As the United States considers new anti-terrorist legislation, it’s worth looking at the measures taken by other Western-style democracies to increase national security. Do these strategies work? Are they consistent with our Constitution?
National ID cards: In France it is mandatory to carry national ID cards, and citizens may be stopped by the police for card inspections at any time. National ID cards are also required in Belgium, Greece, Luxembourg, Portugal, and Spain. The British scrapped national ID cards after World War II but are considering them again in light of Sept. 11. National ID cards are not a component of the new congressional security bill, although several congressmen back them. A new Pew Research Center survey shows that seven out of 10 Americans favor a national ID-card program in which, like the French system, the cards would have to be presented to the police upon demand. Is there a constitutional barrier to a national ID-card requirement in the United States? Not really, but there may be a constitutional barrier to police demanding to see such a card without some suspicion that can be articulated. That might constitute a “seizure” under the Fourth Amendment.
TV surveillance: British police have used closed-circuit televisions for years to watch for criminal or terrorist activity. The English are watched by 2.5 million closed-circuit TV cameras on subways, in parks, in shopping malls, and on double-decker buses. British authorities claim that the cameras have greatly decreased crime rates in London, and they claim to have apprehended at least one IRA terrorist who had a car bomb. Because the Constitution does not protect privacy in public spaces, there is no legal problem with monitoring public thoroughfares in the United States. Being watched on the street involves no search or seizure, making it analogous to a policeman standing on a street corner.
Other surveillance technologies: Face-recognition technology has been implemented in Newham, one of London’s highest-crime neighborhoods. Special cameras capture images of faces and then compare them to databases of suspected terrorists. Face-recognition technology was used last year to photograph the tens of thousands of fans entering the stadium for Super Bowl XXXV. Civil libertarians call face-recognition technology high-tech racial profiling and say it might be as constitutionally inappropriate as a baseless “virtual lineup.” Again, constitutional experts say that since Americans have no privacy expectation in public places, these technologies would likely be deemed permissible. Snooping on private places is a different matter: In last year’s thermal imaging case, the Supreme Court prohibited the use of new surveillance technologies on a home without a warrant. (Read a Supreme Court Dispatch about this case here.)
Suspicionless searches: In Israel, residents and their belongings are routinely searched (without particularized cause or suspicion) by police or security contractors and are required to pass through metal detectors before entering some shopping centers, airports, or other attractions. Constitutional issues are raised in the United States only if a state actor (i.e., the police) searches you. You can be searched by private guards entering a stadium, a shopping mall, or a school without triggering constitutional claims. The Constitution does require that the police have objective, individualized suspicion (or “probable cause”) to search you, your bag, or your car, but the Supreme Court has carved out some exceptions to the rule, such as border searches. Drunk-driving checkpoints and “near-border” stops are considered constitutionally permissible “brief seizures” because they promote special government needs beyond mere criminal law enforcement. Should you provide authorities during the “brief seizure” with some probable cause to search you further, the search is also deemed permissible. Thus, brief seizures outside shops or government buildings might not be unconstitutional if the courts choose to view them in the same ways airports, borders, and government buildings have been treated to date.
It’s worth noting here that U.S. police are already authorized to conduct searches without warrants in the case of “exigent circumstances,” situations where probable cause to get a warrant exists but there’s no time to find a magistrate. Example: The police pull your car over and you do something to suggest that you’re about to attack them. “Exigent circumstances,” “imminent harm,” and other general exceptions to the constitutional rights laid out here involve urgent, immediate danger. In much the same way that your free speech rights stop when you tell the police you have a bomb, there will always be situations in which dire emergency outweighs civil rights. It’s not clear whether in wartime this can become an exception that swallows the rule.
