A Bit of Wishful Thinking on Civil Liberties

JB

Turrow points to Scalia's decisions in Kylo and Apprendi, and his concurrence in Hamdi v. Rumsfeld as evidence of Scalia's maverick ways, and he deduces that Scalia's "occasional alliance with the court’s more liberal justices could be struck again in future terror cases. The result would be an unequivocal declaration that executive power must yield to constitutional liberties, even when the nation is on the prolonged war footing we seem to have adopted."

Would that it were so, but it is not likely. What Turow neglects-- and he is hardly alone-- is that the civil liberties issues raised in the war on terror do not primarily concern construction of the Bill of Rights. Rather, as the Hamdan case suggests, they involve questions of the separation of powers, the scope of Presidential power in wartime, and the President's (and Congress's) authority to regulate aliens.

The Bush Administration has not chipped away at civil protections liberties where they are strongest, but rather where they are weakest: cases involving statutory rights, the scope of habeas corpus jurisdiction, the rights of aliens, particularly aliens held overseas, and human rights protections under international law. The civil liberties cases of the War on Terror will not look like those of the past, which is why the Administration will be able to diminish civil liberties while claiming that it has not seriously limited the Bill of Rights as to American citizens. When Turow thinks about struggles over civil liberties, he is largely fighting the last war.

The next two key constitutional cases on the war on terror will probably involve the NSA domestic surveillance case and constitutional challenges to the Military Commissions Act. They involve presidential power and the power of Congress to strip the jurisdiction of the federal courts with respect to aliens. Scalia's previous decisions suggest that he is far more likely to be on the Administration's side in these controversies. His dissents in Rasul v. Bush, Hamdan v. Rumsfeld and INS v. St. Cyr are far better predictors of how he will look at key civil liberties issues in the War on Terror than the cases Turow cites.

Although the NSA case may involve the Fourth Amendment, most courts have held that the Fourth Amendment does not apply to foreign intelligence collection, and there are various other exceptions to the Fourth Amendment that may take the NSA program out of its ambit. That being the case, the key question turns on Presidential power to work outside of the Foreign Inteligence Surveillance Act. The argument against the legality of the NSA program is pretty much the same as the majority's argument in Hamdan v. Rumsfeld, an argument that Scalia rejected. Scalia has long been an advocate of a strong executive, and where Congress can be said to support what the executive has done, Scalia's degree of deference is likely to be even higher.

Things get no better with the Military Commissions Act. A passing acquaintance with Scalia's views on jurisdiction stripping in his dissent in Hamdan and his views on habeas stripping (especially with respect to aliens) in St. Cyr suggest that he is among the least likely of the Justices to be sympathetic to claims that Congress acted unconstitutionally in passing the Military Commissions Act. Remember that the Military Commissions Act primarily affects non-citzens held overseas, and if anything is clear from Scalia's concurrence in Hamdi v. Rumsfeld, it is that he makes a sharp distinction between the rights of citizens and non-citizens.

There may be some civil liberties issues in the future in which Scalia joins the liberals. I doubt, however, that many of them will be the key issues in the War on Terror. That is because the Bush Administration has found ways to limit civil liberties without making a direct assault on the substantive content of the Bill of Rights. Rather, the Administration has found ways to route around the Bill of Rights by creating a parallel system of military detention and surveillance justified by claims of emergency and national security. That is to say, the Bush Administration has produced an early version of what I call the National Surveillance State. To the extent that the coming constitutional struggles over the National Surveillance State involve the scope of Presidential power (often abetted by Congress) and the rights of aliens, particularly aliens who are in the country illegally or are behing held overseas, Justice Scalia is not likely to be the great civil libertarian that Turow hopes he will be.

But my larger point concerns more than Justice Scalia's jurisprudence. It is about civil liberties generally. Because the problems of governance and the nature of goverment responses are always changing, it is not enough to prevent governments from doing bad things that people fought over long ago and that we now firmly reject. Rather, in ever new situations, governments are able to find ever new ways to limit people's liberties under the forms and practices of law, making new distinctions, and creating new techniques that are plausibly distinguishable from old controversies. That is why the protection of civil liberties is not about making sure that governments don't repeat precisely the same mistakes they made fifty or a hundred years ago. It is about making sure that they don't abuse power in new ways based on the evolving forms of governance.