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Evaluating The Government's Proposals

Thursday, Sep. 20, 2001

Civil libertarians have expressed fear that the recent terrorist attacks will lead to incursions on our freedom. Their concerns make sense: We will probably have to live for a long time with any legal changes that we make now, for the Administration has warned that the war on terrorism may be a long one, so we should be careful to make legal changes we can live with.

In making these changes, we need to decide which civil liberties we value most, and why — and which we do not value as much. Inevitably, the sphere of our civil liberties will contract and grow smaller. The real question is: In what way?

Should we worry most about planned expansion of the wiretapping and surveillance laws, or about the likely decision by the Pentagon to bar reporters from deploying with troops and reporting from warships as they did in the Gulf War? Should we care most about the Fourth, Fifth, or First Amendments where law enforcement is concerned?

I will try to sketch out what can only be a tentative answer to these questions, in light of the uncertainty as to what the government's specific proposals may be.

Inevitable Civil Liberties Tradeoffs

Even under our current system, appeals courts are often very reluctant to reverse criminal convictions when the argument for reversal is procedural or technical. In the conservative Fourth Circuit Court of Appeals in Virginia, for example, the reluctance is so pronounced that an attorney friend joked to me that he couldn't file an appeals brief for his client there because "There is no criminal appeal in the Fourth Circuit."

Why are courts so reluctant to overturn convictions, even when strong legal arguments are presented in favor of doing so? In part, it is because they understand how difficult it is for the government to procure a conviction at all, even if the evidence strongly indicates the defendant is guilty.

That difficulty comes in part from the "beyond a reasonable doubt" standard, which we should never alter. But it also comes from the Fifth Amendment, which provides safeguards that we might reasonably reconsider.

I once complained to a prosecutor about the very limited amount of discovery available to criminal defendants under the Federal Rules of Criminal Procedure. He shot back, "I'll give defendants more discovery when they give me a deposition." Of course, it is the Fifth Amendment that prevents him from getting the depositions he wants.

The availability of Fifth Amendment rights warps our whole criminal justice system. Among other things, it means that defendants do not get the discovery from the government that they deserve. As a result, they can be surprised by the case against them in ways civil defendants — who only have money, not life, at stake — cannot be. It also renders many meritorious appeals futile. Finally, it encourages police and prosecutors to break rules to get a conviction for those they believe are guilty, and encourages courts to look the other way when this rule-breaking occurs.

The Fifth Amendment should be replaced with a system in which criminal defendants can be deposed, and receive discovery, just as civil defendants can. But a broader point also follows from the warping effect of the Fifth Amendment on our system: We should choose our civil liberties carefully, for if they broaden too far in one sphere, our system has the tendency to contract them in another. While I do not endorse this type of zero sum arrangement where civil liberties are concerned, I do believe that it currently exists, and that its existence may be inevitable.

Fourth Amendment Rights and Related Laws

Although no one so far has discussed making changes related to the Fifth Amendment, changes related to the Fourth Amendment have already been suggested by Attorney General Ashcroft. Specifically, Ashcroft has expressed the desire to "upgrade and strengthen" wiretap laws and to expand agencies' authority to conduct surveillance as they investigate possible lawbreaking.

The legal limits on wiretapping derive in part from the Fourth Amendment, but also in part from a federal statute passed in the wake of the Supreme Court's 1967 decision in Katz v. United States, which held that wiretapping constitutes a constitutionally -protected "search."

Until the proposals to change wiretapping and surveillance laws are made more specific, it is difficult to assess how damaging to civil liberties they will be. Ashcroft's specific proposal to allow wiretaps to be authorized person-by-person, rather than phone-by-phone, seems eminently sensible, at least at first glance.

If Attorney General Ashcroft were to follow up, for example, with proposals for national cellphone directories, and requirements that cellphone owners register with the government and verify their identities with proper identification when phones are purchased, those further requirements might also be sensible. It is not only the portability of cellphones but also their anonymous and disposable nature that make them ideal for the commission of crime.

The Fourth Amendment itself has some built-in flexibility to account for times of emergency, because much of the doctrine interpreting the Amendment suggests that courts must assess what searches and seizures are reasonable under the circumstances, and whether it is reasonable to require a warrant. Certainly "the circumstances" have now drastically changed.

Accordingly, even without any legal changes, we can count on courts in Fourth Amendment cases to allow a broad variety of government measures on the ground that they are "reasonable," though we may also fear that these flexible tests will let the government go too far. After all, all the security precautions we failed to take — even intrusive ones — seem not just reasonable but intensely necessary in retrospect. Courts will understandably fear that if they invalidate security measures on Fourth Amendment grounds, more tragedy may result.

