WHEN WILL THE WAR ON TERRORISM FORCE CONSERVATIVES TO CHOOSE STATES' RIGHTS OVER IMPROVED NATIONAL SECURITY?
Not Yet, As the Recent FISA Appeals Decision Shows

By EDWARD LAZARUS
Thursday, Nov. 28, 2002

At first blush, there may not seem to be much of a link between the commitment of conservative judges to the concept of states' rights, and policy initiatives authorizing new national security measures at the potential expense of civil liberties. But I believe there is: One principle will ultimately have to yield to the other. The only question is, which will yield?

Suppose the conservatives prove true to the states' principles they espouse. Those very principles may well provide a limit to the trade-offs of national security in exchange for individual liberty that the nation continues to make in its fight against terror. And vice-versa: If federal power to fight terror grows, the principles undergirding the states' rights movement will inevitably suffer.

The Values Behind the Court's Emphasis on States' Rights

Many critics of the Supreme Court's recent federalism jurisprudence don't believe that the allegiance of the conservative justices to the concept of states' rights is based on principle. In their view, conservatives simply believe that, overall, states will make more politically conservative policy choices than the federal government.

And, thus, in the view of these critics, empowering states at the expense of the federal government is just a way for these justices to advance conservative policy results. And cleverly, it allows conservative to accomplish this goal through the seemingly neutral mechanism of allocating power between competing sovereigns, thereby cloaking the conservatives' true aims.

But let's put aside such cynicism for the moment and take the conservative Justices' states' rights philosophy at face value. At bottom, what is it that motivates their move to rein in federal power and reserve to states a greater sphere of exclusive jurisdiction?

By contrast, these conservatives see large federal bureaucracies as nameless, faceless behemoths. They fear such bureaucracies will have little connection to the people whose lives they govern and that, therefore, there will be little constraint on their abuse of power.

These are reasonable premises, and they enjoy a long and honorable history. They were shared, for instance, by some members of the founding generation - who looked to the abuses of British colonial rule, and developed a strong distrust of a remote centralized sovereign authority. (As regular readers of this column will know, I disagree with this view, believing it inapposite in the modern era, but it does, at least, have a lengthy pedigree, and it grew out of principle, whether or not it is endorsed today as a matter of principle or convenience.)

If the Conservative Justices Are Sincere, They Should Reign in Federal Power Here, Too

And that idea - the idea of principled, longstanding distrust of centralized federal power on the part of conservatives - brings me to the link between federalism and the current politics of terror. How one assesses most of the new initiatives for fighting terrorism boils down to a question of trust.

It's relatively easy to see how each new proposal might help root out terrorist threats. The ideas aren't irrational. But the real question is, when you look at these initiatives either singly or collectively, at what point do they trigger a reasonable fear that, however well intentioned, they have opened the door to massive abuse by a central governmental authority that lacks any real accountability?

More specifically, the question for the prophets of federalism is this: Given their philosophical antipathy to centralized power, at what point do they start sounding the alarm, and announcing that the current expansion and consolidation of federal power has gone too far?

When Will Conservatives Start to Balk at Increasing Power Centralization?

With last week's decision authorizing more government wiretaps and searches of alleged foreign agents, we can see that the point hasn't been reached yet.

That decision, as readers may be aware, was rendered by a special appeals court of conservative judges handpicked by Chief Justice William Rehnquist (Mr. Federalism himself). The opinion's effect was to uphold the provision of the post-9/11 "Patriot Act" that lets federal prosecutors use information gathered by counter-espionage or counter-terrorism agents under special warrants issued by a secret court - the "FISA court"

On the surface, this information sharing between prosecutors and law enforcement might seem innocuous. But it's not.

The Problem with the Recent FISA Court of Review Decision

To begin, the very concept of the FISA court search warrants - which have been issued since the Court was founded over thirty years ago - is troubling.

Ordinarily, the Constitution requires that the government establish "probable cause" that an individual is engaged in criminal activity before it can obtain a search warrant from an ordinary court. The FISA court, though, issues warrants against alleged foreign agents on less than probable cause - on the theory that stopping espionage and terrorism sometimes calls for a bending of the usual rules.

Some constitutional scholars think that the FISA court is unconstitutional for precisely this reason. But before the Court of Review's ruling, these critics could at least take comfort from the fact that the information gathered through FISA warrants was used exclusively to stop spying or terrorism - and wasn't handed over to prosecutors to build criminal cases.

In other words, the relaxing of the Constitution's protections of personal privacy in the FISA Court context was, prior to the current ruling, strictly limited to the elimination of threats rather than the prosecution of individuals. Thus, the FISA court, at that time, could not become an easy end run around the probable cause requirement for warrants contained in the Fourth Amendment.

Not anymore. Some months ago, the FISA court itself had ruled unanimously (7-0) that the USA PATRIOT Act's information sharing provision was unconstitutional. In its opinion, it also, disturbingly, revealed that it had discovered 75 instances where the FBI had tried to abuse the FISA warrant process even with the then-existing safeguards. As the court noted, the FBI was sharing information from FISA warrants with prosecutors long before it was authorized to do so.

Last week, though, Rehnquist's specially appointed three-judge appeals court - after a secret hearing at which only the Justice Department was allowed to present argument - reversed the FISA Court. Far from rejecting the USA PATRIOT Act's and Ashcroft memo's information sharing provisions, it gave them its stamp of approval. (See Anita Ramasastry's recent column for this site for more detail on the decision itself.)

Trusting Government Too Much, When Civil Liberties Are At Stake?

On the other hand, the potential cost to civil liberties is considerable. FISA warrants are a powerful tool to hand over to prosecutors, who are under tremendous pressure to root out terrorists. The Court of Review let prosecutors use relatively scant, and always secret, evidence to wiretap and conduct searches against anyone falling into the rather amorphous category of "foreign agent." By doing so, the Court of Review's opinion raised substantially the risk that innocent people will be subjected to highly intrusive government surveillance.

The FISA decision, moreover, does not come in isolation. Rather, it comes from the same Administration that has brought us a host of other civil-liberties-endangering programs. There is the use of secret military tribunals for those the government accuses of terrorism. There is the mass closure of immigration hearings, and the secret detention and quarantining of suspected terrorists (even those who are U.S. citizens). There is the "TIPS" program encouraging citizens to spy on one another and report to the government. And recently, we have learned of the "Total Information Awareness" program - by which the government would create information files on pretty much everyone, which potentially would include financial and health records, internet browsing habits, even emails. That means you, me, and everyone we know - not people suspected of any connection to terrorism, or even people who have any connection to people who are.

A political check on these initiatives is relatively unlikely. People are scared - understandably - and the votes of elected officials will reflect that fear. Often, civil liberties don't feel as valuable as national security to voters: After all, it takes a while to be directly affected when liberties are taken away, while having too little security encourages constant fear. Understandably, people want to believe the government is doing all it can, to the greatest extent it can. Rights may simply seem like an impediment.

That means the judiciary will have to play the role of finding a limit to the trade-offs between liberty and security - that is, the role of deciding how much police power we are going to entrust in the federal government. And ironically, it will most likely be the states' rights judges who dominate both the Supreme Court and most federal appellate courts who will have to draw the line.

And so the test is upon them. Is the federalists' fear of centralized government genuine? Or is it, as the critics say, merely a smokescreen for advancing a conservative political agenda? Let them stand up and be counted.


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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