Tuesday, April 20, 2004

Re: Law Enforcement and Illegal Aliens

First off I understand the term "the wall" in a far more limited way than discussed in the CSMonitor article to which you refer, as well as your discussion suggests. I want to turn to the issues that you raise about the need to separate immigration and criminal enforcement functions as a policy matter, but that is different than the issue raised by the 9/11 Commission (at least as I understand it). Before getting to your points, then, let me offer a few points on the current debate related to "the wall."

FISA and "The Wall"
As Commissioner Jamie Gorelick used the phrase in her WP commentary, and as Andrew McCarthy did in his criticism of Gorelick [National Review Online], (not to mention several.other.commentators on the same topic), "the wall" addresses the legal barrier that was built specifically in response to the 1978 Foreign Intelligence Surveillance Act ("FISA"). That Act permits intrusions into the liberty of "foreign powers" and agents of foreign powers under different rules than normally apply to searches and seizures.

A special appeals court (appointed specially for the purpose of evaluating issues arising under FISA) ruled that FISA was constitutional as applied to foreign powers and their agents even if the information obtained was used for criminal prosecution. Up until that ruling, some were concerned that the FISA procedures may suffice for purposes of obtaining foreign intelligence information but not sufficient for criminal prosecutions. Therefore, lawyers for the DOJ thought that the two functions needed to be separate--thus, a wall between the two functions was put in place.

Various groups, including the ACLU and the Electronic Frontier Foundation ("EFF"), raised constitutional challenges to the lowering of the wall between criminal functions and foreign intelligence-gathering. The thrust of their argument as I understand it was that the Fourth Amendment requires (1) probable cause, (2) reasonableness in relation to the stated purpose of the search or seizure, and (3) particularity of the place or person to be searched, and FISA as applied to criminal prosecutions does not meet those three requirements (see this FAQ from the EFF explaining the issues). The Court rejected that argument, finding that FISA procedures were constitutionally adequate.

My concern with the Court's ruling is that FISA now permits the government to intrude upon a non-citizen's liberty interests far too easily--under the rubric of national security. As long as the DOJ shows that foreign intelligence-gathering is a "significant purpose" of the search or seizure (rather than the "primary purpose"), a warrant will be issued under FISA. The government must meet a far greater burden to obtain a warrant under normal criminal investigations. That "burden" goes to the heart of the Fourth Amendment's protections. Yet some, like Andrew McCarthy, appear to view those protections as nothing more than a nuisance:

It is, of course, a reality that in the law-enforcement realm, because it is hopelessly lawyerized and hyper-vigilant about civil liberties, we actually are forced to worry about such things as the privacy rights of drug dealers. Thus, we do find ourselves litigating ad nauseam such commonsense matters as whether, just because you properly heard something, you should be allowed to use it to protect the public.

Where national security is at stake, McCarthy contends that we can entirely abandon all procedural protections because they are just "theoretical" concerns. I wholeheartedly disagree. The Fourth Amendment extends equally to all persons in the United States and although I recognize that genuine threats to national security deserve a different approach than a garden-variety criminal investigation, the government should not be able to dress up a criminal case in "national security" cloth to escape the procedural protections provided by the Fourth Amendment. Unfortunately, because our nation is so terrorized by terror, we allow that to happen with little or no scrutiny.

Call me a cynic if you must, but I believe that we all must scrutinize government conduct as closely and as often as possible or we risk losing the rights upon which our great country was founded. The FISA warrants provide an ideal illustration--in the roughly 25 years that the Act has been in place, the DOJ itself has documented 75 material misstatements made to the FISA court to obtain warrants under that Act (see Dahlia Lithwick's commentary [Slate] for more details). Before 2002, of the 10,000 applications for FISA warrants, not one request was turned down.

Surely we should not ignore the threat that terrorism poses to our personal security. But at the same time I hope we do not cease to fear tyranny.

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