The right to assemble, worship, and speak: The German government has approved the lifting of Germany’s “religious privilege,” which gave religious groups protected status under the law of association. That privilege guaranteed that membership in a religious group could not be seen as a criminal offense. The British government has imposed restrictions on the dissemination of information, forbidden the wearing of badges and uniforms of terrorist groups, and also prohibited membership in any designated terrorist organization. Until recently, British authorities banned the broadcasting of “the words of any speaker” who claimed either to be a spokesman for the IRA or to support terrorism. Whereas criminalizing or attempting to ban certain types of speech, association, or religious affiliation might not be a problem in other democracies, the First Amendment of the Constitution should bar similar legislation in the United States. That said, during World War I, the U.S. government passed the Espionage Act, which made it a crime to criticize the government.
Racial profiling: Israeli authorities are allowed to single out travelers and citizens alike for questioning and searches based on nothing but racial origin. Vigorous racial profiling is cited by experts as one of the reasons Israeli airplanes are not hijacked. The U.S. Supreme Court has not yet established that racial profiling violates the equal protection clause of the Constitution. The court declined to hear a racial profiling case this week, and the federal courts of appeals currently differ on what constitutes racial profiling and when it’s unconstitutional.
Indefinite holding: The Canadian government imposed its War Measures Act in 1970 after being confronted by militant Quebec separatists during the FLQ crisis, which involved some terrorism and kidnappings. It allowed police to arrest and hold suspected terrorists without bail for up to 90 days. That law is still on the books, although its constitutionality has not been tested under Canada’s new bill of rights. France’s special anti-terrorism unit can hold suspects for questioning for 96 consecutive hours, of which the first 24 hours may include no contact with an attorney. Britain’s anti-terrorist legislation allows individuals to be detained for up to seven days without a court appearance. Congress’ proposed new anti-terrorism bill allows authorities to hold foreigners suspected of terrorist activity without charges for up to a week and increases penalties for terrorist activities, but the standard constitutional protections presumably still apply to criminal suspects, ensuring due process, the right to counsel, and the right to have charges brought and bail set within reasonable time periods.
Torture: Spain and Israel have been known to permit similarly lengthy internments of suspected terrorists without trial, with the added charm of using physical force to extract information and confessions. The British government lost an international court ruling in 1976 prohibiting their use of torture in interrogating suspected IRA terrorists. In 1999, the Israeli Supreme Court outlawed their previously sanctioned practice of allowing “moderate physical pressure” when interrogating suspects. Something akin to “gentle shaking” is still permitted under Israeli law, however, and Israeli authorities will not hesitate to “gently shake” members of suspected suicide cells. Both international and U.S. law prohibit the use of torture to extract information, although, again, under an “imminent threat” of serious harm, U.S. law may well sanction more than just gentle shaking.
Assassination: In its fight against terrorism, the Israeli government has also condoned “judicially sanctioned executions,” that is, assassination of terrorist leaders. The United States does not currently permit assassination, although this is not due to any constitutional barrier. It is established via an executive order that could be repealed at any time. Lawyers for the Clinton administration argued that the United States could legally assassinate Osama Bin Laden, even without repealing the executive order, since killing Bin Laden could be justified as either an act of war or self-defense—both justifications for murder under U.S. and international law.
Most nations are not restricted by a supreme constitution and an entrenched bill of rights, nor do they require any constitutional adherence to the notion of a separation of powers. The U.S. Constitution could stand as a barrier to some of these measures as long as the Supreme Court asserts itself. Historically, the high court has been more than generous in allowing the legislative and executive branches to have their unconstitutional ways during wartime. The court stood back while President Lincoln suspended habeas corpus during the Civil War, and it authorized the internment of Japanese-Americans in 1944. And, as is clear from the discussion above, under “exigent circumstances,” many, if not most, civil liberties can be constitutionally suspended. The real test of the new security bill—and the future of some of the measures outlined here—will not be whether they are “constitutional” in theory, but whether the court will find them unconstitutional during the exigent times ahead.
Thanks to Prof. Eugene Volokh atUCLALawSchool.