RUTHFULLY YOURS

“This pandemic is an affront [Zumutung] to democracy because it restricts our existential rights and needs,” German Chancellor Angela Merkel told Germany’s parliament April 23. That poignant formulation comes from the chief executive of a country whose response to Covid-19 was among the world’s most successful, with only 64 deaths per million of population compared to 148 in the United States, 423 in Italy and 335 in France. Dr. Merkel, who holds a PhD in quantum chemistry, added that the world is not at the end of the pandemic but just at the beginning: “We shall have to live with this virus for a long time.” Although the infection rate has fallen, “this interim result is fragile. We are treading on thin ice – on the thinnest of ice,” Merkel said.

The affront to which the German Chancellor referred is the restriction of movement and public gatherings, but a far greater affront to democracy is in the offing, namely universal mandatory testing for Covid-19, and tracking of individual disease carriers, the equivalent of a search of one’s person and premises. This conjures visions of totalitarian dystopias, although democratic South Korea has been among the most aggressive practitioners of tracking via smartphone location.

There probably is no way to prevent the spread of Covid-19 except by locating and isolating every single individual carrier. Perhaps 40% of all cases are asymptomatic but nonetheless contagious, we know from Iceland and a handful of cities where the entire population was tested. That makes conventional tracking methods useless. Merkel has been advised by her medical crisis team that herd immunity never may be achieved, or if it is, only after a long period of time, because it is impossible to determine whether human antibodies provide much protection against infection. For the same reason, it is simply not known whether a vaccine will be found, let alone whether any vaccine will be effective.

Letting the virus run its course carries a horrific risk. Contrary to first impressions, this is not a form of pneumonia, but a disease that prevents the body’s organs from absorbing oxygen. It can attack internal organs as easily as the lungs, and the risk of an epidemic of deaths by organ failure is too great to accept.

The alternatives come down to three. First, do nothing and accept the risk of death on the scale of the 1919 influenza pandemic. Second, lock everyone down indefinitely to reduce the rate of infection. Third, test everyone and track every prospective carrier via smartphone location. All three are horrible. We cannot all stay home forever and shut the economy. And if we give emergency powers to governments to compel virus tests and track our location, how will we take those powers back if and when the epidemic is over?

China brought the epidemic under control quickly in large part because it has tracked the location of every smartphone in the country for years, and matched location to online purchases and social media postings. Adding the result of virus tests was a minor task given the surveillance infrastructure already in place. Then in February, Tencent and Alipay introduced a smartphone app that required users to input their body temperature and Covid-19 test status. The app generates a “green” screen for virus-free users. Local Communist Party organizations install video cameras at the door of quarantined individuals to ensure compliance.

Westerners in general and Americans in particular will never tolerate this degree of surveillance. Protests against shelter-in-place orders are spreading in the United States, with the encouragement of the Trump Administration. Attorney General William Barr told a radio interviewer April 20 that enforced quarantines and other drastic public health measures adopted by some states place “unprecedented burdens on civil liberties,” adding, “When a governor acts, especially when a governor does something that intrudes upon or infringes on a fundamental right or a Constitutional right, they’re bounded by that.”

But is there a legal basis to compel tests and to track carriers? That’s unclear.

Germany’s Basic Law gives the authorities considerable latitude for search of private premises under urgent conditions. The American Constitution, by contrast, protects against “unreasonable search and seizures. It requires due process: “No warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Does this rule out mandatory testing? Probably not, if the US follows Justice Anthony Kennedy’s opinion in Maryland vs. King (2013), which affirmed the right of police to take DNA samples from arrested suspects. That was a search, Justice Kennedy averred, but not an “unreasonable” one. By extension, the authorities could decide that all of us are suspected of carrying the coronavirus and equally subject to a reasonable search.

I asked the Constitutional scholar Thane Rosenbaum, now Distinguished University Professor at Touro College, for his view. He responded by email:

“Yes, such state action would clearly invite 4th Amendment challenges because it raises search and seizure concerns. But remember two things: It’s not an equal protection or arguably even due process matter because no one group of people are being singled out.  Everyone would be subject to these orders.

“More importantly, the Constitution is equally clear that the President and federal government are responsible for the national defense. This is why Donald Trump keeps asserting his executive authority in declaring national emergencies: travel ban, wall-building, and now Covid-19. It won’t always work, but we often see restrictions on certain individual liberties that are otherwise inviolable during times of national emergency. (The Patriot and Intelligence Reform and Terrorism Prevention Acts are two very good recent examples.  Without 9/11, neither of them would have been contemplated, no less received any blessing from Congress.)

“So here we have a global pandemic. The police powers of the state, and the government’s national defense powers, could be invoked to override the individual liberty safeguards and guarantees that would otherwise be controlling.”

Constitutional scholar Thane Rosenbaum

The trouble is that the enhanced powers of US intelligence agencies invited abuse. The US National Security Agency repeatedly exceeded its mandate. The Edward Snowden leaks of 2013 showed that the NSA among other things had surveilled US citizens’ use of the Internet as well as telephone calls on an enormous scale.

The Foreign Intelligence Surveillance Act of 1978 established secret FISA courts to issue warrants to surveil US citizens suspected of nefarious foreign connections. This was used by rogue FBI agents to bug the Trump presidential campaign and set in motion the now-discredited impeachments charges against President Donald Trump. Professor Angelo Codevilla, a former Senate Intelligence Committee chief staffer, now proposes that the US abolish both the FISA courts and the Central Intelligence Agency – and I agree with him.

There is no magic formula that will produce rules which protect individual life against a manifest threat – in this case, a virus – while protecting individual citizens against power abuse by state agencies. The contentious American Constitution provides a rough and tumble solution: The Executive has broad police powers in time of national emergency, but they must (or at least should) be specified by Congress. Citizens who feel oppressed by these powers have recourse to the courts, whose job it is to determine whether a search, for example, is unreasonable in the meaning of the Bill of Rights.

This is all the more difficult with imperfect information. We do not know quite how the coronavirus kills; we know that in a large number of cases it is deadly, but we do not know how large that number of cases might be. If Covid-19 killed 50% of those infected there would be no debate about emergency powers. If it killed 0.005% of those infected, there would be no debate, either. We do not know the true death rate because we do not know the true infection rate.

We elect public officials and hope they are competent to protect us in time of emergency, and we give them broad powers to act on our behalf. No doubt they will make some mistakes, perhaps some grave ones. Congress may pass legislation in good faith that terms out to be toxic, for example the Foreign Intelligence Surveillance Act of 1978. Our remedies are to vote our leaders out, to elect a new Congress that will repeal bad laws and pass new ones, and petition the courts for relief. No-one has devised a better system than America’s separation of powers for addressing a crisis under conditions of uncertainty.