More on that 4th Amend Thing
At the risk of offending our newest contributor, I'd like to post an email here that A9 commenter, and a good friend of mine (aka Uncle Pete), sent me last night. I was supposed to post something he wrote about Fitzgerald, but its since out of date. His latest email is thoughtful and timely. Enjoy and please let Uncle Pete know you'd like him to contribute to A9 more regularly!
Lets start with the big tuna of all this if you will, 4th Amendment prohibition on warrantless searches. Does the President's domestic spying operation violate the 4th Amendment? We don't even need to know what the racket is to begin analyzing this. The prohibition has exceptions. What are they? The ones that matter here are the national security exception and the "border search" exception. I'm guessing no one here believes in the national security exception. Which is a good thing, because it doesn't really exist. I know you're thinking "then why does everyone talk about it?" And the answer is, because they don't listen! These windbag law school professors, whether left, right, or just drunk straight down, aren't in there getting their elbows dirty with trial judges and criminal courts. If they were, they'd understand this simple fact, and they'd shut their traps about national security.
If anyone walks into a criminal court anywhere in this country and says the following: "Your honor, I represent the federal government, and we concede these searches were warrantless, but urge you to accept the evidence found by them anyway as they are covered by the national security exception to the 4th Amendment of the Constitution." The judge, the stenographer, the defense attorney, the bailiff, and anyone else present in the courtroom would laugh hysterically at this idiot. At some point, the judge would regain his composure and say something like: "Well gee counselor, I sure do appreciate that suggestion. But how on earth do you expect me to throw out two-hundred years of jurisprudence in favor of an exception so wide, so great, so massive that you could drive an entire army right through it?"
And then there would be silence. Now I'm sure the attorney for the government would mumble about footnote 23 in Katz, and maybe something about the Keith Case, but that would be about all he would do because when you open those cases up and read them, this is the conclusion:
Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President's domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment.
In other words, there is no national security exception to the 4th Amendment. Now border searches are a different thing. That does exist. And it applies to mail. So if all we're talking is opening up some email thats crossing our borders, then the surveillance racket is fine. That would not get laughed at by a court. What would though is this national security crap. Which is why I can't understand why for the life of me liberals aren't just sitting around quoting from Wong Son, and instead continue to get involved in the minutia of the FISA. I freely admit I don't understand FISA very well. But if I was a liberal, I sure as hell wouldn't be getting involved there. The place to fight this is on the 4th Amendment. And the way to fight it is like this.
We aren't the type of country where someone in a dark overcoat can walk up to you, grab you by the arm, and say: "May I see your papers sir?" Then frisk you. Then decide whether or not you can go on your merry way, all without any oversight or judicial review. We aren't that way now because we don't believe in it. But things are changing. Do we want to be a country like that?