Wednesday, March 19, 2014

Why Isn't the Fourth Amendment Classified as Top Secret?

Think how much useful information its text and the case law surrounding it tell America's enemies.  

 

Notice how much the Fourth Amendment tells our enemies. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated," it states, "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."

The Framers are usually considered patriots. Yet they gave traitors and criminals in their midst such powerful knowledge about concealing evidence of skullduggery! Today every terrorist with access to a pocket Constitution is privy to the same text. And thanks to the Supreme Court's practice of publishing its opinions, al-Qaeda need only have an Internet connection to gain a very nuanced, specific understanding of how the Fourth Amendment is applied in individual cases, how it constrains law enforcement, and how to exploit those limits.

Such were my thoughts Friday at UCLA Law School, where Stewart Baker, an attorney who worked in the Department of Homeland Security during the Bush Administration, participated in a debate about Edward Snowden. Some of his remarks focused on the NSA whistleblower's professed desire to trigger a debate among Americans, many of whom think it's their right to weigh in on all policy controversies.

Baker disagrees.

"You can't debate our intelligence capabilities and how to control them in the public without disclosing all of the things that you're discussing to the very people you're trying to gather intelligence about," he said. "Your targets are listening to the debates." In fact, he continued, they're listening particularly closely. For that reason, publicly debating intelligence techniques, targets and limits is foolish. As soon as targets figure out the limits of what authorities can touch, they'll change their tactics accordingly. In his view, limits should be set in secret. A class of overseers with security clearances can make the necessary judgment calls.

For the rest of the story: http://www.theatlantic.com/politics/archive/2014/03/why-isnt-the-fourth-amendment-classified-as-top-secret/284439/

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