The phone call seemed innocuous. Although it came from the Supreme Court of the United States, early in 2001, it wasn’t Chief Justice William Rehnquist on the line, but a court administrator, asking if Judge Edward Leavy would be willing to serve in an obscure federal post. The Foreign Intelligence Surveillance Court of Review, Leavy was told, was a court with a single purpose, to rule on government appeals when agents weren’t allowed to wiretap or search a suspected terrorist or spy. Created in 1978, the court had never actually heard a case.
An ideal assignment, thought Leavy, who promptly accepted the offer.
Then came September 11.
Leavy, who earned a bachelor’s degree at University of Portland in 1951 before studying law at Notre Dame, was semi-retired in 2001, but he and the Surveillance Court were jolted into furious action following the terrorist murders. More than 13,000 warrants in a row were issued before the Surveillance Court finally denied a request, in a ruling noting that the FBI had misled the court dozens of times before. Leavy was flown immediately to the U.S. Justice Department’s head-quarters in Washington to hear the government’s appeal — Sealed Case No. 02-001. He and two other judges listened to the arguments in a heavily guarded, steel-walled, windowless room. No transcription of the hearing is available to the public. A decision was made, but Leavy, for ethical and legal reasons, cannot and will never speak of it.
So it is that a boy born and raised on an Oregon farm, youngest of ten children, a boy who didn’t see an electric light until he was five years old, has become embroiled in one of the most contentious issues in American history, the intense debate over the government’s responsibility to defend its citizens versus those very citizens’ rights to privacy and freedom of thought, action, and movement. Civil liberties, intelligence-gathering, national security, the Fourth Amendment, unreasonable search and seizure...the words and phrases swirl and battle.
Fact: no significant terrorist attacks have happened in America since 2001.
Fact: American telecommunication companies have for seven years secretly sent billions of their customers’ e-mails, text messages, and telephone calls directly to the National Security Agency.
Fact: Libraries and bookstores — including many university libraries and bookstores — have refused government efforts to search their databases to determine what books clients are reading and what Internet sites they are visiting.
Fact: A number of American anti-war groups, including the Quakers, have discovered names of their members in a Department of Defense database that labels them as “potential terrorist threats,” ripe for surveillance.
Combined with revelations of prisons at U.S. military bases that sidestep judicial oversight — Guantanamo Bay in Cuba and Abu Ghraib in Iraq, for example — one might reasonably wonder what American judges are doing to keep James Madison’s Federalist Papers warning from becoming prescient: The accumulation of all powers, legislative, executive, and judiciary, in the same hands...may justly be pronounced the very definition of tyranny...And one might ask a man like Ed Leavy, who has devoted a lifetime to serving law and nation, is not the American judicial system intended to serve as a crucial check against erosion of constitutional values, particularly if the legislative and executive branches are acting in league?
Ed Leavy’s main office is in the oldest federal building in the Pacific Northwest, Pioneer Courthouse in Portland, a National Historic Landmark. Leavy’s chambers, on the second floor, look out on the city’s prime public space, Pioneer Square, and the core of his beliefs on privacy resonate with what he sees below him at work. “The best rule of thumb,” he says, “is that there is nothing wrong with anybody listening to anybody else, unless there is a legitimate expectation of privacy. If somebody goes out in this square and does some act that I can see from my window, what expectation of privacy is there? But I couldn’t be sitting up here with sophisticated listening devices. That’s a different story. Those people might have a legitimate expectation of privacy if they are whispering to each other. There are a lot of things we do that are perfectly legal that we wouldn’t do in public. If there’s no crime involved, government agents have no right, for example, to listen to what I’m talking about with my wife or child in our living room.”
Laws that protect such privacy, though, appear to have fallen behind data-gathering technology, and you don’t have to be James Bond to operate such gadgets; a cell phone today would have been an exotic spy utility device 20 years ago, with its miniature audio recorder, camera, and instant access to information on computers worldwide. And people today very consciously and willfully share more of their lives in public, posting intimate details on MySpace pages and video clips on YouTube. But for all the opening of society, fears of terrorist attacks seem to have drawn many Americans — most? — into preferring perceived safety over outrage at increased secret surveillance.
