Professor John Yoo recently wrote an
article (
WSJ, July 16, 2009) defending President Bush's warrantless wiretapping program. Mr. Yoo's reasoning is sound only if Americans desire a world where the Constitution is selectively applied using ethnic or religious criteria.
Mr. Yoo begins by using the government's incompetence as an excuse to ignore civil liberties. He says that post-9-11, we didn't know much about Al-Qaeda, so the "best" option was to tap everyone's telephones and computers to learn more. He says that compliance with FISA, which requires a judge to approve a wiretap if the target is an American citizen, would have been cumbersome and impractical post-9-11.
Mr. Yoo's arguments have merit. A warrant requests permission to spy on a specific person, telephone number, or email account. If you don't know who the terrorists are or what email/telephone accounts they use because your foreign intelligence services are incompetent, how do you ask a court for a warrant? The only option--at least initially--is to start spying on everyone to narrow the list of likely suspects. Consequently, any discussion about warrantless wiretapping must begin by accepting Mr. Yoo's general premises: getting a warrant is cumbersome, and it prevents law enforcement agencies from identifying terrorists as quickly as possible.
Mr. Yoo damages his credibility, however, by not disclosing the obvious: one, existing law does not require a court order to spy on non-U.S. citizens suspected of working for foreign powers; two, none of the 9-11 terrorists were American citizens; and three, his argument requires Americans to ignore the 4th Amendment, which protects U.S. citizens from unreasonable and unlimited government surveillance.
FISA requires a warrant only when American citizens are involved. The CIA and FBI may intercept communications between two non-U.S. citizens without a warrant. Again, the FISA warrant procedure only applies when an American citizen is involved. While it is true that American citizens may engage in terrorism, none of the 9-11 hijackers were U.S. citizens. As a result, the Constitution's so-called "dysfunctional" warrant procedure had nothing to do with 9-11. In fact, had the CIA and the FBI done a better job analyzing the information already available to them, they might have been able to prevent 9-11. Mr. Yoo's focus on the Constitution rather than the failure of our intelligence agencies to properly analyze information is troubling. It should be obvious that any terrorist will use code words, so even intercepting every communication with the words "Muslim," "airplane," or "terrorist" won't help anyone find potential hijackers.
What Mr. Yoo doesn't say is what warrantless spying would do--namely, give
carte-blanche to law enforcement to single out Americans based on nothing more than their ethnicity or religion. How much do you want to bet that singling out American citizens because of their religion or ethnicity will make them less loyal to America and law enforcement in particular? Why would people belonging to any targeted religion or ethnicity report suspicious persons or activity to law enforcement agencies if they think they will be treated differently than other Americans? Once you follow Mr. Yoo's belief that warrants are not required during wartime, you realize that what he's really saying is that every time there is a war, certain groups of Americans--whether Japanese, German, or Muslim--may be targeted based on their religion or ethnic background. After all, if Muslims attack Americans, then the quickest way to find terrorists is to target all communications involving Muslims or Islamic-related words, right? In reality, however, allowing the executive branch to selectively apply the 4th Amendment makes it harder to protect Americans.
Allow me to explain. Let's assume, as a purely theoretical exercise, that the primary threat of terrorism comes from Muslims. If we agree with Mr. Yoo's statement--that the lack of information about terrorists post-9-11 required suspending the Constitution--then it follows that we need more information about Muslims to protect America. What are the best sources of information about Muslims? People who go to mosques; people who have Muslim friends; people who eat in halal restaurants; and people who understand basic Muslim culture, allowing them to have comfortable interactions with Muslims. What groups of people fit into all of the aforementioned categories? Primarily Muslims. A Muslim is more likely to have information about other Muslims, some of whom may be terrorists, than a non-Muslim. Clearly, the best source of information about Muslims comes from Muslims themselves.
