Judge Gorsuch: Friend to the Fourth?

By Alex Marthews and Taylor Campbell

It’s expected that the Judiciary Committee will vote April 3 on Judge Neil Gorsuch’s nomination to the Supreme Court. He comes to the nomination with stellar formal qualifications, which is a nice change from, say, 90% of President Trump’s cabinet nominees (hello there, Betsy DeVos!). Inevitably and appropriately, Democrats are articulating the best arguments they can find as to why he should not be nominated. This article discusses those arguments, and gives Gorsuch a good hard look in terms of his Fourth Amendment jurisprudence.

Political Arguments

The first arguments made by Democrats, naturally, are political ones.

Throughout last year, after the death of Justice Antonin Scalia, Republicans mounted an unprecedented resistance to holding any hearings on any Obama nominee at all, on the specious ground that there was less than a year left in President Obama’s term. President Obama’s nominee, Judge Merrick Garland, should have been given a fair hearing. Not giving him one was a dangerous violation of past practice on advice and consent. It galls many people on the Left that now, thanks to the improbable election of President Trump coupled with Republican retention of the Senate, this obstructionism will now be rewarded. However, the Right violating past practice does not launder the Left repeating that violation. Gorsuch deserves the careful consideration the Founders envisioned when they gave Senators the power to “advise and consent.”

Second, now that there is an acknowledged FBI investigation into President Trump and Russian influence over the election, some folks who should know better (I’m looking at you, NARAL and Laurence Tribe) are arguing that Trump has lost the moral authority to nominate anyone, that anyone he nominates is tarred with Putinism, and that he won’t be around long enough as President to give rise to any Senate obligation to pay attention to his Supreme Court nominees. Plainly speaking, this is nonsense. Trump may have an array of increasingly obvious defects, but he is the duly elected President, and it’s exceedingly rare for Presidents to not serve out a full four-year term. Nor is there the least whit of evidence that Judge Gorsuch himself is beholden to Russian interests. Guilt by association is revolting, and the mere fact of being a conservative jurist is not disqualifying.

So let’s look more closely at Judge Gorsuch’s record, with a particular application to his Fourth Amendment jurisprudence, and other matters that may affect his future rulings in the field of mass surveillance.

Gorsuch on Chevron

The most distinctive element of his jurisprudence seems to be a desire to rein in the Chevron doctrine. This doctrine advises deference to executive branch interpretations of statutes where the statute is ambiguous and the executive branch’s interpretation is a possible reading – even if it is not the most natural reading, and even if courts have previously ruled otherwise. Chevron deference has enabled the rapid growth of the administrative state, which in turn has enabled executive agencies to respond to problems in the implementation of policies without depending on a dysfunctional Congress and understaffed courts for specific guidance.

The NAACP has taken issue with Judge Gorsuch on this ground, noting that administrative interpretations have played an important role in enforcing Title IX rules against gender discrimination and the Voting Rights Act. They are supportive of Chevron deference because the main examples they are thinking of are where agencies are trying to protect, rather than to violate, the rights of ordinary people. However, Gorsuch’s approach to Chevron is also, to an honest observer, the best evidence of his willingness to challenge presidents and agencies intent on violating people’s rights.

Restore The Fourth is centrally concerned with the overreach of executive power represented by the mass surveillance programs of the NSA, FBI, CIA, DHS and other agencies in the intelligence community. This overreach has been made possible by these agencies, in Michael Hayden’s phrase, “playing to the edge” of what the law allows, so that they get “chalk on their cleats.” Thus, they have adopted extraordinary and overstrained interpretations of ambiguous laws such as PATRIOT Act Section 215 and the FISA Amendments Act of 2008, until the actual programs as implemented bore scarcely any resemblance to what Congress at the time thought it was authorizing. Chevron seems highly relevant to the work of reining in those agencies, and skepticism regarding that doctrine could well be a useful quality.

Gorsuch’s Fourth Amendment Rulings

A Tenth Circuit appeals court judge does not see much by way of cases grappling with surveillance. Judge Gorsuch has generally refrained in his rulings from commenting on electronic surveillance or on Fourth Amendment issues with modern surveillance technology. The best evidence we have found of his views is as follows.

