CIVIL LIBERTIES AFTER 9/11

Robert Bork addresses this topic in the latest issue of Commentary. His argument boils down to saying that there have been worse abuses from time-to-time in our history, operating within the constraints of the Constitution might mean some criminals go free, and that therefore the Republic will surive and everyone should quit their whining. This argument floors me.

A sampling:

For most of us, airport security checks are the only first-hand experience we have with countermeasures to terrorism, and their intrusiveness and often seeming pointlessness have, not surprisingly, led many people to question such measures in general. But minor vexations are not the same as an assault on fundamental liberties.

My response to this quote is another quote:

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.

A little thing I like to call the Fourth Amendment. So, yes, I find being searched at the airport by government drones, absent a warrant or any probable cause to be a violation of my most basic rights, not a mere vexation.

ACCORDING to civil libertarians, the constitutional safeguards that normally protect individuals suspected of criminal activity have been destroyed in the case of persons suspected of links with terrorism. This accusation reflects an ignorance both of the Constitution and of long-established limits on the criminal-justice system.

Prior to 1978, and dating back at least to World War II, attorneys general of the United States routinely authorized warrantless FBI surveillance, wire taps, and break-ins for national-security purposes. Such actions were taken pursuant to authority delegated by the President as commander-in-chief of the armed forces and as the officer principally responsible for the conduct of foreign affairs. The practice was justified because obtaining a warrant in each disparate case resulted in inconsistent standards and also posed unacceptable risks.

But, sadly, that pesky Fourth Amendment seems to call for getting a warrant in each and every case, disparate or no. A real pain, restraining the power of the state.

I shan’t continue. Go read the rest if you will.

I must say that I’m very disappointed with Bork. I very much thought he deserved to be confirmed to the Supreme Court back in 1986 and that he was railroaded. But for someone who considers himself a strict constructionist to be willing to go to this level in ignoring the plain language of the Constitution is simply baffling.

FILED UNDER: Law and the Courts
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. 4th Amendment is not absolute – I know of some 8 exceptions. Especially entering the country (go sit on that pot until…).

    As a matter of fact, I can’t think of any Amendment that is absolute, but I ain’t no lawyer…

  2. James Joyner says:

    There are certainly a lot of exceptions, as I used to note when I taught the Intro the American Govt course:

    1) Incident to lawful arrest (US v. Rabinowitz, 1950)—Const prohibits unreasonable searches

    2) Waiver of Constitutional rights (i.e., voluntary)

    3) DUI and implied consent doctrine

    4) Movable vehicles and objects (Carroll v. US, 1925)

    5) Objects in plain view (Harris v US, 1947)

    6) Private official conducting search without official knowledge or collusion

    7) Open fields, etc. –The Dunn Test (US v Dunn, 1987)

    8) After lawful impoundment (Cooper v California, 1968)

    9) Stop and Frisk (Terry v. Ohio, 1968)

    10) Contraband found via Terry stop seizable (Minn v Dickerson, 1993)

    11) Safety of the officer permits making man step out of car and submit to Terry search (Penn. v. Mimms, 1977)

    12) Administrative and compelling governmental interest

    a) Regulated businesses (US v Biswell, 1972)

    b) “Roam at will” expansion (Marshall v Barlow’s, 1978)

    c) Border searches (US v. Montoya, 1985)

    d) Drug and Alcohol testing of sensitive employees (Nat’l Treasury Employees v Raab, 1989)

    Most of these I’d disagree with as a matter of reasonable interpretation of the Constitution.

  3. Paul says:

    A little thing I like to call the Fourth Amendment. So, yes, I find being searched at the airport by government drones, absent a warrant or any probable cause to be a violation of my most basic rights, not a mere vexation.

    James, James, James… Come on…. You applying for a job with the ACLU?

    Of course you know better.

    You have no constitutional right to board an aircraft.

    NOW if you want a most egregious violation of the 4th you need look no further than police check points where they stop you to see if you have insurance etc. THAT is wildly against the 4th and the courts have upheld it.

    But seaching someone before they board an aircraft is completely reasonable which is what the 4th calls for.

