John Whitehead's Commentary
Why the Fourth Amendment is Right and Bush and Ashcroft are Wrong
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.--Fourth Amendment, U.S. ConstitutionOmak is a quaint little community nestled in the green forests of the state of Washington. Several weeks ago, however, it became another example of police power gone amok when heavily-armed officers burst into the wrong trailer at the otherwise quiet Homestead Trailer Park.
Seeking a person on outstanding warrants, the police broke down the door to the wrong home and then jolted a man with a Taser--a device akin to an electric cattle prod that stuns and can reduce the person shocked to a fetal position on the ground. This all happened in front of the man's wife and child.
If this were an isolated incident, it could be written off as a simple police misfire. However, these no-knock, door-smashing affairs have become relatively commonplace. Indeed, various news stories in recent years document the fact that police have on numerous occasions battered down doors, entered the wrong houses and even killed innocent people. These no-knock raids illustrate very clearly just how little protection Americans have against being subjected to unreasonable searches and seizures of their persons and property.
And while I have no doubt that there are many fine policemen in our nation's law enforcement who find this type of activity despicable, what we are faced with has less to do with questionable police conduct than the philosophy that almost anything goes in order to catch an alleged criminal, even if it violates the U.S. Constitution.
That is why it is so disconcerting that President Bush, on the heels of Attorney General John Ashcroft's recent Victory Tour, is now stumping across the country advocating that federal law enforcement officers be allowed to issue administrative subpoenas in so-called terrorism cases--the same type of subpoena power that was dropped from the original version of the U.S.A. Patriot Act when it went before the congressional conference committee.
Under the notorious Patriot Act, the definition of a terrorist is so broad that anyone advocating change could be labeled a terrorist. In other words, if you decide to picket in front of a courthouse--for whatever reason--you, John Q. Public, could be labeled a terrorist and subjected to the many freedom-stripping provisions under current law. Add to this the fact that Bush argues these subpoenas should be obtained by federal police officers, such as FBI agents, without having to gain approval from either judges or grand juries, and the Act becomes that much more ominous. In an age of black-clothed SWAT teams wearing masks and armed with explosive firearms, such a power is very much like that wielded by the secret police of regimes, both past and present, condemned for routinely violating the rights of their own citizens.
The expanded powers Bush is asking for is clearly contrary to both the language and intent of the Fourth Amendment. This provision was added to our Constitution because the American colonists had seen what an unfettered police power could do to a free people. In fact, the British had subjected them to a reign of terror. In colonial times, King George's policemen would crash through doors and search homes. There was virtually no restraint on them.
Those who drafted our Constitution believed that citizens should be able to feel safe in their homes from the possibility that a policeman would come crashing through their door at any second. Thus, they wrote the Fourth Amendment to keep that from happening. They didn't want Americans to be subjected to unreasonable searches, and they didn't want homes searched without a legal search warrant that had the owner's correct name and address on it--one reviewed and approved by a judge. They also didn't want property seized without it saying so on the face of the search warrant.
Notice is key to the Fourth Amendment. A person with notice of a police search can point out irregularities in the warrant, such as the fact that the police are at the wrong address or that the warrant is limited to a search warrant for a stolen car. Thus, if not stated in the search warrant, the police have no authority to be looking through your dresser drawers and otherwise rummaging through your home.
"Removing judges from providing any check or balance on John Ashcroft's subpoenas does not make us safer, it only makes us less free," said Rep. John Conyers (D-Mich.), the ranking Democrat on the House Judiciary Committee. These are sentiments shared by many who fear that since 9/11 our government has overstepped its legitimate bounds and is now advocating practices that abrogate the fundamental principles and values of the American Constitution.
In the end, freedom is not having to look over one's shoulder and worry that those with police power can, without any checks or balances, run roughshod over us and our homes. We should not have to live in fear. But if Bush and Ashcroft get their way, we will surely have to watch our backs.
ABOUT JOHN W. WHITEHEAD
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.
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