The Police, the Fourth Amendment, and the New Writs of Assistance

“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 wording of the Fourth Amendment is unambiguous in not contemplating warrantless searches. There is no mention of warrantless searches. The first clause sets forth the idea that the natural right to privacy will be defended by the Constitution. The second clause states how this defense is to be realized by stating the warrant requirement for searches and specifying the necessity of probable cause. If the authors of the document had intended to allow for warrantless searches, then certainly they would have mentioned it.

The Founders had a strong motivation to protect Americans against unreasonable governmental searches and seizures. One of the “sparks” that ignited the American Revolution was the widespread use of Writs of Assistance by the British Crown in the Colonies. Writs of Assistance permitted British custom agents to search any place in which smuggled goods might be concealed without any particular suspicion that the goods were there. Writs of Assistance were self-written by British soldiers and officials and allowed them to capriciously demand entry into any Colonial business or home. The original purpose of the Writs of Assistance was to allow enforcement of the Stamp Act, which mandated that every official piece of paper held by Colonists bear the King’s stamp. While the purpose of the Writs of Assistance was limited in scope, once inside a business or home, the King’s officials would often intrude into further matters. In effect, any British soldier or official could, on any whim, completely search a Colonial business or residence for anything without the slightest probable cause. The Fourth Amendment provided important safeguards by requiring particularity in the place to be searched and the items to be searched for and requiring that a judge issue the search warrant.

The Supreme Court has gradually allowed a number of exceptions to arise in which no warrant is necessary provided that the search is deemed “reasonable,” reducing the importance of warrants and slowly but surely bringing the nation dangerously close to a return of Writs of Assistance. The Court has held that “searches conducted outside the judicial process, without prior approval by judge or magistrate,are per se unreasonable.” Unfortunately, the Court has come to recognize so many exceptions to this rule that search warrants have become almost a non-issue. Once inside a building, police may legally seize any incriminating evidence that is in “plain view” provided that its incriminating character is “immediately apparent” and that the officer has “a lawful right of access to the object itself.” While seemingly reasonable, the plain view doctrine makes fishing expeditions extremely likely. How can it be proven that a drawer containing something incriminating was actually open when the authorities arrived on the scene? How can it be proven that the authorities did not plant key evidence whose incriminating character is “immediately apparent?” In plain view cases, a search warrant has already been legally issued. However, there are “exigent circumstances” in which police may enter and search without any search warrant. These “exigent circumstances” include pursuing a fleeing felon, the imminent destruction of evidence, the need to prevent the escape of a suspect, or the risk of danger to the police or any persons inside or outside the building. Again, these exceptions seem prima facie reasonable, but what is to prevent overzealous officers from falsely claiming that they heard something indicating danger or the destruction of evidence? Kentucky v.King (2011) in effect gave the government all the powers that the British Crown had with Writs of Assistance. In this case, the Court ruled that officers may enter a residence without a warrant or probable cause if they smell marijuana and hear “scurrying” indicative of the destruction of drugs. All that is necessary is that the police knock first and announce their presence. Therefore, if marijuana is illegal in a given jurisdiction, then any officer may enter any building at any time without a warrant or probable cause and then use – or abuse – the plain view doctrine to go on a fishing expedition for any and all potentially incriminating evidence. Perhaps the American Revolution was not ultimately as successful as had been thought.

On Obama’s Assassination Doctrine

 

According to the recently leaked Department of Justice white paper – entitled Lawfulness of a Lethal Operation Directed Against a U.S.Citizen Who Is a Senior Operational Leader of Al-Qa'ida or An Associated Force – the United States government could “use lethal force in a foreign country outside the area of active hostilities against a U.S. citizen who is a senior operational leader of al-Qa'ida or an associated force.” The white paper states:

The President has authority to respond to the imminent threat posed by al-Qa'ida and its associated forces, arising from his constitutional responsibility to protect the country, the inherent right of the United States to national self defense under international law, Congress's authorization of the use of all necessary and appropriate military force against this enemy, and the existence of an armed conflict with al-Qa'ida under international law.  Based on these authorities, the President may use force against al-Qa'ida and its associated forces.  As detailed in this white paper, in defined circumstances, a targeted killing of a U.S. citizen who has joined al-Qa'ida or its associated forces would be lawful under U.S. and international law.  Targeting a member of an enemy force who poses an imminent threat of violent attack to the United States is not unlawful.  It is a lawful act of national self defense.

