Instead, Scalia compellingly explains, the purpose of DNA testing is to solve unsolved crimes. It is to seize information from inside the envelope, so to speak (a physical intrusion of the arrestee’s person is required for swabbing), without what the Fourth Amendment presumptively mandates: a judicial search warrant issued only after probable cause of criminality has been shown.
This gets us back to the NSA. Justice Scalia points out that, when the real purpose of DNA testing is considered, it turns American criminal justice on its head. The Fourth Amendment puts the burden on government to come forward with a particularized suspicion of a suspect, established by probable cause that he has committed a crime, before the government may search for and seize evidence. The DNA swab, instead, assumes the arrested person, despite being presumed innocent, is in a category of persons who are suspicious a priori, such that their DNA is apt to match DNA collected at the scenes of unsolved crimes. That’s not particularized suspicion; it is more like a “general warrant,” which was anathema to the Framers.
So does that mean there must be probable cause that a person is a national-security threat before the NSA puts his information in a database just like, according to Justice Scalia, there should be probable cause that the arrestee committed the unsolved crime before police get to swab for DNA?
No. Let’s put aside for the moment that Scalia’s opinion is a dissent and assume, as I do, that he has the better of the argument. His theory proceeds from the inarguable premise that the warrant requirement is triggered by very intrusive searches — the Constitution expressly protects the American people only in their “persons, houses, papers, and effects.” Modern Fourth Amendment jurisprudence has expanded this ambit to include matters or items in which there is an “expectation of privacy” judicially deemed “objectively reasonable.” Notwithstanding the caterwauling of privacy activists, though, the courts have forcefully rejected the notion that telephone metadata qualifies. The content of conversations? Yes. The numbers dialed, the duration, the fact that the conversation took place? No.
There is, of course, more to the story, as my friend Jonah Goldberg points out in a characteristically insightful column. Perhaps more significant than what the law permits is whether living on the outer margins of what it permits is wise.
I doubt people worried about the phone books on my prosecutor’s desk any more than I did, even though they surely were warrantless collections of data pertinent to many more innocent than suspicious people. Why? Because people assumed, just as I assumed, that I would resort to the data only in connection with investigations based on bona fide, particularized suspicions of wrongdoing. It was inconceivable that I’d pick up the phone book, open to a random page, pick out an unlucky name, and start issuing subpoenas just because I could.
In the DNA case, both Justice Scalia and the majority (in the opinion written by Justice Anthony Kennedy) acknowledge that our constitutional law has also long accepted warrantless searches outside the criminal-justice process — meaning searches whose objective is not to find evidence of a crime to be used against an accused at trial. These are called “special needs” searches. They include, for example, drug-testing at public schools or railroads.
Why do we permit the randomness of special-needs searches to substitute for particularized suspicion? It is more a matter of politics than law. There is, that is to say, a societal consensus that a higher purpose justifies dispensing with individual, subjective expectations of privacy. When there is such a higher purpose, our law permits highly intrusive searches. Not just metadata — these are searches that would undoubtedly be prohibited, absent a judicial warrant, if the aim were to prove a crime.
The national security of the United States is the highest societal purpose we have as a political community. When the public believes it is threatened, and especially when it believes we are a nation at war, it is beyond cavil that information unprotected by the Fourth Amendment may be collected by the government. Indeed, it should be collected if it can be used for our protection.
If this were September 12, 2001 — or maybe even Boston on April 15, 2013 — there would be no NSA controversy.
But what if the politics is such that an American president blinks his eyes and pronounces the end of a war the enemy is still fighting? What if his administration effectively opens the Oval Office phone book and capriciously pores over the tea-party pages? That is when it becomes easy to convince oneself that the government has become more dangerous than the terrorists.
It may not be true. But politics frequently isn’t . . . and when it’s not, it doesn’t much care what the law says.
— Andrew C. McCarthy is a senior fellow at the National Review Institute. He is the author, most recently, of Spring Fever: The Illusion of Islamic Democracy.