Go, Fourth!

This is part of an ongoing if irregular series on the Bill of Rights, the first 10 Amendments to the United States Constitution. You might check out parts One, Two, and Three.

You could probably spend decades reading nothing but things that have been written about the Fourth Amendment to the Constitution. You could probably spend the next 6 years just reading what has been written on it in the last 6 years. It goes like this:

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

The short version of this is that, with some very broad exceptions, if the police suspect you are doing something illegal, they have to go before a judge and present “probable cause” and ask for a search warrant that outlines where they want to search and what they hope to find there. It applies not only to you — your physical body — but also to your residence and “papers” and “effects” too. The nice people at Dictionary.com tell us that means “goods; movables; personal property,” i.e., your stuff.

Some of the exceptions to the Fourth Amendment are very common sense: if a cop hears someone screaming for help and gunshots, he is very likely to break the door down rather than go before a judge (and I think most of us like it that way); if you are pulled over for speeding and are stupid enough to have your illegal drug stash sitting on the passenger seat, no warrant is required to arrest you for drug possession, nor would it be unreasonable to search the rest of the vehicle for additional contraband; if, while executing a search warrant, cops find evidence not listed in the warrant but pertaining to some other criminal activity, it doesn’t get thrown out.

It is important to note that this only applies to government searches. Your Aunt Myrna does not need a search warrant to take a peek in your medicine cabinet. If your neighbor breaks into your place and takes a look around, he is guilty of “breaking and entering,” not “violating your Fourth Amendment rights.” Nor, frankly, does your boss need a search warrant to go through your desk (strictly speaking, that’s your employer’s property anyway, meaning it is his right and sometimes his duty to do so).

Things worked out reasonably well like this for a couple hundred years, with the caveat that every few years some case would get all the way to the Supreme Court that called for defining, limiting, or expanding the rights and powers involved. They managed to convict Al Capone under it. Congress even made allowances for the fact that there might be a time when it was necessary to collect evidence without an alleged criminal knowing, and created things like wiretapping laws and the FISA court (they even have their own website, such as it is). Even in these situations, however, there is a court that has issued a warrant, and an attorney who has been appointed to argue for the rights of the target person — who remember has no idea this is going on.

Then the “War on Terror” came along and things got messy.

The first, obvious messy thing was federalizing airport screeners, making them all employees of the TSA. These people are specifically employed to search the people and luggage that go on commercial aircraft. The legal gymnastics that allow these warrant-free searches by federal employees (who absolutely have the authority to have a traveller arrested) is that “[B]ecause of the special risks that attend flight, and because people have the option of not flying, our courts have relaxed Fourth Amendment requirements in reviewing blanket searches and seizures at airports.” In other words, “If you don’t like it, don’t fly commercial airlines!” This is of course only an option for people with lots of travel time or lots of money, if not both.

The second thing is the Bush Administration NSA wiretap program, which President Bush admitted was in effect in 2005. The thing that has confused most people is that the exact sort of wiretaps that are (supposedly) out there under this program could have easily been done legally with the blessing of a FISA warrant, which are notoriously easy to obtain — and you can get one of those up to 3 days after you begin recording. So much for the ticking time bomb theory. Oh, and lest you think this is an old tired story, exactly one month ago Administration Officials told the Senate that they still have the authority to wiretap anybody anytime without a warrant. Furthermore, Attorney General Gonzales has until Tuesday to hand over documents on that very program to the Senate. Hopefully he will also be asked to explain why it was necessary to bother John Ashcroft about it while he was in the hospital.

When both ends of the political spectrum agree that there are 4th Amendment problems with the War on Terror, it’s a pretty good bet they are correct: I present TalkLeft and the Cato Institute. Mr. Bush and Mr. Gonzales seem to be sailing this rhetorical boat alone.

Surely we can find a way to be safe from both terrorists and warrantless searches.

In closing: A melamine-in-the-feed problem right here in the United States was uncovered by an alert distributor who thought things just didn’t look right, what a shame he is unlikely to be rewarded for it; I’m not the only one who has figured out that China can economically ruin the United States; it turns out our soldiers are better at diplomacy than some of our diplomats; on what planet is tuberculosis “not infectious”? It makes me wonder if this wasn’t a graphic demonstration of how one person –perhaps ignorant that he is a carrier — can spread a disease internationally within days; I’ve always thought that the biggest problem with the Kyoto accords is they involved too few nations, now the Bush Administration has a plan that would involve even fewer nations; if there is a “cure” for being gay, shouldn’t somebody do animal testing on it, you know, to make sure it’s safe for humans? It turns out that Save Darfur was founded by two Jewish groups who take “Never Again” seriously, even though the group now comprises 180 interfaith groups, and their actions are sometimes controvertial; Real feminism is good for everybody; It turns out that there may be a law that should have prevented the United States from hiring Blackwater’s “mercenaries”, and it’s only been on the books since 1893; And finally, even though the BBC and Bloomberg are reporting a slow economy, somehow the L.A. Times thinks everything is rosy. Please note that the 157,000 new jobs in May that they cite is just barely enough to keep up with new entries to the work force, 22,000 were government jobs, construction jobs were flat in a busy season, and both manufacturing and retail jobs were down.