The authority for this extraordinary power to dodge the Fifth Amendment and play the role of judge, jury, and executioner is justified by appealing to the 2001 Authorization for Use of Military Force (AUMF).

In order for the assassination of an American citizen to be authorized by the White House, three criteria must be met:

[T]he United States would be able to use lethal force against a U.S. citizen, who is located outside the United States and is an operational leader continually planning attacks against U.S. persons and interests, in at least the following circumstances: (1) where an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States; (2) where a capture operation would be infeasible—and where those conducting the operation continue to monitor whether capture becomes feasible; and (3) where such an operation would be conducted consistent with applicable law of war principles.  In these circumstances, the “realities” of the conflict and the weight of the government's interest in protecting its citizens from an imminent attack are such that the Constitution would not require the government to provide further process to such a U.S. citizen before using lethal force.

‘Imminent’ is broadly defined, stretching the meaning of the word beyond the bounds of sense:

            First, the condition that an operational leader present an “imminent” threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.  Given the nature of, for example, the terrorist attacks on September 11, in which civilian airliners were hijacked to strike the World Trade Center and the Pentagon, this definition of imminence, which would require the United States to refrain from action until preparations for an attack are concluded, would not allow the United States sufficient time to defend itself….

            By its nature, therefore, the threat posed by al-Qa'ida and its associated forces demands a broader concept of imminence in judging when a person continually planning terror attacks presents an imminent threat, making the use of force appropriate.  In this context, imminence must incorporate considerations of the relevant window of opportunity, the possibility of reducing collateral damage to civilians, and the likelihood of heading off future disastrous attacks on Americans.

The possibilities of this assassination doctrine being abused are countless. The most serious problem is the subjectivity of the criteria. Given that all is required is that an “informed, high-level official of the U.S. government” believe that a person is an “operational leader continually planning attacks against U.S. persons and interests,” there is no safeguard against mistakes. This criterion essentially equates being accused with being guilty. It is also unclear what precisely constitutes an “operational leader” or an “associated force.”

However, the nuances of the assassination doctrine need not be analyzed because the AUMF simply does not give the federal government the power to violate the Fifth Amendment by executing American citizens that appear on any “kill list.”

1. The AUMF Is Not a Congressional Declaration of War 

            A. War Must Be Declared Against a Specific Entity

The key section of the AUMF states:

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The strangest thing about the language of the AUMF is that it does no specifically name any nation against which the United States is declaring war. The Constitution grants Congress the power to declare war and this logically requires that a specific party have war declared against it. This was the practice that Congress used in previous legitimate declarations of war.

The War of 1812

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That war be and is hereby declared to exist between the United Kingdom of Great Britain and Ireland and the dependencies thereof, and the United States of America and their territories…. 

Mexican-American War

WHEREAS, by the act of the Republic of Mexico, a state of war exists between the Government and the United States…. 

Spanish-American War

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, First. That war be, and the same is hereby, declared to exist, and that war has existed since the 21st day of April, A.D. 1898, including said day, between the United States of America and the Kingdom of Spain….

World War I

That the President be, and he is hereby, authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial German Government….

World War II

That the state of war between the United States and the Imperial Government of Japan which has thus been thrust upon the United States is hereby formally declared….

That the state of war between the United States and the Government of Germany which has thus been thrust upon the United States is hereby formally declared….

In each of these cases Congress declared war against a specifically named nation. The language in the AUMF is essentially an unconstitutional delegation of the power to declare war to the President.  By not specifying which nation the United States was declaring war upon, Congress failed in its attempt to declare war at all.

            B. There Is No Precedent for Declaring War Against   Groups or Individuals

Wars are traditionally declared and waged against nation states rather than against groups or individuals. Formal American declarations of war were made against Great Britain, Mexico, Spain, Germany, Japan, etc. Even “informal” wars – whether or not they were constitutional – were declared upon France, the Barbary States, Russia, North Korea, North Vietnam, Iraq, etc. Neither al Qaeda nor its “associated forces” are a nation state or even a quasi-nation state like the Confederate States of America or any organized revolutionary group seeking to establish itself as the formal authority of a nation state. The United States has never declared war upon an equivalent group before.  For example, Congress has never declared war upon the Ku Klux Klan, the Cosa Nostra, the Purple Gang, etc.

