an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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.
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?
Since 12/12/2000, certainly since 9/11/2001, the Constitution has been effectively replaced by the doctrine of lex est, quod rex vult.