A new warrant-less search issue has broken the surface of the news cycle. From US News and World Report:
In search of a terrorist nuclear bomb, the federal government since 9/11 has run a far-reaching, top secret program to monitor radiation levels at over a hundred Muslim sites in the Washington, D.C., area, including mosques, homes, businesses, and warehouses, plus similar sites in at least five other cities, U.S. News has learned. In numerous cases, the monitoring required investigators to go on to the property under surveillance, although no search warrants or court orders were ever obtained, according to those with knowledge of the program. Some participants were threatened with loss of their jobs when they questioned the legality of the operation, according to these accounts.
I won't comment yet on the legality or lack thereof in this case. I will point out some facts about the Constitution that are in danger of being forgotten in the commentary. Government, constitutional or otherwise, controls the behavior of individuals mostly through sanctions. Break the law and you may pay a fine, or go to jail, or be strapped into a large wooden chair and fried like a piece of Jimmy Dean Pure Pork Sausage.
Constitutional Government controls the behavior of institutions by an entirely different means: the separation of powers. If a policeman seizes a piece of evidence illegally, without a required warrant for example, the policeman doesn't go to jail or pay a fine. Instead some court, part of a distinct branch of government, will refuse to admit that evidence into a trial. This involves a contest of wills and the power to admit or exclude evidence is part of the system of checks and balances.
The complex system of rules governing police searches evolved precisely from a long series of cases where the police stepped up to or over the line. If the Bush administration has crossed the line in its pursuit of national security, this is not a sin against the Constitution. It is in fact the way the Constitution was designed to work. Probably new rules will be necessary as the government adapts to new threats, and the courts will play their role.
Another control on the executive branch is Congress. Congress basically has two weapons to deploy against the Administration. Most importantly, it can refuse to release funds upon which the executive branch depends. Less dramatic and for that reason more effective, it can refuse to do business that the Administration deems vital. For example, it can refuse to renew the Patriot Act, or stall important nominations until it is satisfied with the FBI's behavior. Of course some amply jowled Senator will shout that the President is behaving like "King George," while the Administration will accuse Congress of neglecting national security. But again such contests are the dynamic life of the constitutional system. Step back for a moment, and its the greatest show on earth.
Now I don't know how effective the above program might be. I'm guessing not very, if only because, thank the Lord, nobody has yet smuggled dangerous radioactive materials into the US. But suppose that such materials were found by means of this program. Can one imagine for a moment that some judge is going to exclude a pound of enriched uranium from court and let a would be mass murderer walk free? Not in this universe.
Congress may well take steps to ensure that effective security measures do not unnecessarily trample on basic rights. That's its job. Its part of the Administration's job to make sure that those protections do not allow a terrorist to set off a dirty bomb over Judiciary Square. That's what we pay these guys for.
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