the direction of equality and justice.
And so we got Miranda rules, new search and seizure rules, and
exclusionary rules, and the writ of habeas corpus was vastly expanded in the
belief that a convicted criminal simply could not have too many appeals.
The objective was to convert the criminal trial into a game in which each
side would have an equal chance to win. But
since the defendant is almost always guilty, he must be given many chances to
escape conviction, while the state’s ability to convict must be as restricted
as possible.
This is the system of constitutional criminal procedure that
our civil libertarians insist must be not only preserved, but extended even to
the fight against terrorism. This
overlooks, however, that while permitting ordinary murderers to go free may
result in a few more murders, freeing terrorists can have serious consequencies.

It is not difficult to find examples of how anti-terrorism law has been
treated as a game by applying to it constitutional rules made up by the Supreme
Court for our criminal law. The
Foreign Intelligence Surveillance Act of 1978 (FISA) provides for the electronic
surveillance of suspected terrorists and spies in the United States.
It was supposed to make warrants easier to obtain than under
the general criminal law. In the
mid-1970s, however, there was great concern to guarantee that intelligence
surveillance be confined to foreign affairs.
We wouldn’t want a government, after all, that while looking for
terrorists happens to get information that would foil a Mafia operation or a
kidnapping scheme. That would
infringe their privacy. In order to
obtain a FISA warrant, therefore, law enforcement officials must first obtain
the approval of the Attorney General before being allowed to apply to the judge
of the special FISA court. The
Chief Judge on the court in 2001 was one Royce Lambreth, given to reprimanding
the FBI for excessive enthusiasm in seeking warrants.
As a result law enforcement officials came to believe that they had to be
able to show that a suspect likely was a terrorist before they would be
permitted to use electronic surveillance to find out.
It is true, as privacy mavens complained, that applications to the court
were almost always granted, but only because the agencies knew that it was
useless to apply unless they could meet a high standard of proof.

The situation is illustrated all too well and too tragically by the case
of Zacarias Mousaoui, a French Moroccan who was probably the missing fifth
terrorist on one of the September 11 hijacked planes.
A flight instructor became suspicious when Mousaoui was first
evasive and then belligerent when asked to state his nationality and when he
sought to learn to navigate a commercial airline but had no interest in learning
how to land or to take off. The
instructor alerted the FBI, stating, “Do you realize how serious this is?  
A 747 loaded with fuel could be used as a weapon.”
Moussaoui was found to be in the country in violation of his immigration
status. He refused an FBI request
to examine his laptop computer, which the agents led to conclude that he had
something to hide. The French
Intelligence Service reported that Moussaoui had “a radical fundamentalist

Can you believe that Dept. of Justice lawyers refused the FBI’s request
to seek a warrant to examine Moussaoui’s laptop, no doubt out of a fear of
offending Judge Lambreth? The
information received from French intelligence might be worthless, the lawyers
pointed out, because it might have related to somebody else in France named
Zacarais Moussaoui. Justice
proposed, instead, to send Moussaoui to France to let the French examine his
laptop. Only after 9/11 and the
towers were down did Justice agree to seek a search warrant.
Are you grateful that American law protects your right of privacy to this
extent? It’s too bad, of course,
that the 3,000 people killed at the World Trade Center and Pentagon are no
longer also able to enjoy this right.

The World Trade Center towers would almost surely still be standing if
airport security in Boston had been permitted to question and search the clearly
suspect passengers who became hijackers, instead of being allowed only to
examine their checked luggage. We
have the consolation of knowing, however, that there was no “racial
profiling” or infringement of their privacy.
To make sure their privacy is protected further, the ACLU wrote to each
of the Arab embassies advising them that it stood ready to assist them in
evading government surveillance.

On a personal note, many years ago when my wife and I, both just out of
law school, were living on the first floor of an apartment house in a distinctly
downscale neighborhood here in Washington, some policemen came running down the
hall, pounded on our door, and asked if they could run through the apartment in
pursuit of a burglar. I, of course,
said, “Certainly, officers, come right in.”
But what if while they were in the apartment one happened to take a peek
into my closet? That would be o.k.
with me, too, because there was nothing in the closet but my overcoat.
I had no doubt then, or now, as to which side I was on in the
government’s efforts to protect personal security.
Many national Muslim organizations, however, with the aid and
encouragement of the ACLU, devote themselves to advising members that they need
not cooperate with government officials and should insist on strict enforcement
of their rights to privacy. Which
side do you think they are on? Asan
Akbar, the black Muslim American soldier who blew up his comrades in their tent
in Iraq left no doubt as to which side he is on.

In most systems, law enforcement officials take suspected wrongdoers to
court, in the American system terrorists who find surveillance annoying take law
enforcement officials to court. Suspected
terrorists can sue CIA and FBI agents individually for actions taken in the line
of duty. Can you believe that the
CIA and the FBI took the position that instead of defending their agents, the
agents would have to defend themselves at their own expense?
The agents were helpfully told that they could, after all, purchase
liability insurance, again at their own expense.
That, no doubt, did wonders to keep up their morale and guarantee their
vigorous pursuit of terrorists. The
National Commission on Terrorism, however—yes there is such a body, though it
does little good—had a helpful suggestion:
it recommended not that the CIA and FBI actually defend their agents, but
that they reimburse them for the cost of the insurance.

Our government’s security efforts under current law can probably be
more accurately described not as a game but as a farce.
Surely only an enjoyer of farce would insist that a nation’s
intelligence operatives (i.e., spies) seek as informers only persons of
good moral character and that they not operate undercover as clergymen,
reporters, or humanitarian workers. Wouldn’t
it be simpler just to require our spies to wear a C.I.A. tee-shirt or beanie?

We have been so rich and secure for so long that we could afford to be
foolish and reckless. We could
afford our Brennans and Douglases. We
have suddenly been brought to realize, however, that we are no longer so secure.
In fact, our very wealth and success have made us exceptionally
vulnerable—a few dozen suicidal fanatics can, for example, convert our
magnificent system of air transportation into an arsenal of deadly guided
missiles and our awe-inspiring skyscrapers into helpless targets.
Once this realization sinks in, it will mean that we will have to leave
the never-never land of today’s constitutional law and take seriously again
the first responsibility of government.

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