On the pro-Fourth Amendment side, in United States v. Carloss, his dissent opposed the argument that there was an implicit “permanent easement” of police access to the curtilage of a home, and argued that even if such a license existed, it would surely be revoked by the existence of multiple “No Trespassing” signs. In US v. Denson, he appeared willing to consider, following the Supreme Court’s ruling in Kyllo, that police warrantless use of a Doppler device to detect human movement and breathing within a home “posed grave Fourth Amendment questions”, but that opinion decided the case on other grounds without a (potentially useful) explicit ruling that radar guns fell under Kyllo‘s rule and would require a warrant. In US v. Ackerman, Gorsuch declared that the case involved “the warrantless opening and examination of (presumptively) private correspondence [i.e. email] that could have contained much besides potential contraband for all anyone knew. And that seems pretty clearly to qualify as exactly the type of trespass to chattel that the framers sought to prevent when they adopted the Fourth Amendment.”  He is clearly willing to apply the Scalia doctrine of warrantless “trespass to chattels” as the quintessential Fourth Amendment violation, to electronic as well as physical situations. In US v. Krueger, he defended the concept of territorial limitations to warrants in a way that points toward possible sympathy for Microsoft’s position in Microsoft v. Ireland, a crucial case relating to whether US government warrants can operate worldwide.

On the anti-Fourth Amendment side, Gorsuch’s attitude to law enforcement stops on the street or searches within the home often turns on less originalist and more contextual analysis of whether the law enforcement officer’s behavior was reasonable “in the totality of the circumstances.” In US v. Nicholson, his solitary dissent argued against exclusion of evidence in a stop-and-frisk case where the officer had made a “reasonable mistake in law”, stopping a driver for making a left turn that he believed to be illegal but in fact was legal; his reasoning was unexpectedly adopted by eight Supreme Court Justices in their later ruling inHeien v. North Carolina. In US v. Andrus, Gorsuch participated in a majority ruling that held that the police had consent with apparent authority from the father to search the computer, which they used to search theson’s files on the hard drive using forensic analysis software, and found evidence of child pornography. Officers would have lacked authority to search the son’s files had they turned the computer on and found out a priori that there were separate user accounts. From the perspective of a forensic examiner presented with a hard disk image, it would seem to make little difference how the hard disk image was obtained, but the ruling presumably enabled law enforcement officers to evade the warrant requirement by avoiding a situation where they might find out about multiple user accounts. The ruling might be influential in other situations, such as a police search of the hard disk of a shared VPS host in a data center before they realize it is shared by multiple users.

In “qualified immunity” cases, plaintiffs bring suit against law enforcement officers, seeking to establish that they acted so outside the norms of their training and expectations that they cannot properly enjoy immunity from suit. From a Fourth Amendment perspective, an excessive qualified immunity doctrine can prevent people from obtaining justice for violation of their Fourth Amendment rights; this has been a live issue in Rodriguez v. Swartz and Hernandez v. Mesa, two cases in which Restore The Fourth has submitted amicus briefs. In Kerns v. Bader, Judge Gorsuch refused to rule on the Fourth Amendment issue and awarded the officer qualified immunity. The question was whether searching medical records requires a warrant under the Fourth Amendment, given the third party doctrine. In dissent, Judge Holloway argued that they should. Unless courts ditch the third party doctrine altogether, which seems unlikely, clarity about exceptions to it is critical for digital Fourth Amendment issues, and it is helpful when courts are able to provide such guidance. If Gorsuch is unwilling to reach that question in a situation involving doctor/patient confidentiality, he may, speculatively, similarly not reach the question when considering cases involving attorney/client privilege.

Judge Gorsuch appeared in this and other cases particularly concerned to reinforce the notion that officers must know that there is “clearly established” law prohibiting their conduct in order for them to be stripped of qualified immunity.

