Expanding law enforcement discretion: how the Supreme Court's post-September 11th decisions reflect necessary prudence.

• Author: Allen, John M.

"We must find ways of reconciling security with liberty, since the success of one helps protect the other. The choice between security and liberty is a false choice, as nothing is more likely to endanger America's liberties than the success of a terrorist attack at home. Our history has shown us that insecurity threatens liberty. Yet, if our liberties are curtailed, we lose the values that we are struggling to defend." (1)

1. INTRODUCTION

   In April 1998, Zacarias Moussaoui received extensive training at an al Qaeda terrorist camp in Afghanistan. (2) In September 2000, Moussaoui, then an al Qaeda trained operative, inquired about training at a flight school in Norman, Oklahoma via a Malaysian email account. (3) A few months later, Moussaoui arrived in Chicago, effortlessly passed through United States customs after declaring $35,000 in cash, and proceeded to Oklahoma City, Oklahoma, where he attended flight-school classes. (4) In August 2001, Moussaoui paid almost $9,000 for flight simulator training on a Boeing 747 at Pan Am Flight School in Eagan, Minnesota. (5) Typical qualifications for flight training on a Boeing 747 flight simulator include a FAA Airline Transport Pilot rating or the foreign equivalent, employment by a commercial airline, and several thousand flight hours; Moussaoui had none. (6) After Moussaoui's behavior at flight school raised a veteran airline pilot and flight instructor's suspicions, the Federal Bureau of Investigation (FBI) field office in Minneapolis initiated an intelligence investigation on August 15, 2001, which eventually led to Moussaoui's arrest for immigration violations the next day. (7) Twenty-five days later, on the morning of September 11, 2001, al Qaeda members hijacked four passenger commercial airplanes and crashed them into various targets, including the World Trade Center Towers in New York and the Pentagon in Washington, D.C., killing thousands of innocent men, women, and children. (8)

   During those twenty-five days preceding the attacks, FBI agents with knowledge of Moussaoui's potential terrorist connections and radical ideas attempted, but failed, to secure a warrant to search the contents of Moussaoui's laptop. (9) Experienced federal agents plead with their superiors to search Moussaoui's laptop because they anticipated that it contained valuable information. (10) Agents did not obtain the warrant, however, until the September 11th attacks provided additional incentives to search his laptop. (11) A federal district judge eventually issued the search warrant, despite the fact that agents included no new information related to Moussaoui, other than the current terrorist attack on the United States. (12)

   During the Moussaoui investigation, FBI agents struggled to overcome "probable cause" hurdles established by a demanding United States Attorney's Office and to simultaneously characterize Moussaoui as an "agent of a foreign power," a requirement for obtaining a warrant pursuant to the Foreign Intelligence Surveillance Act (FISA). (13) Stringent evidentiary burdens prevented agents from searching Moussaoui's laptop--which contained data on commercial airline cockpit layouts and computer flight simulators, and phone numbers linking Moussaoui to Mohammed Atta, the leader of the September 11th hijackers, and Atta's former roommate, Ramzi Binalshibh, a Hamburg al Qaeda cell member and coordinator of the September 11th plot--until after the deaths of thousands of innocent people. (14) The availability of this information prior to September 11th may not have prevented the tragedy; however, if it were available the government may have paid more attention to the impending threat. (15) According to now-captured Binalshibh, had Khalid Sheikh Mohammed, the mastermind of the September 11th attacks, merely known of Moussaoui's FBI arrest, he would have cancelled the attacks. (16)

   The missed opportunity to search Moussaoui's laptop is indicative of the problems the United States faces to create policies balancing the protection of its citizens and maintaining the civil liberties essential to American democracy. (17) Moussaoui's case demonstrates how strict adherence to legal constraints may delay acquisition of pertinent and life-saving information. (18) Since September 11th, the United States has struggled to provide law enforcement with the effective tools to combat extreme radicalism while ensuring that national security and law enforcement measures do not compromise constitutional liberties. (19) Like the FBI agents investigating Moussaoui and struggling to satisfy legal requirements, many law enforcement officers constantly strain to attain the proper balance between protecting lives and avoiding infringement of civil liberties. (20) In response to the need to apprehend potential perpetrators and prevent future tragedies, American policy refocused on national security and law enforcement after the September 11th attacks. (21) America's current status as a nation-at-war fortifies this focus. (22)