    I’d urge you to reconsider that point.

    no maybe not. 😉

    P

  4. Lavoisier1794 says:

    So glad he’s not on the Supreme Court…

  5. James Joyner says:

    Paul,

    By your logic, we live in a police state. We don’t have a specific constitutional right to be anywhere outside our homes. But the 4th Amendment protects not just our homes, but our persons, papers, etc. It’s not unreasonable for a cop to detain someone based on reasonable suspicion; it is unreasonable to subject people whom you are 99.9% sure are guilty of nothing to a search.

  6. Paul says:

    I dunno, I am as right wing “constutitional constructionist” as they come. But I don’t think it is unreasonable to be searched for a bomb before you board a plane.

    OK Let’s do this….

    It is reasonable to suspect anyone boarding a plane might want to hijack it or blow it up?

    OR

    Is it unreasonable to assume that no one wants to hijack it or blow it up?

    Paul

    As an aside, I think the word “reasonable” as a legal term is facinating. Does anyone consider their own opinion unreasonable?

  7. James Joyner says:

    Heh. Paul, by that logic, let me ask you this:

    Is it reasonable to suspect anyone walking on the street might be a criminal? Or that no one is? How about in a very high crime area?

    Does it therefore follow that everyone should be searched?

  8. Paul says:

    First- You did not answer my question(s).

    Second, I’ll answer yours. NO

    your turn.

    Paul

  9. James Joyner says:

    Reasonableness under the plain meaning of the 4th Amendment inheres in the person. It is unreasonable for a US citizen with no criminal record who is not acting suspiciously to be searched by government officials. It was merely annoying when the airlines were doing it; it is blatantly unconstitutional when the government does it.

    And, statistically speaking, actually, it is quite unreasonable to suspect than anyone boarding any particular flight is carrying a bomb for the purpose of hijacking it or blowing it up. Indeed, far less reasonable than suspecting teenagers walking around in the inner city at night of being armed, dangerous, and up to something criminal. But we nonetheless don’t detain every youngster walking around South Central; just those who present signs that they might be criminals.

  10. Well said, sir!

  11. Paul says:

    “Reasonableness” what a concept. (I knew we would get there.)

    Let me ask you this… Since you avoided my previous questions, I don’t know why I bother, but I will.

    How many people would board a plane if no one were searched before they got on?

    Would you?

    If someone refused would they be UNreasonable?

    While my argument leaves me open to the charge that the constution is up to a democratic process and not interpertaion that charge would be baseless.

    “Reasonableness” is what a “reasonable” person would do.

    I submit to you that if one airline were allowed to board passengers with no such checks that airline would be out of business in a week.

    —Using an analogy of crime is a pitiful way to debate. Either it is reasonable to search people or it is not. Crime really has nothing to do with it.

    You have typed a lot but never answered the “reasonableness” question.

    P

  12. Paul: if the airlines had a choice about whether or not people would have to go through screening, I think they would choose to differentiate themselves based on that. You could pay $80 to fly on CheapoJet with a .000000001 risk of getting blown out of the sky, or $200 to fly on USTWANorthwestDelta with a .00000000000001 risk of getting blown out of the sky. Me? I’d still drive, because I generally despise flying (though paying $80 and not having to stand in line for six months and take my shoes off and risk having my laptop stolen etc. is tempting).

    The same effect differentiates El Al from other carriers. You pay more, but they check whether or not the luggage is gonna blow up mid-flight. Or you can fly on American, pay a bit less, and increase the risk that the terrorists decided your number was up.

    I don’t know if NoSearchesAir would last a week. But I think PreSept11Air (i.e. no intrusive searches, no stupid shoe X-rays, and you can bring nail clippers on the plane) would do gangbusters business, particularly if they hired ex-football players to be visible in-flight security. Replace the X-Ray machines with linebackers and I don’t see terrorism increasing much.

  13. Paul says:

    Your last paragraph saved me from thinking you had gone totally mad. But then I reread the first one and I am not so sure.

    If we had one airline where they did not search baggage where do you think the terrorists would be the next morning?

    BTW- I’m not sure where you invented the $80 figure.

    They would be out of business because nobody would fly them. Would you let your family fly “Terrorist Air?”

    HELL, would the FLIGHT CREW show up for work??? I know many pilots and stews and I doubt you could get a crew.

    I can firmly make the case that if you think people would fly “Terrorist Air” then you are not being reasonable.

    And I want to go on record as saying that when I am the reasonable one in the crowd, you folks are messed up! 😉

    Paul