Ironically, the Fifth Amendment's absolute proscription of self-incrimination (even through a deposition) does not share the same flexibility that Fourth Amendment doctrine's assessment of reasonableness does. As a result, unless there is a dramatic change to the current system, we will probably end up protecting less valuable rights, more absolutely. The guilty will be allowed to remain silent, yet the innocent will undergo searches that violate their privacy.

One of our most important concerns in the Fourth Amendment area should, of course, be to avert the targeting of Arab-Americans for extra searches or surveillance based on ethnicity alone. If more searches and surveillance are necessary, then we should all undergo them together, no matter the delay imposed, rather than use racial categorizations to save time.

First Amendment Futility?

It has also been reported that the government is expected to take measures regarding war journalism, placing heavier restrictions on it than ever before, and conducting a war on terrorism that will be conducted with unprecedented secrecy. These government measures very probably will not be held by courts to violate the First Amendment.

There are two basic reasons why. First, the military has in the past been granted substantial deference by courts in First Amendment cases, even those where far less vital interests were at stake. Second, the measures so far discussed — barring journalists from deploying with troops and reporting from warships — are highly likely to be viewed by courts as what lawyers call a "matter of grace," not a "matter of right."

The thinking will probably be that the government never was legally required to afford journalists this type of access in the past, but only did so as a sort of favor to them and to the public. Thus, the government need not do so now, especially in light of the recent terrorist acts.

In short, lawsuits to force the government to afford journalists access to war reportage will probably be futile. And even in the highly unlikely event that courts were to hold that such access in principle should be possible, courts would still have to decide when reportage is warranted in particular situations. To make that decision, they would inevitably employ a balancing test which, combined with a large degree of deference to the military, would mean access was rarely given, if ever.

In short, the courts are not likely to help the media or the public to get better access to wartime information.

The Reason Journalists' Access Is Crucial

What, then, can be done? A great deal — and a great deal should be done, for the free speech battlefield will be one of the most important of the war. Whether the letter of the First Amendment is technically involved or not, its spirit certainly will be.

One might ask why journalists were allow to accompany troops and report from warships in the Gulf War — when our enemy was Iraq, a sponsor of terrorism. Was the government just naïve then about the risk that reporting posed?

Hardly. I believe reporters were probably allowed then in part because it was clear American casualties would probably be at a minimum and American air forces would probably be highly effective, and thus that reporting would tend to increase support for the war. This war, in contrast, may be bloodier, more frustrating, and less successful, especially if it is waged in part in Afghanistan, where guerrilla forces have triumphed over invasions twice before. Journalism about the war may bolster domestic support for it, but it may also be a source of domestic critique, as the Administration well knows.

Journalism still should happen. President Bush has said that this war will end at a time of "our choosing." "Our" should refer to us, the People, not just to President Bush and Colin Powell. We need enough information about the war from journalists — specific information — to decide when to continue, and when to put an end to, a war that could theoretically go on forever.

We need to know, for example, about foreign civilian casualties that our actions cause so we can measure when enough is enough, or at least warn our government that we care about the life of innocent people in Afghanistan, Pakistan, and other countries — not just in America.

Many of us think of the Gulf War as a war with few casualties. But it was only a war with few American casualties. Iraqi civilians — with far less control over their government than we have — did die, though we barely seemed to notice.

If innocent people die abroad as the result of our actions, we need to know, and to know how many died and why they died — in part because we need to mourn them. If we celebrate their deaths, we are as bad as those Palestinians who cheered the World Trade Center attack. If we ignore their deaths, or remain willfully blind to them because our government invokes secrecy and shuts out the press, then we are not the People we ought to be.

The Free Speech Rights We Should Care About

Will we continue to preserve rights technically within the First Amendment — including the right to advocate violence, up to a point — and yet not preserve the right to know what our government is doing in our name, with the help of journalists who can report and explain what is happening?

I, for one, would much rather give up the formal First Amendment advocacy right than the informal but crucial right to know that is an integral part of free speech. Again, we need to look at our civil liberties as a whole and assess which we truly care about, even in wartime, and why.

The heavy press restrictions that are anticipated may be the civil liberty issue most deserving of our focus in the coming days. If we do not know what our leaders are doing, and simply trust them as "experts," then we are no longer truly a democracy in a time when we most need to be one.

Julie Hilden, a FindLaw columnist and a graduate of Yale Law School, is a freelance writer and the author of the memoir The Bad Daughter. She practiced First Amendment law as an associate at the Washington, D.C. firm of Williams & Connolly from 1996-99.

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