   As the nation shifted its attention on security issues and government institutions implemented structural changes after September 11th, the courts also addressed these fundamental issues. (23) Since September 11th, the Supreme Court labored to interpret the Constitution that demands both protection of national security and civil liberties. (24) The Constitution's original formation represents a similar struggle regarding the necessity for providing effective common defense measures during volatile times. (25) During the Constitutional Convention, the Framers appreciated the need to establish effective national security in response to the Articles of Confederation's failure to ameliorate the issue. (26)

   A significant number of Americans believe that to effectively combat terrorism, it may be necessary to infringe on civil liberties. (27) Despite this understanding, many Americans believe the federal government has gone too far in the fight against terrorism by infringing on certain civil liberties, especially through the increased use of wiretapping and the compromise of enemy combatant's liberty protections. (28) The Supreme Court is commonly the final arbiter in these security versus liberty debates. (29)

   This Note will examine Supreme Court decisions involving the tension between law enforcement and liberty interests since the tragic attacks on September 11th. (30) Part II will begin by examining the nature of terrorism-related law enforcement before September 11th. (31) Part II.A will discuss the use of conventional legal avenues to combat terrorism. (32) Part II.B will focus on how the September 11th attacks created a need for change in law enforcement to contest new, more dangerous forms of terrorism. (33) Part II.C will highlight how September 11th changed American policy in regard to terrorism prevention. (34) Part II.D will spotlight major Supreme Court decisions since September 11th involving law enforcement and national security interests. (35)

   Part III will analyze these decisions and highlight their significance. (36) Part III.A will analyze the specific need for proactive law enforcement and for certain legal policy changes in national security. (37) Part II.B analyzes the impact of Supreme Court decisions involving terrorism-related law enforcement. (38) Part III.C emphasizes the changes demanded by the Supreme Court decisions, even against the backdrop of calls for civil liberty protections. (39) The Note will conclude that the institutional reformation of the Supreme Court reflects the idea that the prevention of terrorism, supplemented by well-trained law enforcement, should be this country's primary objective, as opposed to maintaining excessive legal standards that restrict crisis prevention and lead to the mere prosecution of terrorists. (40)

2. HISTORY

   1. The Aftermath of September 11th: Proactive Law Enforcement Becomes the Necessary Norm

      Before the September 11th tragedies energized a national movement to protect the nation from terrorism, law enforcement dealt with acts of terrorism similarly to other crimes. (41) After the September 11th attacks, the nation and its law enforcement agencies quickly appreciated that reacting to terrorists through the regular criminal justice system failed to provide adequate protection and would not prevent future terrorist attacks on American soil. (42) Thus, the current policy shifted from taking responsive measures to terrorist activity through the criminal justice system to establishing proactive measures of force and investigatory procedure. (43)

      Accordingly, in its decisions after September 11th, the Supreme Court recognized the necessity for changes to the traditional model of terrorism prevention through after-the-fact prosecutions and granted greater deference to law enforcement. (44) The decisions gave law enforcement personnel greater discretion in using preventive techniques directed toward stopping terrorists and other targeted criminals before their plans come to fruition. (45) Although many of the Supreme Court cases decided after September 11th did not mention terrorism, the images of the devastating terrorist attacks have shaped even routine law enforcement situations. (46)

      One law enforcement case, however, did mention terrorism and is indicative of a general feeling on the Court. (47) In Illinois v. Caballes, (48) the exterior of the respondent's car was sniffed by a narcotics-detection dog after he was pulled over for speeding and led to the discovery of marijuana in the car's trunk. (49) The Court held that where the lawful traffic stop was not extended beyond a normally reasonable time, use of the narcotics dog did not infringe on the driver's Fourth Amendment rights. (50) Justice Souter, in vigorous dissent, evaluated the case differently and argued that use of the dog to ascertain the presence of narcotics was an unauthorized search incident to the stop because no particular suspicion...