Category: Op-Ed

Rulings in Ziglar and Hernandez: The Supreme Court, the Fourth Amendment and the `Special Factor’ of `National Security’

In Hernandez v. Mesa and Ziglar v. Abbasi, two just-decided cases, the Supreme Court has now made it such that individuals wishing to obtain damages from agents of the federal government for violation of their Fourth Amendment rights have very limited avenues left to do so.

These claims are called “Bivens claims”, after the 1971 Supreme Court case Bivens v. Six Unknown Federal Agents, which was a suit for damages against agents who conducted an unreasonable, warrantless search of a private home, using excessive force. Under Ziglar, any new case not closely (or even, for Justice Thomas, “precisely”) resembling the situation in Bivens must be subjected to a broad-ranging `special factors’ test as to whether the courts should `hesitate’ to create a new ground for Bivens claims. New types of claims, Ziglar suggests, should be denied if Congress has not signaled support for such claims. Bivens claims are not “a proper vehicle for altering an entity’s policy” and are “not designed to hold officers responsible for acts of their subordinates.” If brought directly against executive officials for their own actions, a successful claim would “interfere with sensitive Executive Branch functions” of policy deliberation. If the claim would involve inquiry into “national-security policy, hesitation is warranted, because that “is the prerogative of Congress and the President.” The “proper balance in situations like this, between deterring constitutional violations and freeing high officials to make the lawful decisions necessary to protect the Nation in times of great peril, is one for the Congress to undertake, not the Judiciary.” This is a substantial extension from the “special factors” cited to in Bivens, which suggested hesitation only in cases involving “federal fiscal policy”, cases where the agent’s conduct was “contrary to no constitutional prohibition”, and cases where Congress had barred money damages in particular.

One issue here, among many, is that “national-security policy” now, relative to 1971, is used to cover a vast array of activities by the federal government. Infrastructure? Sure. Global warming? Absolutely. Border policy? Why not?

Beyond that, “national security” is the constant refrain of those in government who seek to conceal merely embarrassing or unpopular conduct. National security, as the Ninth Circuit has put it in this year’s `travel ban’ cases, is often used as a “talismanic incantation that, once invoked, can support any and all exercise of executive power[.]” Such talismanic uses deserve increased alertness from the courts, not increased deference. In truth, no Supreme Court decision, in our current hegemonic situation, is capable of rendering the executive unable to defend the country. Our military is well-founded and technologically advanced; there is no prospect of foreign invasion.

Since “national security” is such an interpretive inkblot, asking courts to accept or deny damages claims on the basis of it leads only to arbitrary decisions based on judges’ prior biases. One could as easily argue that detention of Muslims without charge (Ziglar) or a CBP agent shooting a Mexican teenager harms national security as hurts it. When dealing with such a protean concept, any argument is possible; Ziglar’s novel inclusion of “national security” as a “special factor counseling hesitation” is highly dangerous and overbroad.

In Hernandez¸ a 15-year-old Mexican national was shot in a culvert from across the invisible line separating the U. S. from Mexico, by a border agent, and his surviving family wished to bring a Bivens claim for damages under the Fourth Amendment. However, the Fourth Amendment is often conceived of as being primarily a collective right that pertains only to those who have acted to make themselves in some sense part of “the people” of the United States (see, for example, the plurality ruling in U. S. v. Verdugo-Urquidez [1990]). As such, it is hard to apply it on behalf of an individual who had never apparently been to the United States, nor taken any steps to render himself part of “the people.” A Guantanamo case, Boumediene v. Bush [2008], did permit non-citizens outside the US to bring a habeas corpus claim. So, when Hernandez was accepted for argument before the Supreme Court, at least four Justices wished to see the following three questions answered:

May qualified immunity be granted or denied based on facts—such as the victim’s legal status— unknown to the officer at the time of the incident?

Whether the claim in this case may be asserted under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971)?

Does a formalist or functionalist analysis govern the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States?

