Balkinization  

Friday, July 14, 2006

Breaking and Entering Under the Specter Bill

JB

In addition to Marty's and my posts on why the proposed FISA bill gives the President a blank check to engage in warrantless electronic surveillance, it appears that the Specter bill also gives the President a blank check to engage in warrantless physical searches-- i.e. breaking and entering-- as long as he claims that he is engaged in foreign intelligence surveillance. 18 U.S.C. 1827 currently makes it a crime to "execute a physical search within the United States [for the purpose of obtaining foreign intelligence information] except as authorized by statute." That is, under the current rules, if the President wants to break into someone's house to look for evidence of spying, he has to comply with FISA first. Specter's bill amends this provision to read "except as authorized by statute or the Constitution." In other words, physical searches are not illegal if the President breaks into your house asserting his Article II powers as Commander-in-Chief. None of FISA's oversight procedures apply.

So when you hear that sound of broken glass in the night, don't be alarmed. It's not a burglar. It's not a thief. It's just some agents from the government, and they're here to help.


Comments:

But never fear; you can always sue for damages to your door if they don't knock.
 

Profs. Balkin and Lederman:

1. Insofar as U.S. Citizens acting domestically are concerned--in the form of an entirely home-grown Al Qaeda cell, for example (and on the assumption that Al Qaeda's belief system, at bottom, represent's a political point of view) -- wouldn't Spector's bill overule the Keith Case's holding that the 4th A's warrant requirement applies to domestic security spying [See US v. USDC, 407 US 297 (1972)]? I thought, according to the Judicial supremecy opinions of Rehnquist in U.S. v. Dickerson and Kennedy in Employment Div. v. Smith opinions, Congress has no power to do that.

2. Spector's bill, if approved, appears to strip all federal and state courts of jurisdiction to remedy Constitution violations in the form of illegal searchs that violate the 4th A? Is that permissible under the 5th Amendment's due process clause? Does that mean that the 4th A is a paper tigercub? What of CJ Marshall's statement in Marbury (citing Blackstone) that where there's a right, there is also a remedy? 5 U.S. at 163. And what about Bell v. Hood and Bivens? Do you believe Spector's bill implicity carves out an exception to 1331 jurisdiction?

3. What does Spector's Sec. 801 -- the part saying that a president's Art II powers are the exception that swallows the entire statute -- effectively say about a president's power to summarily use "black bag jobs" to kill suspected terrorists on US soil? I don't mean just your average illegal alien who snuck across the border. I mean US citizen? Have we reached the point--in this election year--that Congress will say that the Cheney/Addington view of Art. II, that NOTHING in our Constitution or laws trumps a president's claim of authority under Art II that s/he can do anything, absolutely anything, in the name of national security?
 

Good point. Note also that under current law the president already has the authority to order warrantless physical searches for 15 days after any declaration of war. (50 U.S.C. 1829) The Specter bill apparently eliminates that 15 day limit and makes the president’s power in this regard unconstrained, thus capitulating to the administration’s view that we are in a never-ending state of war. Unreal.

(This reading assumes that the reference in the Specter bill under “Physical Searches” to the elimination of section 209 really should refer to the striking of section “309.” I think this how this is supposed to read, and that this is just a typo. Also, for what it’s worth, I’m no expert here but I think the reference in the text of Jack’s post to 18 U.S.C. 1827 should be to 50 U.S.C. 1827.)
 

"So when you hear that sound of broken glass in the night, don't be alarmed. It's not a burglar. It's not a thief. It's just some agents from the government, and they're here to help."

Ironically enough, there was a time when Republicans regarded as axiomatic - and Democrats opposed strenuously - the worldview underlying Ronald Reagan's aphorism that "[t]he nine most terrifying words in the English language are 'I'm from the government and I'm here to help.'"
 

Have we reached the point--in this election year--that Congress will say that the Cheney/Addington view of Art. II, that NOTHING in our Constitution or laws trumps a president's claim of authority under Art II that s/he can do anything, absolutely anything, in the name of national security?


Yes.

Since 12/12/2000, certainly since 9/11/2001, the Constitution has been effectively replaced by the doctrine of lex est, quod rex vult.
 

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