Book Review: Dangerous Precedents

December 6, 2011 • Commentary
This article appeared in the December 2011 issue of California Lawyer.

The Rights of the People: How Our Search for Safety Invades Our Liberties
By: David K. Shipler
Times Books, $27.95, 400 pages

For 40 years our nation has been engaged in a civil war: a war waged in our streets and neighborhoods, schools and workplaces; a war that every day inflicts civilian casualties, either through direct violence or through petty intrusions into freedoms the Constitution purports to shield. This is the war on drugs, America’s greatest policy failure, and as a Soviet‐​era Moscow correspondent for the New York Times author David Shipler has disturbingly appropriate credentials for chronicling its devastating effects on Americans’ civil liberties.

The war on terrorism, Shipler notes, has led to dramatic violations of constitutional principles, such as the now decadelong internment of prisoners at Guantanamo Bay and the expansion of executive power to surveil citizens within U.S. boundaries. But according to Shipler, the war on drugs and other common crimes has led to “everyday infringements, less dramatic yet dangerous,” that “slowly erode individual rights by working gradually into precedent and practice.” It is these latter infringements — incremental, permanent deviations from norms enshrined in the nation’s fundamental law — that are more troubling. Dramatic illegalities are by nature unusual; leaders are spurred to them by temporary emergencies. But the 40‐​year war on drugs has ground away at constitutional limits to the point that today, Shipler says, “ ‘the right of the people to be secure in their persons, houses, papers, and effects’ can be overcome by the anonymous assertions of a questionable character who is motivated by cash from the police or leniency from the prosecutor.” And that’s when the cops actually bother to get a warrant — today the exception, rather than the rule.

Shipler surveys — with exceptional accuracy for a nonlawyer — the sad state of the law regarding searches and seizures, interrogations, and confessions; he also reports from the scene, riding the rough neighborhoods of Washington, D.C., with police officers who are quite conscious of what pressures they can exert, and what half‐​truths they can employ, to circumvent the spirit, while staying within the letter, of the law. In fact, by exploiting Fourth Amendment precedents, police officers can now search more or less at will. In Atwater v. City of Lago Vista (532 U.S. 318 (2001)), for example, the Supreme Court held the Constitution was not violated when a police officer handcuffed and arrested a Texas mother who was driving without wearing a seat belt. Because officers can search an arrested suspect and anyone in her immediate vicinity, the Atwater ruling gives police almost unlimited search powers. As then — Justice Janice Rogers Brown observed in People v. McKay (27 Cal. 4th 601, 632633 (2002) (concurring opn.)): “In the pervasively regulatory state, police are authorized to arrest for thousands of petty malum prohibitum ‘crimes’ — many too trivial even to be honestly labeled infractions.… Since this indiscriminate power to arrest brings with it a virtually limitless power to search, the result is the inevitable recrudescence of the general warrant.”

Worse, the U.S. Supreme Court has held that warrants are not required when prosecutors seek to obtain information from third parties to whom a defendant voluntarily yields it. Since many people do not realize what information they are giving away — location information automatically beamed to their cell phone companies, for instance — they are far more vulnerable to snooping than they realize. As courts expand opportunities for observation and narrow the scope of protected privacy, social norms also migrate, by minute degrees, further and further from constitutional promises, transforming them eventually into quaint antiquities.

This is as great a threat to the innocent as it is to the guilty: Witness the case of Oregon lawyer Brandon Mayfield, wrongly arrested in 2004 for aiding in the Madrid train bombings. Mayfield had the misfortune to reside at the intersection of the lines prosecutors drew when they thought they were connecting the dots. In actuality, their zeal and imagination led them to spy on, and arrest, an innocent citizen who had never even been to Spain — a fact the FBI interpreted as proof he’d used an alias. After it was revealed that the fingerprint similarities on which the agency relied were misidentified, the government apologized and paid Mayfield a $2 million settlement. But it can never restore his sense that constitutional protections are meaningful.

“Of all the enemies to public liberty,” James Madison said, “war is, perhaps, the most to be dreaded.” The Rights of the People is a sobering and crucial reminder of the gradual erosion of liberty now, as America’s longest, cruelest war grinds toward its first half‐​century.

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