When a Muslim reads a webpage about how violent Islam is, do you think he or she becomes more or less likely to report potential terrorist activity to the government? When a Muslim reads that evangelical Christians believe that Islam is the natural enemy of Christianity, does that perception make it more or less likely that he will share information with other Christians? When a Muslim reads yet another anti-Islamic Daniel Pipes article, do you think he suddenly feels compelled to give up his religion and dedicate his life to finding Muslim terrorists? Allow me one last example: when a Muslim reads that his government's top legal advisor believes that the executive branch may spy on Americans without any checks and balances and realizes it means that his communications will be more heavily scrutinized than other Americans, does that make him more loyal or less loyal to America?
Each and every time a Muslim reads an ignorant statement about his religion or about the government spying on a mosque, he trusts his government less. This is a natural reaction. Anyone who believes his fellow citizens think he is not fully American because of his religion or ethnicity will probably isolate himself or associate only with people with similar backgrounds. This probable reaction--to withdraw and self-segregate--leads to less interaction, less openness, and less trust between Americans. We can prove that singling out people based on their religion or ethnic background leads to distrust and a lack of national allegiance by recognizing France's inability to assimilate its Muslim population. The French are notorious for believing that Muslims are not truly French and for attempting to restrict the exercise of Islamic modesty. As a result, in France, discrimination against Muslims is commonplace, which has led to riots. In contrast, despite America's participation in Abu Ghraib, Guantanamo Bay, and Iraq, America has never experienced widespread Muslim riots.
When Mr. Yoo proposes to ignore the Constitution during wartime, he's saying it is acceptable to antagonize certain groups and make them less loyal to America during a time when we absolutely need all Americans to believe in equal justice under law. Yet, in order to maximize our chances of gaining viable intelligence regarding suspicious activity, it is vital that all Americans, regardless of their religion or ethnic background, feel loyal to their country and their govenrment. Thus, in the real world, Mr. Yoo's proposed Constitutional interpretation restricts information about potential terrorists by weakening loyalty and increasing distrust of government, making us less safe.
Also, practical consequences aside, if Mr. Yoo is legally correct, why did America's founders specifically include a warrant requirement in the 4th Amendment if they believed the executive branch could freely spy on American citizens during wartime? The founders could have included a wartime exception within the 4th Amendment. They did not.
There is another problem with Mr. Yoo's argument. He states that in wartime, the President may bypass Constitutional safeguards to protect the American people because war requires quick action; however, post-9-11, the United States declared war on "terrorism," not a specific country. Such a war could last another hundred years or more. Without any oversight, who decides when the war is over and how to erase personal information gathered during the surveillance? Does the executive branch get to keep all the personal information it has gathered for the next wartime emergency? Without some oversight, who decides what information to keep, how to protect that information, and what information should be erased? What if Congress decides the war is over, but the President disagrees? Without the necessity of a warrant, if the executive branch believes a war is ongoing, who prevents it from continuing to spy on Americans? Most important, who decides when to stop surveillance on certain people? After East Germany's experience with the Stasi, you would think that an educated person like Mr. Yoo would realize the need for safeguards.
Mr. Yoo's belief that the executive branch may ignore the 4th Amendment during wartime would be more reasonable if the FISA courts were unduly interfering with the terrorism investigations. In reality, FISA courts have rubberstamped the government's requests for a warrant. See
here for the statistics. From 1979 to 2006, FISA courts approved all but nine wiretapping applications.
While Mr. Yoo's basic premise is correct--the 4th Amendment is indeed cumbersome--from a practical and legal standpoint, his interpretation of the Constitution makes us all less safe. What is most interesting about Mr. Yoo is his utter lack of self-awareness. One of the most serious threats to the United States right now is North Korea. Mr. Yoo is ethnically Korean. If North Korea attacks Hawaii, will Mr. Yoo mind if the government spies on him and his family for the rest of their lives, unmolested by the 4th Amendment? I wish I could say that Mr. Yoo would mind. He probably won't. Anyone who interprets the Constitution in such a way that approves of an American version of the Stasi clearly expects to be the one doing the monitoring, not ever the one being monitored. Perhaps Mr. Yoo is more self-aware than I give him credit for.
