Privacy After September 11

Lino A. Graglia
University of Texas Law School 

The 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 time.  

            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, “‘Well, 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 ‘60s, 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 background.” 

            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.