SCN: Civil liberties

[Steve]

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(Dahlia Lithwick, Slate)---As the United States considers new anti-
terrorist legislation, it's worth looking at the measures taken by 
other Western-style democracies to increase national security. Do 
these strategies work? Are they consistent with our Constitution?  

National ID cards

In France it is mandatory to carry national ID cards, and citizens 
may be stopped by the police for card inspections at any time. 
National ID cards are also required in Belgium, Greece, 
Luxembourg, Portugal, and Spain. The British scrapped national ID 
cards after World War II but are considering them again in light of 
Sept. 11. 

National ID cards are not a component of the new congressional 
security bill, although several congressmen back them. A new Pew 
Research Center survey shows that seven out of 10 Americans 
favor a national ID-card program in which, like the French system, 
the cards would have to be presented to the police upon demand. 

Is there a constitutional barrier to a national ID-card requirement in 
the United States? Not really, but there may be a constitutional 
barrier to police demanding to see such a card without some 
suspicion that can be articulated. That might constitute a "seizure" 
under the Fourth Amendment.  

TV surveillance

British police have used closed-circuit televisions for years to 
watch for criminal or terrorist activity. The English are watched by 
2.5 million closed-circuit TV cameras on subways, in parks, in 
shopping malls, and on double-decker buses. British authorities 
claim that the cameras have greatly decreased crime rates in 
London, and they claim to have apprehended at least one IRA 
terrorist who had a car bomb. 

Because the Constitution does not protect privacy in public 
spaces, there is no legal problem with monitoring public 
thoroughfares in the United States. Being watched on the street 
involves no search or seizure, making it analogous to a policeman 
standing on a street corner.  

Other surveillance technologies

Face-recognition technology has been implemented in Newham, 
one of London's highest-crime neighborhoods. Special cameras 
capture images of faces and then compare them to databases of 
suspected terrorists. Face-recognition technology was used last 
year to photograph the tens of thousands of fans entering the 
stadium for Super Bowl XXXV. 

Civil libertarians call face-recognition technology high-tech racial 
profiling and say it might be as constitutionally inappropriate as a 
baseless "virtual lineup." Again, constitutional experts say that 
since Americans have no privacy expectation in public places, 
these technologies would likely be deemed permissible. 

Snooping on private places is a different matter: In last year's 
thermal imaging case, the Supreme Court prohibited the use of 
new surveillance technologies on a home without a warrant.

Suspicionless searches

In Israel, residents and their belongings are routinely searched 
(without particularized cause or suspicion) by police or security 
contractors, and are required to pass through metal detectors 
before entering some shopping centers, airports, or other 
attractions. 

Constitutional issues are raised in the United States only if a state 
actor (i.e., the police) searches you. You can be searched by 
private guards entering a stadium, a shopping mall, or a school 
without triggering constitutional claims. 

The Constitution does require that the police have objective, 
individualized suspicion (or "probable cause") to search you, your 
bag, or your car, but the Supreme Court has carved out some 
exceptions to the rule, such as border searches. Drunk-driving 
checkpoints and "near-border" stops are considered 
constitutionally permissible "brief seizures" because they promote 
special government needs beyond mere criminal law enforcement. 
Should you provide authorities during the "brief seizure" with some 
probable cause to search you further, the search is also deemed 
permissible. Thus, brief seizures outside shops or government 
buildings might not be unconstitutional if the courts choose to view 
them in the same ways airports, borders, and government 
buildings have been treated to date.  

It's worth noting here that U.S. police are already authorized to 
conduct searches without warrants in the case of "exigent 
circumstances," situations where probable cause to get a warrant 
exists but there's no time to find a magistrate. Example: The police 
pull your car over and you do something to suggest that you're 
about to attack them. 

"Exigent circumstances," "imminent harm," and other general 
exceptions to the constitutional rights laid out here involve urgent, 
immediate danger. In much the same way that your free speech 
rights stop when you tell the police you have a bomb, there will 
always be situations in which dire emergency outweighs civil 
rights. It's not clear whether in wartime this can become an 
exception that swallows the rule.  

The right to assemble, worship, and speak

The German government has approved the lifting of Germany's 
"religious privilege," which gave religious groups protected status 
under the law of association. That privilege guaranteed that 
membership in a religious group could not be seen as a criminal 
offense. 

