Case may test poorly defined privacy right

November 02, 1993|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- Echoing decades of American legal argument, yesterday's lengthy Senate debate focused ultimately on a single idea -- privacy. But it was new and novel, too: The privacy being talked about involved the secrets told by Sen. Bob Packwood to his diary.

The battle on the Senate floor may be a prelude to a legal fight at the Supreme Court -- the ultimate arbiter of what is private under the Constitution.

The Senate clearly expects a court fight if it decides to ask a judge to order Mr. Packwood to hand over more of his diary than he has been willing to do so far.

One basic claim would turn on the uncertain concept of privacy under the Constitution's Fourth Amendment guarantee against "unreasonable searches and seizures."

Mr. Packwood's lawyer has telegraphed that, by accusing the Senate of "a frontal attack on the constitutional right to privacy contained in the Fourth Amendment."

Another could be a claim that his Fifth Amendment protection against "self-incrimination" was being violated if the diaries implicated him in a crime.

As the fight over the diaries unfolds, legal scholars question whether Mr. Packwood is entitled to all the rights he would have if he were a private citizen confronted by the same kind of demand.

"There is no case exactly like this," suggests Kathleen M. Sullivan, a Stanford University law professor. "If he were a private citizen and the U.S. attorney demanded his diary, he would have a clear Fourth Amendment right to challenge the demand" -- on the theory that the U.S. attorney had not proved a need to have a look.

That is not as clear with a senator, she suggests, because accepting membership in the U.S. Senate may carry with it some concessions.

For example, the Senate may inquire into activities that could bear upon duties or standards of conduct imposed on its members, she said.

To sort that out, Ms. Sullivan said, a court would have to look into the Senate's own rules, the scope of the investigation, the conditions under which Mr. Packwood wrote in his diary, and the degree to which any entry can be found to be within the Senate's investigative reach.

But Ms. Sullivan said she saw little chance that Mr. Packwood, or a private citizen, could succeed in a Fifth Amendment challenge to a demand for private papers or diaries. Although the Fifth Amendment does protect against self-incrimination, the Stanford scholar noted that it only protects against forced "testimony."

The Supreme Court has ruled, she said, that a demand merely to produce private papers is not a command for testimony -- unless the act of turning it over would be a kind of "symbolic" testimony.

The Fourth Amendment, she repeated, would always be there for Mr. Packwood to "fall back on."

The Fourth Amendment's opening words come as close as any phrasing in the Constitution to embrace the notion of "privacy." The word "privacy" itself is nowhere in the Constitution. But the Fourth Amendment says this in its beginning:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."

"People" means private as well as public officials, although perhaps not to the same degree.

"Their papers" is a phrase that easily includes private diaries. But it is unclear when papers are "private" in official investigations.

Reams of pages of Supreme Court rulings, since the Fourth Amendment was ratified in 1791, have not given the final word on that.

As legal historian and law professor Jethro K. Lieberman has written: "The Supreme Court's idea of privacy is one of the oddest conceptions in all constitutional law."

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