Wednesday, December 21, 2005

The Constitution and Warrantless "Eavesdropping"

ONE LINK ADDED, 12/23/05
ONE LINK ADDED, 12/24/05

. . . 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. (Amendment IV, Constitution of the United States)
Apropos the flap about NSA intercepts of international phone calls, there's this from Prof. William J. Stuntz of Harvard Law:
. . . When the Fourth Amendment was written, the sole remedy for an illegal search or seizure was a lawsuit for money damages. Government officials used warrants as a defense against such lawsuits. Today a warrant seems the police officer's foe -- one more hoop to jump through -- but at the time of the Founding it was the constable's friend, a legal defense against any subsequent claim. Thus it was perfectly reasonable to specify limits on warrants (probable cause, particular description of the places to be search and the things to be seized) but never to require their use. (From the "Warrant Clause" article in The Heritage Guide to the Constitution, pp. 326-9.)
Thus, by the original meaning of the Constitution, all warrantless searches may be permissible. Judges and legislators have so changed the meaning of the Constitution that, instead, these views are prevalent: government cannot conduct searches without a warrant; warrantless searches are "invasions of privacy." Moreover, there is -- especially among "civil libertarians," anti-American Americans, and right-wing loonies -- a preference for an undifferentiated right to "privacy" (which is not guaranteed by the Constitution) over "the common defence" (to provide for which the Constitution was adopted). Antidotes to such views may be found here:

President had legal authority to OK taps
(Chicago Tribune)
Our domestic intelligence crisis (Richard A. Posner)
Several posts by Tom Smith of The Right Coast (start here and scroll up)
Eavesdropping Ins and Outs (Mark R. Levin, writing at National Review Online)
The FISA Act And The Definition Of 'US Persons' (Ed Morrissey of Captain's Quarters)
A Colloquy with the Times (John Hinderaker of Power Line)
September 10 America (editorial at National Review Online)
A Patriot Acts (Ben Stein, writing at The American Spectator)
More on the NSA Wiretaps (Dale Franks of QandO)
The President's War Power Includes Surveillance (John Eastman, writing at The Remedy)
Warrantless Intelligence Gathering, Redux (UPDATED) (Jeff Goldstein, writing at Protein Wisdom)
FISA Court Obstructionism Since 9/11 (Ed Morrissey of Captain's Quarters)
FISA vs. the Constitution (Robert F. Turner, writing at OpinionJournal)

Related posts:

War, Self-Defense, and Civil Liberties (a collection of posts)
Prof. Bainbridge Flunks (11/15/05)
Prof. Bainbridge and the War on Terror (12/18/05)