Help! I’m Being Violated!

My fellow Americans, we’re now in Week 3 of the latest series of national nightmares brought to you courtesy of the NY Times (how else would we know we’re in the midst of a national nightmare?).

And no, I’m not talking about that national nightmare. Thankfully, the horrific rampage of that Aryan-looking symbol of the Patriarchy in his annoying little manger is just about over for another year. At long last, the ACLU can get back to what it does best: removing swastikas from the LA county seal. Nope – I’m referring to the stunning revelation that, though Presidents going back to Jimmah Carter approved warrantless physical searches during peacetime, *we* have been living with a far worse danger.

That’s right: the NSA may be listening in when Osama bin Laden makes those holiday Friends and Family calls.

After 9/11, you may be wondering why this should concern you. After all, Bill Clinton conducted door to door physical searches on public housing tenants without so much as a by-your-leave from the courts. That is, until he was stopped by the ACLU. Clinton then “ordered Attorney General Janet Reno and Housing Secretary Henry Cisneros to develop a search policy for public housing that was both constitutional and effective“.

Kanye West was strangely silent – perhaps because he was just a gleam in his Daddy’s eye back then. But who can forget that 1990’s Grandmaster Flash paean to ghetto rage?

Don’t push me cause I’m close to the edge
I’m trying not to lose my head
Uh huh ha ha ha

It’s like a jungle sometimes
It makes me wonder how I keep from goin’ under
Bill Clinton doesn’t care about black people

Those were the days… remember how the howls of “Impeach him!” rose to a deafening crescendo on both sides of Congress? I tell you, it was inspiring the way Democrats didn’t let partisanship interfere with principle when the rights of The Little Man were concerned. Of course you’d never know any of this had happened, to read Reason’s Julian Sanchez or the folks at Media Matters. To hear them talk, wiretapping is the worst thing that could possibly happen to a human being. Warrantless home invasions, a pair of frilly panties on the head, or being forced to listen to Christina Aguilera CDs for hours on end simply pale in comparison. Julian is outraged over the prospect of electronic eavesdropping, but most of his argument fails the common-sense test:

Prominent conservative blogger John Hinderaker turns his gaze on the Fourth Amendment’s stipulation that governmental searches be “reasonable” and asks:

Is it reasonable for the administration to do all it can to identify the people who are communicating with known terrorists overseas, via the terrorists’ cell phones and computers, and to learn what terrorist plots are being hatched by those persons?

Which is a fine rhetorical question, but one no more obviously helpful or relevant than its domestic equivalent: Is it reasonable for police to recover murder weapons and stolen goods? The function of judicial oversight is to make reasonably sure that the government is reasonably sure it’s only doing such reasonable things.

First of all, this is hardly a rhetorical question. It goes to the heart of the issue: if a search is reasonable then it clearly does not fall under the Fourth Amendment ban on unreasonable search and seizure.

Second, the purpose of the search matters – what is its intended use? Will it be used to prosecute a defendant in court (and possibly deprive him of his liberty) or simply to prevent a terrorist attack or stop and/or confiscate illegal goods? It makes a difference.

Third, and very importantly, the nature and means of the search are critical in deciding if it is intrusive and, indeed, if it even is a search under the Fourth Amendment.

And finally, the test of reasonableness cannot “reasonably” be divorced from the consequences of not allowing the search.

(continued…)

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