If Legal Restrictions Are Hindering the Investigation of the San Bernardino Shootings, Who Is to Blame?

SAN BERNARDINO, CA - DECEMBER 07:  Officials put up police tape in front of the builiding at the Inland Regional Center were
SAN BERNARDINO, CA - DECEMBER 07: Officials put up police tape in front of the builiding at the Inland Regional Center were 14 people were killed on December 7, 2015 in San Bernardino, California. FBI and other law enforcement officials continue to investigate the mass shooting at the Inland Regional Center in San Bernardino that left 14 people dead and another 21 injured on December 2nd. (Photo by Joe Raedle/Getty Images)

Many years ago, as a young associate in a law firm, I had to review an obscure city ordinance having something to do with the placement of TV cables on city property. I remember being baffled by a provision at the end stating that the ordinance had been deemed an emergency measure whose passage was vital to the health and safety of the community.

I soon learned why. The city charter required a lengthy process of public hearings for most ordinances, but "emergency" measures were exempt--and, as might have been expected, the "emergency" tag ended up being liberally applied.

I thought about that ordinance when I read about the debate over whether recent reforms, introduced in response to concerns over the government's extensive use of its surveillance powers, were hampering governmental efforts to prevent and investigate events such as the San Bernardino attack. It may well be that legal limits on the government's investigatory powers are interfering with efforts to deal with genuine security threats. But if that's so, government agents themselves are at least in part to blame, because it's their historical overuse of "emergency" powers that necessitates the imposition of such limits.

There's a fierce national debate over how intrusive we should allow the government to be in protecting against national security threats. Although there's a wide spectrum of views with principled people on both extreme ends, there appears to be a general consensus as to two points:

  • For "ordinary" law enforcement cases--that is, domestic cases without national security implications--there should be real, enforceable limits on the government's ability to intrude into civilians' affairs. For example, government agents shouldn't be routinely able to pick civilian targets indiscriminately and listen in on their phone calls, electronically track their movements, or search their private emails. Some particularized justification should be required for such tactics, and there should be some meaningful way of monitoring the government's compliance with the governing law.
  • Where genuine national security threats such as invasions or terrorist attacks are at issue, there should be some relaxation of the rules applicable to the government--as to both what agents are allowed to do, and the degree of open public scrutiny over what they're doing.
  • With those two principles in mind, there seems to be an obvious solution--giving the government enhanced powers and reduced oversight in true national security situations. That sounds good, and it's basically the system we've put in place, through the Foreign Intelligence Surveillance Act and other legislation. The problem is that it really doesn't work well in practice.

    Government officials of all stripes and party affiliations have proven themselves entirely incapable of self-restraint in their uses of supposedly "extraordinary" powers. This may simply be human nature at work. Particularly in an adversarial context such as law enforcement, giving agents game-changing tools and then trusting them to keep them on the shelf in all but a narrow category of cases may have been a fool's errand all along. Realistically, we should have expected that they'd end up using these tantalizing powers pretty much indiscriminately.

    I've seen this happen in my own practice. Several years ago, for example, I represented an Iranian citizen, living in the United States, who had set up a charity to help impoverished children in Iran. He first came to the government's attention right around the time of 9/11, and agents suspected that the charity was a front for funding terrorist activities.

    The government invoked the full panoply of FISA-approved measures to investigate this charity, including wiretaps and invasive electronic monitoring. This actually could have been a good thing, as the evidence generated through this investigation demonstrated that the charity was in fact entirely genuine. But although this was virtually indisputable from an early point, the government continued an extraordinarily intrusive, FISA-backed investigation for more than eight years. To justify the continued use of these supposedly extraordinary powers, up through the very end of the case the government made ludicrous, sinister-sounding accusations of terror connections--accusations that were ultimately laughed out of court. If the system had been working properly, someone along the line would have intervened to stop the use of these powers once it was clear that they were no longer justified, but nothing like that ever happened.

    This process--in which the government (1) asks for enhanced powers to combat a serious problem, (2) promises to use the powers only where appropriate, and then (3) ignores those limitations as soon as the powers have been granted--is disturbingly common, and pops up in a variety of contexts. The original federal Wiretap Act, for example, initially included a number of significant limitations on agents' wiretapping and eavesdropping capabilities, but these protections have been gradually eroded and those that remain are enforced lukewarmly by courts. Similarly, the federal RICO act and state equivalents, which give government agencies enormous powers and were theoretically enacted to combat sophisticated organized crime syndicates, have ended up being used in garden-variety cases by prosecutors who realized they provided easier routes to convictions. (I once met with a client facing a state RICO case arising out of a handful of misdemeanor hunting violations.)

    I don't know whether our current setup strikes the right balance between privacy and security. I do know, however, that our efforts to balance these concerns will continue to be frustrated by government officials and agencies who routinely use "extraordinary" powers in ordinary cases.