The Court was able to agree only on the first of these, that the government was mistaken in arguing that Agent Mesa should enjoy “qualified immunity” for his actions, because that immunity could only be based on facts known at the time. They remanded to the lower court the question of whether the claim could be asserted under Bivens in light of Ziglar, heavily hinting that “special factors” would apply.

It is hard to see how even under the new “special factors” envisioned in Ziglar, the situation in Hernandez would require denial of the Bivens claim. The aim of the suit in Hernandez is not to alter policy at the border – indeed, the Customs and Border Police, in light of this case and an analogous Ninth Circuit case, have already revised their policy. The aim of the suit is not to hold Agent Mesa’s superior officers responsible for his own actions. Congress has not barred such suits for damages. Perhaps, the Supreme Court could be viewing border control as an aspect of “national-security policy” to which the Courts should be deferential. However, in this case Agent Mesa is conceded by both sides to have acted contrary to CBP policy in shooting Sergio Hernandez, even if there are arguments about how intentionally he did so. If the Fifth Circuit finds accordingly, it would be possible, even under Ziglar, for them to conclude that a Bivens claim could proceed.

The last and largest of these three questions, on whether a formalist or functionalist analysis governs the extraterritorial application of the Fourth Amendment, was the main topic of our brief, which argued that the history of claims by non-US persons against US government agents shows that the Constitution does not give power to its agents to arbitrarily deprive non-US persons of life. This question was only really addressed in a dissent authored by Justice Breyer and joined by Justice Ginsburg, who tried to construct a basis for allowing a claim by Hernandez’ surviving family because of the “special border-related features” and “limitroph[ic]” nature of the border in the El Paso-Ciudad Juarez area, but their arguments did not secure a majority.

To our disappointment, these rulings, rather than confronting and correcting the adverse consequences of current agency practices, defer their resolution to another day. Eventually, however, even if not explicitly in this case, the Court will have to rule on the third question above, and when they do, it will be fascinating.

obamaspyingwideTwo and a half years after Edward Snowden provided definitive proof that the US government and its allies are illegally spying on their own populations en masse, and a week before the first presidential primary in Iowa, it is troubling to me that the issue hasn’t received more lasting concern and attention, both from the public and leading presidential candidates.

One of the major roadblocks to generating the widespread and ongoing outrage that mass surveillance deserves (and that I’ve spent much of my time since June 2013 trying to generate) is the simple fact that a large part of the population has a difficult time seeing why the issue is so important. This indifference is often summed up with the phrase “If you have nothing to hide, you have nothing to fear.”

So, allow me to reach out to those in the English-speaking world who believe mass surveillance is not a problem, and explain as comprehensively as I can in a single article why you definitely have something to fear from the NSA and similar agencies, even if you think you have nothing to hide.

1. It is your right to hide parts of your life you consider private, even if they aren’t considered nefarious.

When I talk to people who don’t consider mass surveillance a problem, I like to ask if they’ll give me access to their Facebook account, as well as all of their text messages and emails. Unsurprisingly, they never want to. Many don’t even want their spouses to have that kind of access to their private information.

What this demonstrates is that having “something to hide” isn’t a sign of some severe transgression that threatens others, which the government needs to be aware of. We all want to keep intimate or embarrassing or easily misinterpreted or otherwise private aspects of our life hidden, both from strangers and those close to us.

As Glenn Greenwald explained in his book No Place to Hidescientific studies on surveillance demonstrate that it “turns insignificant actions into a source of self-judgment and anxiety.”

Children begin to seek privacy from their parents at a young age, and this desire continues for the rest of their lives, because privacy is an important part of growing up and becoming independent. As Snowden himself said in an interview, “A child born today will grow up with no conception of privacy at all. They’ll never know what it means to have a private moment to themselves, an unrecorded, unanalyzed thought. And that’s a problem because privacy matters, privacy is what allows us to determine who we are and who we want to be.”

