Tuesday, December 27, 2005

The Fourth Amendment: 24 Hours a Day, 7 Days a Week, 365 Days a Year

I was going to set this week aside for "year in review" posts, but I just couldn't let this one go. In today's New York Times, two former DoJ lawyers engage in a pretty weak defense of Dubya's NSA-led domestic spying operation. What I'm particularly surprised/disappointed about is that two lawyers would repeat this talking point from the Dubya defenders:

The president has the constitutional authority to acquire foreign intelligence without a warrant or any other type of judicial blessing. The courts have acknowledged this authority, and numerous administrations, both Republican and Democrat, have espoused the same view. The purpose here is not to detect crime, or to build criminal prosecutions - areas where the Fourth Amendment's warrant requirements are applicable - but to identify and prevent armed attacks on American interests at home and abroad.
I have no idea where people get this idea. The text of the Fourth Amendment is abundantly clear:
The right of the people to be secure in their persons, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .
There is not qualifier in the Amendment. It doesn't say "the right of the people against unreasonable searches and seizures during criminal investigations shall not be violated." Nor is there, to my knowledge, any Supreme Court case so restricting it. True, the Fourth Amendment most often is discussed in terms of a criminal proceeding, in which the fruits of an illegal search can by excluded if the Fourth Amendment was violated. However, any person who has been victimized by an illegal search can file a civil suit seeking compensation for that injury.

Dubya's NSA shenanigans may not violate the Fourth Amendment, but it won't be because the Amendment's protections are limited to criminal investigations.

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