The British government has imposed restrictions on the 
dissemination of information, forbidden the wearing of badges and 
uniforms of terrorist groups, and also prohibited membership in any 
designated terrorist organization. Until recently, British authorities 
banned the broadcasting of "the words of any speaker" who 
claimed either to be a spokesman for the IRA or to support 
terrorism. 

Whereas criminalizing or attempting to ban certain types of 
speech, association, or religious affiliation might not be a problem 
in other democracies, the First Amendment of the Constitution 
should bar similar legislation in the United States. That said, during 
World War I, the U.S. government passed the Espionage Act, 
which made it a crime to criticize the government.  

Racial profiling

Israeli authorities are allowed to single out travelers and citizens 
alike for questioning and searches based on nothing but racial 
origin. Vigorous racial profiling is cited by experts as one of the 
reasons Israeli airplanes are not hijacked. 

The U.S. Supreme Court has not yet established that racial 
profiling violates the equal protection clause of the Constitution. 
The court declined to hear a racial profiling case this week, and 
the federal courts of appeals currently differ on what constitutes 
racial profiling and when it's unconstitutional.  

Indefinite holding

The Canadian government imposed its War Measures Act in 1970 
after being confronted by militant Quebec separatists during the 
FLQ crisis, which involved some terrorism and kidnappings. It 
allowed police to arrest and hold suspected terrorists without bail 
for up to 90 days. That law is still on the books, although its 
constitutionality has not been tested under Canada's new bill of 
rights. 

France's special anti-terrorism unit can hold suspects for 
questioning for 96 consecutive hours, of which the first 24 hours 
may include no contact with an attorney. Britain's anti-terrorist 
legislation allows individuals to be detained for up to seven days 
without a court appearance. 

Congress' proposed new anti-terrorism bill allows authorities to 
hold foreigners suspected of terrorist activity without charges for 
up to a week and increases penalties for terrorist activities, but the 
standard constitutional protections presumably still apply to 
criminal suspects, ensuring due process, the right to counsel, and 
the right to have charges brought and bail set within reasonable 
time periods.  

Torture

Spain and Israel have been known to permit similarly lengthy 
internments of suspected terrorists without trial, with the added 
charm of using physical force to extract information and 
confessions. The British government lost an international court 
ruling in 1976 prohibiting their use of torture in interrogating 
suspected IRA terrorists. 

In 1999, the Israeli Supreme Court outlawed their previously 
sanctioned practice of allowing "moderate physical pressure" when 
interrogating suspects. Something akin to "gentle shaking" is still 
permitted under Israeli law, however, and Israeli authorities will not 
hesitate to "gently shake" members of suspected suicide cells. 

Both international and U.S. law prohibit the use of torture to extract 
information, although, again, under an "imminent threat" of serious 
harm, U.S. law may well sanction more than just gentle shaking.  

Assassination

In its fight against terrorism, the Israeli government has also 
condoned "judicially sanctioned executions," that is, assassination 
of terrorist leaders. 

The United States does not currently permit assassination, 
although this is not due to any constitutional barrier. It is 
established via an executive order that could be repealed at any 
time. Lawyers for the Clinton administration argued that the United 
States could legally assassinate Osama Bin Laden, even without 
repealing the executive order, since killing Bin Laden could be 
justified as either an act of war or self-defense—both justifications 
for murder under U.S. and international law.  

Most nations are not restricted by a supreme constitution and an 
entrenched bill of rights, nor do they require any constitutional 
adherence to the notion of a separation of powers. The U.S. 
Constitution could stand as a barrier to some of these measures as 
long as the Supreme Court asserts itself. 

Historically, the high court has been more than generous in 
allowing the legislative and executive branches to have their 
unconstitutional ways during wartime. The court stood back while 
President Lincoln suspended habeas corpus during the Civil War, 
and it authorized the internment of Japanese-Americans in 1944. 

And, as is clear from the discussion above, under "exigent 
circumstances," many, if not most, civil liberties can be 
constitutionally suspended. The real test of the new security 
bill—and the future of some of the measures outlined here—will 
not be whether they are "constitutional" in theory, but whether the 
court will find them unconstitutional during the exigent times ahead.

Thanks to Prof. Eugene Volokh at UCLA Law School.  


Copyright 2001 Microsoft Corporation





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