This is very relevant to mass surveillance, given that NSA officers “on several occasions have channeled their agency’s enormous eavesdropping power to spy on love interests” and “members of the United States military working at the spy agency” like to share “sexually explicit photos” that they intercept.

The number of citizens whose highly sensitive information the NSA (and its thousands of employees and contractors) has access to is surely increasing rapidly, in an era when more and more children are having their early romantic and sexual explorations through their computers or phones.

Ask yourself whether you want the things you hide from your own parents—or that your own children hide from you—to be easily accessible by thousands of people you don’t know, working for the government.

2. Privacy is a necessary component of political activism, and society at large isn’t always right about what should be considered nefarious.

I recall reading a comment in 2013 that joked that “the US government is definitely spying on grocery baggers from Texas,” mocking users on reddit and elsewhere for their outrage towards the NSA.

Aside from the fact that average people are having their privacy violated, the argument that “I’m not important enough to be spied on, so who cares?” ignores the fact that the privacy of non-average people matters a whole lot as well.

Imagine we were talking about the First Amendment instead of the Fourth Amendment. Imagine the Obama administration decided that Bill O’Reilly’s punditry on Fox News were a threat to national economic security because it spreads unfounded doubt about the Affordable Care Act, and arrested him. Or, imagine that the Bush administration had done the same to Rachel Maddow or someone else on MSNBC, for spreading unfounded doubt about his foreign policy. I am certain that there would be widespread outrage, not just from O’Reilly’s or Maddow’s fans or ideological allies but from all parts of the population, over this flagrant and indefensible violation of their civil rights and free speech.

But an equally flagrant violation of the Bill of Rights, with equally negative effects on free speech, is taking place every day and has since the moment the Patriot Act was signed. It is simply happening in a form that is more thinly spread across the population, through the Fourth Amendment instead of the First Amendment, via the chilling effect of mass surveillance.

Every political activist, or controversial figure in any field, feels the need to hide some of what they are doing from the government or public at large, and are faced with attempts by the powers that be to access that information and use it to blackmail and/or intimidate them out of continuing their work.

History provides countless examples of this principle. The government of the time would have enjoyed access to all of Galileo’s private work and communications. It would not have been a good thing if they had it. The British government would have enjoyed more access to the founders’ private work and communications, including before the war started. It would not have been a good thing if they had it.

Using an example from the 20th century, the FBI spied on Martin Luther King, who was not an especially well-liked figure while he was alive, as part of a systemic attempt to harass and intimidate him in order to deter him from continuing his activism. Do you think the world would be a better place if they had more tools at their disposal to do so, and had been more successful?

More recently, it has been alleged that the IRS under the Obama administration unfairly targeted Tea Party groups for political reasons, and that Obama’s justice apartment arrested a controversial filmmaker in order to influence the 2012 election.

Is it hard to imagine someone in the US federal government using data collected by the NSA to blackmail or otherwise harass a Tea Party organization? Or Occupy Wall Street or Black Lives Matter protestors? How about members of Congress?

Regardless of whether you think the US government needs to go harder in its fight against ISIS, or distance itself from Israel, or repeal Obamacare, or transition from Obamacare to single-payer, ask yourself how it must affect the activists making that case to know the administration is spying on them and all of their private communications.

3. Those employing mass surveillance are doing so irresponsibly, and illegally.

Suppose you weren’t convinced by the arguments I’ve made so far, and the idea that the US federal government can access anyone’s private information isn’t itself troubling to you. I want you to think about how it got that power, and who is wielding it.

The Patriot Act was signed into law by George W. Bush, whose administration was mired in scandal and law-breaking, as even Republicans today can admit. Since 2009, those powers have been wielded by the equally controversial Obama administration, which couldn’t even competently launch a website for people to find health insurance on. I don’t know many people who consider either of those administrations to be full of competent, trustworthy people, let alone both.

