On Feb. 6, 2006, U.S.
Attorney General Alberto Gonzales launched a convoluted attack on the Fourth
Amendment before the Senate Judiciary Committee. This assault on the meaning
of the Fourth Amendment is, in my estimation, the biggest leap forward for totalitarianism
in this country.
The following is an excerpt from Alberto Gonzales' Fourth Amendment catechism
"Finally, the NSA's terrorist surveillance program fully complies with
the Fourth Amendment, which prohibits unreasonable searches and seizures. The
Fourth Amendment has never been understood to require warrants in all circumstances.
The Supreme Court has upheld warrantless searches at the border and has
allowed warrantless sobriety checkpoints. See, e.g., Michigan v. Dept. of
State Police v. Sitz, 496 U.S. 444 (1990); see also Indianapolis v. Edmond,
531 U.S. 32, 44 (2000) (stating that 'the Fourth Amendment would almost certainly
permit an appropriately tailored roadblock set up to thwart an imminent terrorist
attack'). Those searches do not violate the Fourth Amendment because they involve
'special needs' beyond routine law enforcement. Vernonia Sch. Dist. v. Acton,
515 U.S. 646, 653 (1995). To fall within the 'special needs' exception to the
warrant requirement, the purpose of the search must be distinguishable from
ordinary general crime control. See, e.g., Ferguson v. Charleston, 532
U.S. 67 (2001); City of Indianapolis v. Edmond, 531 U.S. 32, 41 (2000).
"The terrorist surveillance program fits within this 'special needs'
category. This conclusion is by no means novel. During the Clinton Administration,
Deputy Attorney General Jamie Gorelick testified before Congress in 1994 that
the president has inherent authority under the Constitution to conduct foreign
intelligence searches of the private homes of U.S. citizens in the United States
without a warrant, and that such warrantless searches are permissible under
the Fourth Amendment. See 'Amending the Foreign Intelligence Surveillance
Act: Hearings Before the House Permanent Select Comm. on Intelligence,' 103d
Cong. 2d Sess. 61, 64 (1994) (statement of Deputy Attorney General Jamie S.
Gorelick). See also In re Sealed Case, 310 F.3d at 745-46.
"The key question under the Fourth Amendment is not whether there was
a warrant, but whether the search was reasonable. Determining the reasonableness
of a search for Fourth Amendment purposes requires balancing privacy interests
with the government's interests and ensuring that we maintain appropriate safeguards.
United States v. Knights, 534 U.S. 112, 118- 19 (2001). Although
the terrorist surveillance program may implicate substantial privacy interests,
the government's interest in protecting our nation is compelling. Because the
need for the program is reevaluated every 45 days and because of the safeguards
and oversight, the al-Qaeda intercepts are reasonable."
The above statement from Alberto Gonzales is breathtaking. Notice how he never
says the "terrorist" surveillance program satisfies the Fourth Amendment's probable
cause provision. Instead, he says it passes the neoconservative "reasonableness"
standard. Then, he uses three different types of examples that satisfy the probable
cause requirement to imply that the Fourth Amendment doesn't really say what
it says about probable cause.
Although I do question the constitutionality of sobriety checkpoints, a sobriety
checkpoint on a public road is still different from invading the privacy of
one's house, or eavesdropping on a phone conversation. Sobriety checkpoints
are considered constitutional not just because they pass a "reasonableness"
standard, but, because they are on public roads, they satisfy the entire Fourth
Gonzales then uses the example of FISA searches. It is important to understand
that evidence obtained from a FISA search cannot be used in a criminal prosecution,
precisely because the FISA standard doesn't meet the probable cause threshold
of the Fourth Amendment. The evidence can only be used for narrow purposes,
such as deportation of a foreign intelligence operative. So, yes, FISA searches
don't meet the probable cause threshold, but that is exactly why they can't
be used to obtain evidence for criminal prosecutions. The probable cause threshold
is satisfied, since it isn't violated.
Notice the eclectic examples Gonzales uses. He fuses together "special needs"
law enforcement operations with counterintelligence operations. This is a very
dangerous comparison. Making counterintelligence operations part of "special
needs" law enforcement programs is a calculus to use FISA-type searches for
Gonzales then repeats his view that the Fourth Amendment doesn't require probable
cause and warrants. The search only has to be "reasonable," pursuant to the
arbitrary discretion of government agents. He then cites United
States v. Knights. I have to wonder if he has ever read that decision,
since the Supreme Court didn't rule against Knights because the search only
passed the "reasonableness" standard. The search satisfied the probable cause
threshold because Knights was on probation! He was subject to warrantless searches
as part of his sentence.
Would it be constitutional for the government to execute all of us, since Ted
Bundy was constitutionally executed? Or would it be okay for the government
to force all of us to submit to urinalysis testing because people on probation
The "reasonableness" standard is a neoconservative invention. None of the examples
Gonzales cited give the Bush administration a detour around the probable cause
threshold. Not all searches must meet the probable cause threshold, but all
searches must satisfy the probable cause threshold. Gonzales doesn't even pretend
that the NSA's program satisfies the entire Fourth Amendment. Instead, he says
searches only need to satisfy a "reasonableness" standard.
To fully appreciate the significance of the Bush administration's assault on
the Fourth Amendment, one should place this in a historical context. For King
George III's deputies to enforce his laws, Parliament passed the Writs of Assistance
Act. Writs of assistance were warrants so general that they allowed the king's
agents to go wherever they wanted, whenever they wanted, for whatever reason
they wanted. Writs of assistance were basically licenses for the king's men
to oppress the colonists. It was the writs of assistance that spawned the Revolutionary
War. The Founding Fathers prevailed in the war against the Crown. The Founders
gave us the Bill of Rights, which includes the Fourth Amendment. The Fourth
Amendment condemns the concept of general warrants.
Fast-forward 230 years: King George W. Bush is surpassing George III, by attacking
the concept of needing any type of warrant. Do we really want federal agents
to go wherever they want, whenever they want, for whatever reason they want,
The usual refrain I hear from neoconservatives is that we shouldn't be concerned
about what the government is doing unless we are doing something wrong. I say
the government shouldn't be concerned about what we are doing unless we are
doing something wrong. If somebody is engaged in criminal activity, why can't
an official say this under oath?
Consider all of the statutes on the books. Are there no statutes that violate
our rights? Perhaps some people do have a legitimate need to hide illegal activity
– i.e., illegal activity that shouldn't be illegal. Also, are there no legal
activities that should be private? Would you trust your neighbors having the
power to invite themselves inside of your house whenever they wished? Why would
you trust somebody with that same power just because they work for the government?
As Paul Craig Roberts
pointedly asks, "Why, if only evildoers have anything to fear from government,
the Founding Fathers bothered to write the Constitution?"