Civil Liberties, From D.C. to the Newton Library

Scanning the interweb this morning, Bostonist saw that U.S. Attorney General Alberto Gonzales will testify today before a Congressional committee investigating the legality of the President's "I'm-above-the-law" theory of constitutional interpretation. While commentators have suggested that the hearings themselves are a testament to the shaky ground the President is on (since it was Republican Arlen Specter who called for the inquiry), we can't help but see the whole thing as a testament to the skill with which the President and his handlers have manipulated the debate: After all, who could seriously think that when our Constitution provides for three equal branches of government, the President could really be allowed to do whatever he wants, no matter what Congress or the courts say?

Then we read a related editorial in the Globe by local lecturer and intellectual Richard Cravatts, and we began to understand. Cravatts lambastes the librarian in Newton who last week refused to let FBI agents seize library computers without a warrant. Ordinarily, Bostonist wouldn't bother to take issue with a particular op-ed piece (because, well, who the hell are we, really?), but every now and then, well, we just have to. Cravatts's piece seems to us to exemplify the wrong-headed approach to constitutional rights that has allowed the President's crazy wiretapping policy to seem almost reasonable, and it deserves a grumpy rant from us. (Warning: Click below only if you are prepared for some preachy civil-libertarian claptrap.)

Photo: An old postcard of the Newton Public Library, courtesy of . . . the Newton Public Library.

So Cravatts lambastes the Newton librarian for misunderstanding privacy rights and using them as a poor excuse to keep the FBI from apprehending terrorists (there was a bomb-threat at Brandeis that the FBI traced to a computer in the Newton library). That seems reasonable at first, but it's the same kind of thinking that underlies the President's theory of his own power: He sees the threat, he acts to protect us, and anyone who gets in the way is elevating something ephemeral and silly like constitutional rights above the concrete importance of personal safety.

Here's where Cravatts goes wrong: He says it's a well-accepted legal truth that once someone makes information public, that person no longer has an expectation of privacy regarding that information - what Cravatts calls "diffuse it and lose it." But this is only true when a person shares information and the person with whom he shares the information passes it on freely to the authorities. If Bostonist sends an e-mail our friend Jonelle telling her where we hide our contraband and weapons, and Jonelle goes straight to the Feds, we're S.O.L. Likewise, if we're riding the T and loudly tell someone on our cell phone to move the cocaine from the cupboard to the basement, the good citizens who overhear us can turn us in. But if Bostonist e-mails Jonelle and she keeps mum when the men in trench coats come knocking, it's her rights that are at issue when they want to seize her computer, not Bostonist's. The same is true with the Newton library: That bad bad person who sent the bomb threat may not be able to get evidence from the Newton computers thrown out in court, but the librarian has as much right to resist a search without a warrant as anyone - all the more so when the library has promised its patrons that it will keep their communications private.

And that's where Cravatts's harangue of the librarian dovetails with the President's theory of his unstoppable power to search, wiretap, and generally do as he pleases: Cravatts chides librarians for pretending to understand and enforce complex constitutional issues outside their area of expertise, then implicitly suggests that such judgments are better left to law enforcement officers. In fact, such judgments are the province of (surprise!) judges, which is why FBI agents and cops have to get warrants from judges before doing searches. In true emergencies, law enforcement officers can always conduct searches over the objections of librarians, homeowners, drivers, or whoever (they have guns, after all), but they run the risk of having the evidence they discover thrown out. (The FBI agents in Newton, perhaps wary of this, opted to wait for a warrant rather than risk losing good evidence.)

This system lets authorities gather the evidence they need without subjecting citizens to search and surveillance at the whim of those authorities. It's the same system that is meant to apply to the President, for the same reasons. The change in the system that Cravatts (and Bush) advocates doesn't really make us safer, it just transfers the decision-making from a party that doesn't really care whether the search happens or not (a judge) to a party that is actively trying to do the search (law enforcement). We think that's a wicked-bad idea.