The Magazine

Treating Enemies Like Criminals

Aug 12, 2002, Vol. 7, No. 46 • By DAVID TELL, FOR THE EDITORS
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Notice first, though: Were it true, as it is so commonly and cavalierly suggested, that Bush, Ashcroft, and Co. are heedless of or even outright hostile to the Bill of Rights, then fear of civil libertarian reaction would indeed have been entirely irrelevant to their decision-making about Moussaoui. And consider a diametrically opposite possibility, as well: Were naked PR imperatives--rather than more elevated deliberations over legal principle, say--the paramount factor in Bush administration terrorist detention policies, then all the detainees would by now have been indicted, not just Moussaoui and a handful of others.

Our White House and Justice Department must be a tad more complicated than their critics let on. And that's putting it mildly. Properly considered, the case of Zacarias Moussaoui reveals a Bush administration inclined, both by instinct and conviction, to proceed where feasible--even in the absence of public pressure and even when the law does not require it--with quite striking caution about the "rights" of terrorism suspects.

Back at the beginning, last August, Coleen Rowley and other agents in the FBI's Minneapolis field office wanted permission to conduct a secret search of Moussaoui's apartment and computer. But the Washington headquarters types said no, reasoning that the Bureau did not have requisite "probable cause" to believe that the proposed searchee was currently and directly operating for an identified terrorist organization. This sequence of events, which left Moussaoui immune from serious law enforcement scrutiny until after the September 11 hijackings, has since entered legend, of course. Agent Rowley, for instance, has become a "whistleblower" hero, star of splashy congressional hearings on how the FBI and its Justice Department superiors misunderstood and thus misapplied the "probable cause" standard embodied in the Foreign Intelligence Surveillance Act of 1978 (FISA). "Everybody knows" the feds should have been all over Moussaoui from the git-go.

But even this much is a ridiculous cartoon, as we have previously argued in these pages. The text and intent of FISA are reasonably clear. Agent Rowley was wrong; Washington was right: Last August, she and her Minneapolis officemates did not have "probable cause" to believe Moussaoui was actively working for a specific terrorist group. (Until a few weeks ago, in fact, when he suddenly pledged "bayat" to Osama bin Laden in open court, circumstantial evidence and common sense alone tied Moussaoui to al Qaeda.)

And there is more to say. The whole debate about FISA assumes--and the Bush administration officially shares the assumption--that executive branch conduct of national-security related physical and electronic surveillance may properly be regulated by such a legislative enactment in the first place. This is a dubious proposition, as it happens. The judiciary, for its part, has long and consistently refused to intervene against the executive where such matters are concerned, holding that the president retains an inherent and plenary power to protect the nation against foreign threat as he sees fit. One branch of our government cannot lawfully circumscribe the inherent and plenary powers of another. Insofar as it pretends to do so, FISA would appear to be unconstitutional. Nor does the Constitution independently impose any obvious limitation on a president's authority secretly to search something like Zacarias Moussaoui's laptop. The Fourth Amendment's "probable cause" requirement applies to "warrants" issued in connection with evidence employed in a criminal proceeding. It does not apply globally. It does not apply, for example, to searches or seizures designed to prevent somebody from crashing an airplane into the World Trade Center. And it does not apply to illegal aliens, like Moussaoui, at all.

In other words: The FBI might quite reasonably have pursued Zacarias Moussaoui last August, FISA notwithstanding, but did not. One year later, a mainstream, hardly crazy, civil-liberties-respecting Bush administration might at very least be asking Congress, also quite reasonably, to relax FISA's "probable cause" strictures--so that future Coleen Rowleys can snoop on future Zacarias Moussaouis without "violating" a law that likely isn't constitutional anyhow. But the Bush administration isn't doing that either. Republican senator Mike DeWine has proposed such an amendment to FISA, and even Democrats like Pat Leahy say they're open to the idea. Leahy's is too rough a constitutional sensibility for George W. Bush and John Ashcroft, though. At a hearing last Wednesday, CIA and Justice Department representatives told the Senate Select Intelligence Committee that DeWine's idea was inconsistent with the administration's vision of the Fourth Amendment.