The Constitution vs. Counterterrorism

The U.S. Constitution is certainly the most celebrated government charter document in the world and perhaps in the history of the world. It is therefore the most venerated notwithstanding the fact that its meaning particularly some parts of it has been debated by judges, lawyers, and legal scholars from the time it was enacted for the most part in the 18th Century.

Nevertheless Judge Richard A. Posner points out “other countries have greater flexibility to tailor their judicial procedures to the special problems posed by terrorism.” As if to drive that point home, the current Supreme Court (albeit only by a bare majority) in the Hamdan Decision expressed a notable lack of sympathy for the argument that our understanding of certain provisions of the Constitution needs to be revised to meet contemporary needs. The Supreme Court may change their mind after a further examination of the nature and types of actions that terrorists engage in in order to prepare for an attack or God forbid another attack itself. But we cannot wait for that to happen.

Posner suggests instead that the dilemma of defeating terrorism while respecting civil liberties can be resolved by a change of focus from the adjudicative process to executive and congressional oversight. He explains that this would mean less effort at trying to prevent terrorism by means of criminal prosecutions whether in civilian courts or in ad hoc military tribunals. It would also mean less use of devices such as warrants which are mainly designed and used to aid criminal law enforcement by authorizing officials to search for and seize evidence of crimes that have already been committed or are in the process of being committed.

This approach would at least merit further and serious discussion if for no other reason than it would be very difficult if not impossible to demonstrate any deterrent effect whatsoever as a result of the criminal prosecutions of terrorists that we have had to date. The terrorist threat is as strong and pervasive as it ever was. On the other hand, fortunately, if and when a terrorist plot is detected, it has been demonstrated that it is usually possible to neutralize the plotters and conspirators without prosecuting them. Non-prosecutorial and non-judicial techniques such as deportation, administrative detention, “turning” terrorists to work, for us, discrediting them in the eyes of their accomplices and diverting them from their terrorist plans by carefully planting disinformation and/or by monitoring them with a view toward discovering the identity of their accomplices all have worked well in preventing terrorist attacks so far.

Judge Posner also argues persuasively that monitoring, even when it takes the form of wire tapping or other electronic interceptions need not always be conducted pursuant to a warrant. The constitutional debate as to whether the Fourth Amendment prohibits any searches which are not pursuant to a warrant or a specified exception to the warrant requirement was in fact ended by the Supreme Court quite a while ago. Warrantless searches are clearly permissible as long as they are reasonable!

The threshold issue to be decided now is “What is reasonable in the light of the 21st century terrorist threat?” The answer to that question depends on understanding the nature of the terrorist threat and the behavior of terrorists around the globe. That threat and the behavior of those who present it has never been surveilled, studied and analyzed with a view of determining what means of monitoring it are reasonable and articulatable if the goal is to prevent the attack. We should put our best people on that as soon as possible. That would include constitutional scholars, writers, historians, as well as intelligence professionals, technologists and Retired Court of Special Appeals Judge Charles Moylan who could sum it all up in 100 pages or less.

The potential abuses of warrantless surveillance can be minimized without judicial intervention by laws and rules limiting the use of intercepted communications to national security, requiring the names of persons whose communications are intercepted (and the reasons for and results of the interception) be turned over to executive and congressional watchdog committees and imposing draconian penalties on persons who violate civil liberties in conducting surveillance.

There are still plenty of issues related to interrogation techniques and torture that are not Fourth Amendment issues which will require further discussion. But the Fourth Amendment and privacy issues Posner writes about and his innovative proposals to address them ought to be under serious discussion in transition team circles and among the “Team of Rivals” forming President Elect Obama’s administration.

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