Regrettably, the Supreme Court itself has made it hard for lower court judges, especially lower court judges who are devoted textualists, to roll back the epidemic of unjustified grants of qualified immunity to police officers or to restore the exclusionary rule to its proper status as a normal rather than extraordinary rule. Gorsuch is a stickler for litigants (except pro se litigants) adhering meticulously to procedural requirements, and he is unwilling to rule on constitutional issues unless the procedural requirements have unambiguously been satisfied. This tends to produce opinions that are narrow and by nature very deferential to the Supreme Court’s steady rollback of defendants’ Fourth Amendment rights; his concern for the “clear establishment” of a legal rule fits in here. It is possible that a Supreme Court Justice Gorsuch may be able to do what a Judge Gorsuch could not, and lower some of these hurdles that enable abuses of the Fourth to thrive, but that is unknowable before the fact. It is also possible that Justice Gorsuch would support narrow rules on standing and a strict attention to procedure that will make it hard for imperfect human beings to achieve vindication against abuses of their Fourth Amendment and other constitutional rights.

Gorsuch on Executive Wartime Authority

Most controversially from a civil liberties perspective, before becoming a judge, Gorsuch served in a junior capacity in President George W. Bush’s Department of Justice for a short period in 2005-06. During that time, he authored a draft memo that argued for a very expansive interpretation of executive power in time of war. His draft argued that, on matters of indefinite detention and torture, executive actions were essentially unreviewable by either Congress or the courts, thanks to Article II’s grant of unitary executive authority to the President as commander-in-chief.[2] This was a commonly articulated perspective within the Bush Justice Department in the years after the September 11 attacks, but Gorsuch experienced some pushback from other attorneys within the Justice Department and dropped the draft language, claiming that he was a “scrivener” of a consensus perspective rather than articulating a personal opinion. Whether that was true or not, it is reasonable to expect that Gorsuch will be less likely to rule in favor of Fourth Amendment protections where they rub up against executive war-making powers, such as a hypothetical lawsuit brought by the family of a US citizen victim of a US government drone strike. Too often, Fourth (and Fifth, and Eighth, and Fourteenth) Amendment claims are turned aside by easy invocation of “state secrets” and “national security”, words that appear nowhere in the Constitution and hopefully never will.

The Fourth Amendment is a large topic, and it is to be expected that over the course of his career, Judge Gorsuch would have written opinions that sometimes allow and sometimes deny Fourth Amendment protections. It may be that he would be more favorable to Fourth Amendment claims by defendants than Merrick Garland, which was characterized by “deference to police and prosecutors, including the suppression of evidence allegedly obtained by way of an unconstitutional police search.” However, our aim here is not to endorse or dis-endorse, but to inform participants in the discussion over Gorsuch’s nomination, and to draw from a large and varied record the most interesting Fourth Amendment elements.

[1] Charlie Savage, `Was That Search Legal?  Sometimes, Neil Gorsuch Ruled It Was’, February 2, 2017.

https://www.nytimes.com/2017/02/02/us/politics/neil-gorsuch-supreme-court-fourth-amendment.html

[2] Charlie Savage, `Neil Gorsuch Helped Defend Disputed Bush-Era Terror Policies’, New York Times, March 15, 2017.

https://www.nytimes.com/2017/03/15/us/politics/neil-gorsuch-torture-guantanamo-bay.html

[3] Amy Howe, `Gorsuch and the Fourth Amendment’, March 17, 2017.

http://www.scotusblog.com/2017/03/gorsuch-fourth-amendment/

[4] Sophie J. Hart & Dennis M. Martin, `Judge Gorsuch and the Fourth Amendment’, March 2017.

https://www.stanfordlawreview.org/online/spotlight-fourth-amendment/

TrumpTaps, Section 702, and Russell Tice: Three Levels of Talking About Political Surveillance

By Alex Marthews, National Chair

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In every country that has adopted mass surveillance, it has been abused for domestic political ends. It was so in (of course) the Soviet Union. It was so in East Germany. It was true in the US under Hoover and Nixon. Yet amid all of the scorn and hullabaloo about Trump’s tweets accusing President Obama of surveilling his campaign, and Nunes’ public confirmation of “incidental” collection, no-one’s asking the important question: What, in reality, prevents political surveillance from happening here?

The level I answer, from most journalists, is: Well, we’re America, and we have mechanisms that would prevent it from happening. We have a FISA court, and if you’re going to surveil an American, you need to go to that court, and get their approval. There’s no record of a request to the FISC to surveil Trump, and therefore Trump wasn’t surveilled.

This is goldfish journalism.