There is good reason to insist that war can only be declared upon a nation state or quasi-nation state. If war can be declared against any group or individual, then a dangerous slippery slope is created. Allowing Congress to declare war upon a group that is not a nation state would allow Congress to subvert due process by simply declaring war against any organized criminal group.  This is also why Congress must not be allowed to declare war against an individual. This would allow Congress to declare war against any individual against which it does not have a sound criminal case and simply assassinate him or her instead of conducting a criminal trial.

2. “Terrorists” Cannot Be Both Enemy Combatants and Criminals

The inconsistent treatment of terrorists by the United States government is a transparent attempt for them to “have their cake and eat it, too.” The government views terrorists as enemy combatants when that suits it purposes but views “terrorists” as criminals when that suits its purposes. If it wishes to claim that it has legitimately declared war upon al Qaeda and its “associated forces,” then it is obligated to consistently treat these parties in the same manner that nation states have traditionally been treated in wars. However, if it wishes to claim those terrorists are criminals, then it may not use the rules of war to deprive them of their natural rights to due process.

            A. If Al Qaeda and Its “Associated Forces” Are Enemy Combatants

If al Qaeda and its “associated forces” are to be treated as being akin to enemy nation states in wars, then a number of startling consequences result. First, 9/11 cannot be treated as a criminal act. The United States has itself declared that preemptive war is legitimate by waging military actions against nations such as Iraq and Libya without those nations having attacked the United States or imminently preparing to do so. Therefore, the 9/11 attacks would have to be treated merely as a military attack like the NATO bombings of Libya. Second, the fact that civilians were targeted in the World Trade Center is irrelevant. One of the tragic facts about modern “total war” is that civilians are targeted just as military targets are. The United States bombed civilian cities such as Tokyo, Dresden, Hiroshima and Nagasaki during World War II, Hanoi during the Vietnam War, Baghdad during the Gulf War and Iraq War, etc. There is simply nothing about the 9/11 attacks that rises to the level of war crimes if the attacks are treated as acts of war rather than as criminal acts. Finally, the leadership of al Qaeda must be treated as the leaders of any enemy nation is during a war. Viewing the late Osama bin Laden as being similar to Confederate General Robert E. Lee is indeed disturbing, but that would follow from treating al Qaeda as a nation state at war with the United States.

            B. If Al Qaeda and Its “Associate Forces” Are Criminals

If al Qaeda and its “associated forces” are to be treated as criminals, then they may not be denied due process. The Fifth Amendment applies to both American citizens and foreign nationals who are accused of committing crimes in the United States. Timothy McVeigh, Terry Nichols, Michael Fortier, Eric Rudolph, Zacarias Moussaoui, Ramzi Yousef, Eyad Ismoil, etc. were all given due process and convicted of terrorist crimes in civilian courts. There is no logical reason why current members of al Qaeda should not be treated in the same manner.  Therefore, the use of assassination in order to subvert due process is inappropriate and unconstitutional.

Why the TSA’s Search Procedures Are Unconstitutional

The TSA can claim the legal right to circumvent the Fourth Amendment on the basis of the 1973 case U.S.v. Davis where the Ninth Circuit Court of the United States provided the power for the federal government – or the airlines themselves – to search anyone whom they choose. Davis involved a man who was convicted of attempting to board a flight while carrying a concealed weapon. The weapon – a loaded revolver – was found inside the man’s briefcase by an airline employee during a search of the passenger’s carry-on luggage. The Ninth Circuit held that searches of passengers and their luggage – akin to the kinds of searches down today by the TSA – do not violate the Fourth Amendment. According to the Court, “searches conducted as part of a general regulatory scheme in furtherance of an administrative purpose, rather than as part of a criminal investigation to secure evidence of crime, may be permissible under the Fourth Amendment though not supported by a showing of probable cause directed to a particular place or person to be searched.” The Court found that screening searches such as those conducted on Davis’ luggage in the case at hand – or by extension, pat down searches or the use of scanners by the TSA – are Constitutional.

[S]creening searches of airline passengers are conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings. The essential purpose of the scheme is not to detect weapons or explosives or to apprehend those who carry them, but to deter persons carrying such material from seeking to board at all.

The Court laid down three main criteria that a screening search must satisfy in order to be Constitutional. These criteria are that “the screening process is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives, that it is confined in good faith to that purpose, and that potential passengers may avoid the search by electing not to fly.” The heavy handed tactics of the TSA are likely to pass the Davis Test and to be upheld as constitutional by any federal court if the TSA’s methods are challenged given that the federal courts – especially the Supreme Court – have a strong tendency to defer to the legislative and federal branches of government in such matters.

