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No Unreasonable Search and Seizure

By Amital Etzioni

Much of the discussion about the post-9/11 balance between national security and individual rights is as polarized as much of our public discourse is. On one hand are those who argue that the threat of terrorism is vastly exaggerated, that fear-mongering is used to deprive Americans of their basic rights, and terrorists could be dealt with as yet another kind of criminal—by the police and tried in civilian courts. On the other hand are those who argue that the greatest danger the nation ever faced is the combination of terrorism and weapons of mass destruction, that those who oppose reasonable security measures are aiding and abetting the enemy, and that torture and extraordinary renditions have been vital in aborting major additional attacks on our homeland.

If one moves away from such one-sided, simplistic, overarching positions, one realizes that we face two major legitimate goals—national security and a lawful government based on individual rights—and that neither can or should trump the other, and that the tension between these goals can be worked out. Moreover, this key thesis is reflected in our Constitution, specifically in the Fourth Amendment. It avoids the absolute language of the First Amendment–“Congress shall make NO law”—and holds instead that there be no unreasonable search and seizure. That is, the framers of the Constitution recognized that some searches do not violate rights and are fully legal and legitimate. And they stipulated a criterion for determining which are acceptable: those that a reasonable person will recognize as proper. Needless to say, such recognition changes over time—for instance, after events that reformulate our national psyche, such as 9/11.

One next recognizes that the right to live is the most basic right. This is the case because all other rights are contingent on this one, while the right to live is not contingent on the others. It seems all too simple to state that dead people cannot exercise their rights, yet it bears repeating because the extensive implications of this observation are often ignored: When the right to live is violated because basic security is not provided, all other rights are undermined—but not vice versa. One further notes that the special status of the right to live is reflected in the criminal codes of all democratic nations, which punish taking someone else’s life—murder—more severely than practically all other crimes, including the violation of property rights, discrimination, and harassment. Hence, providing basic security— not avoiding all risks, but allowing people to feel secure in their homes and in public spaces—is essential and primary.

One next examines various security measures, each on the basis of their reasonableness, rather than condemning or embracing them wholesale. A key example of a security measure that seems eminently reasonable follows. Before cyberspace existed, the authorities could present evidence to show that they had probable cause to suspect that a given person posed a security risk and gain the permission of the court to tap that person’s phone (typically his only phone). Since then, people have obtained a large variety of new and diverse communications devices. In 2001, the Patriot Act changed the specifications of Foreign Intelligence Surveillance Act (FISA) wiretaps regarding particularity from one instrument to one person. Evidence still must be presented to the court, and authorities still must show probable cause and individualized suspicion. All that happened here is that law enforcement authorities were finally allowed to catch up with technological development.

Another reasonable new measure changed search warrants from local to national when dealing with the internet. E-mail is often is stored remotely on the servers of Internet service providers (ISPs). Under old laws, search warrants applied only to the jurisdiction where the search will take place. This meant that if a suspect in, say, New Jersey had e-mail stored on a server located in, say, Silicon Valley, an agent would have to travel across the country to obtain a warrant to seize the e-mail in the jurisdiction where the server was located. The Patriot Act allowed a judge in the district with jurisdiction over the crime under investigation to grant search warrants to seize electronic communications stored outside that judge’s jurisdiction.

In contrast, a measure that seriously challenges the notion of “reasonableness” is the violation of habeas corpus by holding people for years on end without trial or hearing. There is no reason detainees should not be brought before authorities composed of judges that have security clearances and follow procedures suited for dealing with terrorists.  They could determine, say every year or so, whether the person can be further detained.

Finally, there are some measures that are clearly beyond the pale. Terrorists are entitled to select basic human rights by virtue of being human. Although terrorists should be treated as abusive civilians who have forfeited many of their rights, certain basic rights should be considered inviolate. They should not be killed when they can be safely detained and held, nor should they be subjected to torture.

The greatest difficulty I have is coming to terms with the need to prevent rather than prosecute. Security requires that the primary goal of dealing with terrorists be preventing attacks rather than prosecuting the perpetrators after the attack has occurred. This is particularly evident when we deal with terrorists who may acquire weapons of mass destruction. It also holds for many terrorists who are willing to commit suicide during their attack and hence clearly cannot be tried, and who are not going to pay mind to what might be done to them after their assault. Even terrorists not bent on committing suicide attacks are often “true believers” who are willing to proceed despite whatever the legal system may throw at them, after the fact. All these kinds—those who may use WMDs, the suicide bombers, and the “mere” fanatics—are best prevented from proceeding rather than vainly trying to prosecute them, and most cannot be effectively deterred by the criminal justice system. However, the prevention of attacks often requires maintaining surveillance on large numbers of individuals and then maintaining dossiers on them—a highly troubling condition.

The best I can suggest, as I struggle with this and other such attempts to find a reasonable balance between rights and security, is to put into place strong review boards that will serve to ensure that when the government is granted new powers, they are used only for the legitimate purposes of enhancing security and only when we face clear and present danger.

Amitai Etzioni is a Professor of International Relations at the George Washington University and the author of Security First

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