Let’s stipulate, safely, that Trump doesn’t have much expertise in how any of the government’s complex, semi-secret and overlapping surveillance authorities are supposed to work. In all likelihood, he was casually repeating something he saw on Fox, and wasn’t expecting it to be the huge controversy it’s now blown up into. He’s not a specialist in this stuff. He doesn’t, I suspect, really care to understand more. Nunes, in the interests of defending Trump, is now saying Trump’s organization was incidentally surveilled, and is expressing concern about incidental collection that he hasn’t expressed before; Schiff, the Democratic ranking member of the House Intelligence Committee, has protested that insofar as there was incidental collection, it was entirely legal. Yes, it is legal. That’s kind of the problem.

So journalists should know better than to come up with absurdities like “There was no surveillance because there was no paper trail at the FISA court”, or, worse, “There was no surveillance because former DNI James Clapper says there wasn’t.” Oh really? What, the same Clapper who is a byword for lies after perjuring himself under oath in testimony to Congress, in which, specifically, he denied surveillance of Americans that in fact existed? That James Clapper? In a just world, nobody sane would use Clapper as a trusted source for anything but the menu in the prison cafeteria.

On the paper trail, it was barely 15 years ago that President Bush set up the “President’s Surveillance Program”, which was specifically designed to evade the FISA court and warrantlessly surveil Americans – and much of that program was not stopped, but was simply legalized in 2008.

Journalists who trust such statements and write them up uncritically and without context, need their heads examined.

The level II analysis on this stuff, which I’ve seen from a few sources, is: OK, Trump was inaccurate to use the term “wiretap”, but there are broader surveillance programs, like those operating under Section 702 of the FISA Amendments Act (PRISM and UPSTREAM) that could certainly have intercepted his private communications and the communications of those in his circle. Such surveillance wouldn’t have been ordered by President Obama as a matter of targeting Trump specifically, but would have been an incidental effect of those larger programs which he did approve and renew. Now Nunes, by referring to “incidental collection under the Foreign Intelligence Surveillance Act”, appears to have confirmed this “level II” kind of surveillance. The fact that it is possible for such communications to be swept up is a serious problem that requires more of a reaction from Democrats than, “But this was legal”, and from NSA than “trust us, we’ll minimize that stuff out.”

But even beyond this, there’s a further level of analysis worth conducting. Back in 2006, Russell Tice, a senior NSA employee, blew the whistle on the NSA conducting specific surveillance on presidential candidates. Not only on them, but on members of the FISA court, the House and Senate Intelligence Committees, and Justice Antonin Scalia. True, both NSA and the O’Reilly Factor did their best to discredit his testimony at the time; but it boggles the mind that we can have a discussion about whether political surveillance is happening without even citing to what Tice said. We have no way of knowing whether the programs Tice revealed continue today. There’s no evidence that President Obama shut them down, or even knew about them, and NSA would have no incentive to let President Trump know about them either. So, you know, maybe the US is different. Maybe our NSA folks are just much more virtuous than people working for other countries’ surveillance agencies. Or we could be just like every other country that has done mass surveillance. Which seems more likely to you?

Which brings us to the final part of this analysis.

Having a President running his mouth about surveillance based on gossip and rumor is a bad thing. We can all agree on that. But in conversations with NSA sympathizers since the election, some of them are reacting in a disturbing way, as follows: That Trump should “not be allowed” to change existing alliances – that NSA has the right to withhold information from the President’s Daily Brief that they’re worried will be shared with Russia; in short, that in the absence of meaningful political opposition to Trump from Congress, the intelligence community should step in and be the saviors of the Republic.

nsa_susan#Resist!

Sorry, I mean, #AreYouGoddamnSerious? The NSA and CIA are going to save us?

If the intelligence community wants to give the impression that they’re far too professional to conduct political surveillance, they’re going the wrong way about it. After all these years, they still won’t even tell us how many Americans they’re spying on through “incidental” collection, and now if they act to discredit Trump using data from mass surveillance, what the hell kind of precedent will that set?

I want a president who will tangle effectively with the intelligence community and rein it in. Nothing about Trump suggests that he is that president. But both Democrats and Republicans who love this country should be able to tell the three-letter agencies, in words of four letters if need be, that it’s not their job to save us. It’s our job to save ourselves, from the much overhyped threat of terrorism, from incompetent elected officials, and from the agencies themselves.