Tuesday, May 09, 2006

Hayden right; Kaplan, as usual, wrong.

Over at War Stories, Kaplan seems mildly approving of Gen. Hayden but frets about the NSA's "domestic eavesdropping" particularly in light of his answer to a Knight-Ridder reporter's pestering him about the Fourth Amendment. The General said he was square with the Fourth since it required searches to be "reasonable," while the reporter seemed to think it required a warrant for any and all searches, a view Kaplan endores.

However, Hayden is right and Kaplan and the reporter wrong. The Fourth Amendment requires that all searches be "reasonable" and Expand... also makes "probable cause" supported by a sworn statement the basis for issuance of a warrant. This certainly does not mean -- nor did it ever mean -- that there can never be warrantless searches. It does mean that all searches, with or without a warrant, must be reasonable. This is the distinction that Hayden made – and has expounded on in greater detail many times elsewhere.

In fact, there are a myriad of circumstances where the courts have upheld warrantless searches. One of the most important of these is precisely the interception of "foreign intelligence information" – including information on non-state terrorist groups – which is the mission of the NSA. In all four cases where federal appeals courts have addressed this issue, those courts have ruled that foreign intelligence gathering is an exception to the general warrant requirement for electronic surveillance. To be sure, the courts have not yet addressed the specific issue of the post-9/11 NSA program (and may never), but Hayden was surely on solid enough ground with the relevant court decisions outstanding not to question the President's authority to order him the undertake the warrantless monitoring of some targeted international communications involving persons inside the United States. Of course, no court would permit such "foreign intelligence information" obtained withou warrant to be entered as evidence in a criminal trial, but that is a separate matter.

Underscoring the fact that there is no hard and fast "thou shalt never search without a warrant" rule, here are just a few of the situations where courts have held that warrantless searches or seizures may take place;

- Search of persons who have been detained lawfully;

- Searches of persons who are on bail, probation or parole

- Search of a home of any person in order to secure the premises while a warrant is being obtained;

- Search and seizure of items displayed in plain view and that are obviously criminal or dangerous in nature;

- Search of anything belonging to a person under exigent circumstances if considerations of public safety make obtaining a warrant impractical;

- Search of the home and belongings of one person if another person, who has apparent authority over the premises, consents;

- Search of a car anytime if a law officer concludes there is probable cause to believe it contains contraband or any evidence of a crime;

- Search of any closed container inside if a law officer concludes there is probable cause to search the car;

- Search of any apparently abandoned property, regardless of its ownership or the reason it was abandoned;

- Search of any property that has lawfully been seized in order to create an inventory and protect police from potential hazards or civil claims;

- Search — even a strip search — at the U.S. border of any person entering or leaving the country;

- Search at the U.S. border of the baggage and other property of anyone entering or leaving the country;

- Search of any person seeking to enter a public building;

- Random searches of persons at police checkpoints established for public-safety purposes (such as to detect and discourage drunk driving);

- Search of anyone, including U.S. citizens and their vessels on the high seas;

- Searches of docks and piers;

- Searches of bars or nightclubs to police underage drinking;

- Searches of auto-repair shops;

- Searches of the books of gem dealers in order to discourage traffic in stolen goods;

- Drug screening of persons working in government, schools; emergency services, the transportation industry, and nuclear plants;

- Drug screening of kids at school.

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