For Leavy, though, technology is not the most significant factor in the privacy debate; public safety and individual freedom are the critical ideas at play, and he does not agree that they are eternally at odds. He notes that Abraham Lincoln orchestrated a program to eavesdrop on telegraph transmissions, and every administration since has developed more sophisticated and invasive techniques; today’s national intelligence community (directed by Mike McConnell, who declined to be interviewed for this story), spent $43.5 billion on spying and surveillance in the past year, not including military intelligence, and employs some 100,000 people.
To Leavy, the government’s sworn responsibility to protect its citizens trumps most concerns about privacy. “Would we just be sitting by if we learned on September 10, 2001, that these sons-of-bitches are going to hijack planes and run them into buildings? My hope is that [agents] would arrest the people the night before.”
But such clarity for some is far murkier for others. During the first 25 years of the Foreign Intelligence Surveillance Act, reported the Washington Post, judges approved about 19,000 warrants and rejected only five. Could it really be that 18,995 invasions of privacy were legitimate, and a mere five intrusive?
Fact: Legislation like the Patriot Act and the Protect America Act inarguably reduce the privacy of American citizens and augment the power of the government to spy on its citizens.
“None of this makes us safer,” says Caroline Fredrickson, director of the American Civil Liberties Union’s legislative office in Washington, D.C. “It simply allows the government to engage in much more intrusive monitoring of Americans’ private lives... The opportunity for abuse [of that power] is so great that it will inevitably happen. We cannot be complacent. Once it starts with the justification of keeping us safe from terrorists, that can [go] anywhere. We have a variety of religious beliefs and different philosophies on life. Once [the government] is able to treat those choices and essential elements of our humanity as the cause for surveillance, then we’re all in peril. The next president may decide that Buddhists or reformed Jews or any other group might cause us harm.” The accumulation of all powers, legislative, executive, and judiciary, in the same hands...may justly be pronounced the very definition of tyranny...
Ed Leavy cannot talk about the specific details of his lone Foreign Intelligence Surveillance Court of Review decision, and the fact that he has heard just one government appeal could be another sign of the weakened role of the judiciary. But he can say that the case involved the imaginary wall the government had created between criminal evidence-gathering and prosecution, and that process as it relates to foreign intelligence.
“Sometimes they merge,” Leavy says, “sometimes they overlap. If someone is conspiring to hijack an airplane, and we consider this a foreign intelligence investigation, what are we going to do with this information? We’re not going to just say we’re that much smarter now; presumably, we’re going to arrest somebody and not keep those things in separate worlds.”
But what’s troublesome about removing that wall, Leavy acknowledges, is that agents invariably will take the easiest path to a warrant. That typically is the foreign intelligence path, which doesn’t require as many specif-ics about what agents hope to find through the surveillance. Illustrating this conflict, Portland attorney Brandon Mayfield challenged the Foreign Intelligence Surveillance Act, as amended by the Patriot Act, after he mistakenly was connected by the FBI to the Madrid train bombings in 2004. In her U.S. District Court late last year, Judge Ann Aiken ruled that removing such a wall between criminal and foreign intelligence investigations essentially permits the executive branch of the government to conduct surveillance and searches of American citizens without probable cause, a violation of the Fourth Amendment.
“For over 200 years,” noted Aiken, “this nation has adhered to the rule of law — with unparalleled success. A shift to a nation based on extra-constitutional authority is prohibited, as well as ill-advised.”
Leavy agrees with the sentiment but disagrees with the findings, a difference in opinion that reminds him of what he learned in a metaphysics course he took at University of Portland (where, he notes, his grandson Matthew Brown is a junior). “In meta-physics, you had to understand the terms you were using,” he said. “You cannot understand this act unless you start with the definitions. This is a very, very difficult subject to form a judgment about, because it gets complex in a hurry. I can understand people getting passionate about it on both sides. At what point do you say we can’t listen to communication? Surely we would not criticize anybody for having cracked the Japanese naval code or Germany’s coded transmissions in the Second World War. Would that be classified as wiretap in this day and age? At what point do you draw the line?” It is the very essence of the American idea, making its way in a complex and violent world: What is the balance between safety and freedom?
Brett Oppegaard is a writer in Oregon. He earned his master’s degree in communication on The Bluff while working as a newspaper reporter. For more of his work see brettoppegaard.com.