However, it can be argued that current TSA methods satisfy none of the three criteria of the Davis Test. First, “current technology” must not be construed to refer to only the latest in technological gadgets such as advanced whole-body imaging scanners. “Technology” also refers to the latest in intelligence techniques. The state of the art when it comes to airport security intelligence techniques are those employed at airports in Israel. Few airline passengers in Israeli airports are frisked at all, and these airports contain no whole-body imaging scanners. Israeli airport security personnel scoff at the ridiculous exploits of the TSA. “Taking the bottle of water from the 87-year-old woman at JFK, you will never find an explosive material that is coming from bin Laden,” Shlomo Harnoy, head of the Sdema Group – an Israeli security consultancy that advises airports abroad – snarked. “You are concentrating on the wrong thing.” Instead of treating each and every passenger – whether a child or a feeble elderly person in a wheelchair – as the next Mohamed Atta, Israeli airport security techniques rely upon profiling. While most passengers at Israeli airports go through security without effort, some passengers are pulled aside and subjected to extensive searches and screening. According to Pini Shif – a founder of the security division at Ben Gurion International Airport outside Tel Aviv – an estimated “2 percent of passengers flying from the airport are subject to themore intensive screening.” Of course, use of the Israeli method would not be uncontroversial if the TSA were to employ such methods. For example, young men who appear to be of Arabian descent or appear to be dressed in traditional Muslim attire would likely receive greater scrutiny than elderly Hispanic women or middle-aged Black men. If not carried out with careful attention and great sensitivity, such “racial profiling” would be problematic. Nevertheless, there is no denying that such men do fit the typical profile for airplane hijackers. However, one cannot deny that such profiling is often done by law enforcement or that such profiling is often rational. When searching for members of the Mafia, Italian men are undoubtedly singled out. When searching for members of the Triads or the Yakuza, Asian men are undoubtedly singled out. When searching for members of White Supremacist groups, Caucasian men are undoubtedly singled out. When searching for members of street gangs such as the Bloods or Crips, Black men are undoubtedly singled out. And so on and so forth. The fact that a 9/11 type attack has not occurred in Israel attests to the success of the Israeli methods of airport security. Arabs – who make up about twenty percent of the Israeli population – are subjected to greater scrutiny in Israeli airports than Jewish passengers. However, the fact that such a small percentage of Israeli airline passengers are subjected to heightened scrutiny indicates that widespread racist profiling of Arab passengers in Israeli airports is not taking place.  

One may object that it would be impractical if not impossible for the United States to adopt Israeli-style security at its airports. For example, Homeland Security Secretary Janet “Big Sis” Napolitano has pointed out the great differences in size between the United States and Israel. The United States has airport traffic that is approximately 70 times greater than that of Israel and has 450 major airports while Israel has only one. There is no denying that if the TSA transitioned into using Israeli-style airport security measures that it would initially be expensive. However, naked body scanners are not exactly inexpensive. Perhaps no lobbying groups with ties to Washington run organizations that are able to train TSA officers the appropriate Israeli security intelligence techniques, but that is no excuse. With an annual budget of over $8 billion, the TSA can certainly find the money in its coffers in order to enact security methods that are clearly superior. Furthermore, the Patriot Act allows for what appears to be unlimited funding to fight the “War on Terrorism,” so the cost of better methods to fight terrorism can hardly be considered an obstacle.

  

The TSA also does not confine its searches of passengers in good faith to the goal of detecting potential hijackers. It will be argued below that the TSA engages in a sadistic campaign of abuse of travelers for the purpose of terrorizing the populace and “training” them to accept future intrusions and violations of their civil liberties. There is no good faith involved when infants and handicapped adults are treated like terrorists.

Finally, the TSA does not provide travelers with the option of avoiding screening by opting not to fly. In November of 2010, the TSA announced that it can fine individuals $11,000 for walking away from the screening process and deciding not to fly. The possibility of paying an $11,000 fine is hardly the freedom not to travel. In order to impose such a fine, an arrest would be required, and therefore, a search would be conducted incident to arrest. In essence, the TSA can prevent anyone from exercising the right not to travel that the Davis Test requires. Hence, the TSA’s screening procedures fail each prong of the Davis Test, and as such, these procedures violate the Fourth Amendment.