4th Amendment Part 2

Last week we discussed the exclusionary rule. Lets compare this to the football rule of pass interference. If a defender interferes with the receivers ability to catch the ball, there is a 15 yard penalty. This should be enough of a deterrent to teach players to keep their hands to themselves. But lets say that you are a defender and you know the receiver has you beat and once he catches the ball, he has an easy touchdown. Is the 15 yard penalty better than a touchdown? You bet.

In our post 9-11 America, would you as a government agent be willing to break a few rules if you thought you could prevent a major terrorist attack? This is a difficult question. Could you watch the funerals of thousands but be content that you played by the rules? The opposite argument is that once we trash the constitution, you have played into the hands of our enemies.

So basically we have a no win situation. Or have we created a false dichotomy? Are there other answers? I think it is safe to say the even if we break the rules, some terrorists will slip through. Even if we follow our rules, we sill will catch some if not may of the terrorists.

In the months following 9-11, the Patriot Act was put into play. My first argument against this is the name. Due to the nomenclature, anyone who would speak against it would be anti-patriot. The full name is The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001. Sounds harmless enough.

A short list of the problems which have lead to successful lawsuits against the government include authorization of indefinite detentions of immigrants; "sneak and peek" searches through which law enforcement officers search a home or business without the owner’s or the occupant’s permission or knowledge; the expanded use of “National Security Letters” which allow the FBI to search telephone, email and financial records without a court order; and the expanded access of law enforcement agencies to government records, including library and financial records.

U.S. District Judge Ann Aiken ruled that using the act to authorize secret searches and wiretapping to gather criminal evidence - instead of intelligence gathering - violates the Constitution.

"For over 200 years, this nation has adhered to the rule of law - with unparalleled success," the judge Ann Aiken wrote Wednesday. “A shift to a nation based on extra-constitutional authority is prohibited, as well as ill-advised.” By asking her to dismiss Mayfield's lawsuit, the judge said, the U.S. Attorney General's office was "asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning. This court declines to do so."

I think it is a fair to predict that we will see domestic and foreign terrorism in the US again. It could be tomorrow, next month or in five years but it is coming. For those of us in law enforcement, we made a commitment to our defend our county but in the same breath we swore to defend the constitution. We can’t do one with out the other.