Looking at the NSA specifically, consider that in the 12 years between the signing of the Patriot Act and Snowden’s leaks, those running it consistently lied both to the American people and Congress about what they were doing. Shortly before Snowden’s leaks in 2013, Director of National Intelligence Jim Clapper testified that the government does not “wittingly” collect “any type of data at all on millions or hundreds of millions of Americans.” The year before, NSA director Keith Alexander told Congress, under oath, that “We’re not authorized to do it [data collection on US citizens], nor do we do it.”

Also consider that the very person who wrote the Patriot Act doesn’t consider the NSA’s activities to be a justified application of it, and that those activities are a flagrant violation of the Fourth Amendment, as written. I welcome those who believe mass surveillance is justified to advocate amending the constitution to allow for it.

Consider that backdoors put into technology so that that government can access it has already created security issues that makes our information vulnerable to foreign hackers.

Even if you think what the NSA is doing could be justified, ask yourself whether you trust the people actually doing it to wield that kind of power, or whether you mind that they’re violating the constitution and committing perjury by doing so.

Also ask yourself whether you think it’s sensible to trust Barack Obama (or Hillary Clinton, or Bernie Sanders, or Donald Trump, or Ted Cruz, or Marco Rubio, or all the people each of them choose to appoint) full access to the data you enter into your phone, tablet, or computer, as well as that of every political commentator or activist that you support, and that of everyone in the United States or allied countries, or who communicates with those who are. I am going to guess that you would not trust a majority of those six people, if any of them, with that kind of power.

So isn’t it extremely troubling that it was secretly and illegally given to the office that Obama holds, and that one of those five other people will most likely hold a year from now?

4. Mass surveillance does not make us safe.

In December 2013, a member of the White House’s own review panel on the NSA admitted to a “lack of evidence that the bulk collection of telephone call records had thwarted any terrorist attacks.” In a report published in May last year, the Justice Department failed to find any instances of surveillance under the Patriot Act preventing an attack or making any meaningful strides to fight terrorist organizations. And Alexander himself has admitted that claims the NSA has stopped a large number of terrorist attacks were fabrications.

If there is any good evidence that the NSA is doing anything at all helpful to fighting ISIS, it certainly hasn’t been made public.

When the men responsible for the Boston Bombing were apprehended in April 2013, it was due to footage from a security camera filming a public area, and a massive ground search of the area by the Boston Police Department, not the NSA reading their emails or tracking their phone calls without a warrant. Osama Bin Laden’s compound in Abbottabad was located based on reports of people living in Pakistan, and these claims were confirmed based on video surveillance of that particular location. Bin Laden did not, not as far as I know, have a Facebook account.

In fact, the Russian government had warned the FBI about the Tsarnaevs two years earlier, and the US government failed to do anything with this easily and legally obtained intelligence, just as the Bush administration failed to act on intelligence warning it about Osama Bin Laden’s plans to attack the US by hijacking airplanes. What good does adding expensive, elaborate intelligence-gathering methods do when the US government has repeatedly failed to process and utilize the much more valuable intelligence provided to it elsewhere?

Adding unnecessary intelligence can actually make it harder to identify threats, because it makes it harder to determine what is useful and relevant. Additionally, violating the constitution and spying on allies reduces the US’s credibility and trustworthiness, making international cooperation in fighting terrorism more difficult.

Yet, the NSA’s annual budget is over $10 billion. That’s about $100 for every family in the United States, or the annual salary of about 250 000 US soldiers, or 180 000 high school teachers.

That’s how much every American is paying the NSA to violate our privacy and the Bill of Rights, while stifling free speech and completely failing to make you and your family any safer.

Ask yourself if you think you’re getting your money’s worth. I think you’ll agree with me that you aren’t. I think you’ll agree that the NSA is doing a whole lot more damage than good.

Whether you are a liberal, socialist, conservative, libertarian, moderate, or any other political ideology besides an admitted supporter of totalitarianism, you should be able to understand that illegal mass surveillance gives you a whole lot to fear. I hope that this article has made that easier, and that you will now join me in fighting it.