Notice how much the Fourth Amendment tells our enemies. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated," it states, "and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The Framers are usually considered patriots. Yet they gave traitors and criminals in their midst such powerful knowledge about concealing evidence of skullduggery! Today every terrorist with access to a pocket Constitution is privy to the same text. And thanks to the Supreme Court's practice of publishing its opinions, al-Qaeda need only have an Internet connection to gain a very nuanced, specific understanding of how the Fourth Amendment is applied in individual cases, how it constrains law enforcement, and how to exploit those limits.
Such were my thoughts Friday at UCLA Law School, where Stewart Baker, an attorney who worked in the Department of Homeland Security during the Bush Administration, participated in a debate about Edward Snowden. Some of his remarks focused on the NSA whistleblower's professed desire to trigger a debate among Americans, many of whom think it's their right to weigh in on all policy controversies.
"You can't debate our intelligence capabilities and how to control them in the public without disclosing all of the things that you're discussing to the very people you're trying to gather intelligence about," he said. "Your targets are listening to the debates." In fact, he continued, they're listening particularly closely. For that reason, publicly debating intelligence techniques, targets and limits is foolish. As soon as targets figure out the limits of what authorities can touch, they'll change their tactics accordingly. In his view, limits should be set in secret. A class of overseers with security clearances can make the necessary judgment calls.
Trevor Timm, co-founder of the Freedom of the Press Foundation, attempted to defend normal democratic debate. "What separates us from countries like Russia and China is that we can have these types of debates with an informed public that are completely aware of what types of surveillance are available to governments and what the legal standards are," he argued. "We're not specifically debating who the NSA is going to spy on, but whole surveillance regimes. If we didn't debate that in this country, the Fourth Amendment would be classified. But it's not."
Then again, the Fourth Amendment could be classified.
Jonathan Abel has written about retroactive classification, "a little-known provision of national security law that allows the government to declassify a document, release it to the public, and declare it classified later on." The government could "hand you a document today and prosecute you tomorrow for not giving it back," he explains. "Retroactive classification can even reach documents that are available in public libraries, on the Internet, or elsewhere in the public domain."
What if an unclassified Fourth Amendment was a pre-9/11 luxury? Knowledge of its contours would take many years to fade. But if its text and opinions interpreting it were scrubbed from the public record, if Fourth Amendment jurisprudence were conducted behind closed doors going forward, so that a secret body of law could develop, the next generation of terrorists wouldn't know the limits of the state in future years.
Whereas right now, judges openly set forth limits—including limits on particular surveillance methods (like GPS car trackers)—for everyone including al-Qaeda to see! A terrorist with American citizenship is especially positioned to exploit this knowledge.
Transparency is, in that sense, terror-enabling.
Of course, if the Fourth Amendment and the law surrounding it is kept secret from terrorists and criminals, it would have to be kept from law-abiding Americans too. But like Baker says, the limits of surveillance can't be debated in public without better informing terrorists. And that leaves Americans with an important decision.
The U.S. could continue to operate as a transparent representative democracy, where law is debated, interpreted, and adjudicated publicly; one where the people can oust elected officials as a consequence of any law that they enact or implement. If we stick with the system that the Framers envisioned, however, there may be some attendant risks. Are liberty and democratic legitimacy worth those risks?
Because there are alternatives. For example, the government could run with Baker's logic, declare that it's foolhardy to publicize any information about the limits of state surveillance, and take measures to keep all useful information from terrorists. Perhaps the Fourth Amendment and relevant case law could be retroactively classified. Citizen groups who support doing whatever is necessary to thwart al-Qaeda could organize Stewart Baker-inspired counterterrorism patrols: a list would be drawn up of all schools, law libraries, and book stores in a given area; then the patrols could go around with scissors, cutting the Fourth Amendment from all copies of the Constitution, as well as with gasoline cans and matches, so that Fourth Amendment textbooks could be burned for all of our safety.
It would prove more difficult to scrub information about the limits set by the Fourth Amendment from the web. But a few Espionage Act prosecutions would go a long way toward encouraging those who control web portals to stop resisting the transition.
The terrorists would have a much harder time learning about limits on surveillance imposed by the Fourth Amendment. Far-fetched? Not as far-fetched as you thought!
The next step would be obvious. There are ways in which the First, Second, and Fifth Amendments help to inform terrorists too. The same goes for related case law. Think how much less terrorists and criminals alike would know if all constitutional law, indeed all law of any kind, were interpreted before a secret body like the FISA court, rather than in open court where anyone can listen. Until then, our judges and constitutional-law scholars will regularly be putting out information that could be useful to our enemies. Stopping them would create an undemocratic system in which prosecutorial and police abuse would often be essentially undiscoverable and unchallengeable, and would inevitably end in civil liberties abuses of millions of innocents. But if, like Baker, you're not much bothered by mass surveillance of innocents, perhaps that price isn't too high to pay.