Lest you think that the effort to weaken 4th Amendment protections against warrantless search and seizure began with the Protect America Act of 2007 and FISA Amendments Act of 2008, let’s go all the way back to 2001. On September 25, 2001, Deputy Assistant Attorney General John Yoo wrote a memo, a memo released to the public just this month. Yoo’s memo asserted that it was OK for the Bush administration to engage in surveillance, search and seizure without a warrant for regular old criminal investigations, so long as the government said that maybe they’d find something out about terrorists in the process.
Yoo had been asked by President George W. Bush to declare whether snooping around for evidence of criminality without the warrant of a judge was constitutional; John Yoo responded in his memo that the constitutionality of the matter was beside the point. What practically mattered, Yoo wrote, was the tendency of judges to allow evidence in criminal trials, even if the evidence was obtained without a warrant:
Nonetheless, as we observed in 1995, “the courts have been exceedingly deferential to the government and have almost invariably declined to suppress the evidence, whether they applied the ‘primary purpose’ test or left open the possibility of a less demanding standard.” Memorandum for Michael Vatis, Deputy Director, Executive Office for National Security, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Standards for Searches Under Foreign Intelligence Surveillance Act at 1 (Feb. 14, 1995). We believe that the Department would continue to win such deference from the courts…
If the government gains the deference of judges, it doesn’t matter what the constitution says.
And what’s that about 1995? No, Virginia, it’s not just Republicans who have been interested in expanding government power; the Democratic administration of Bill Clinton, to provide just one example, executed physical searches of Aldrich Ames’ home and property without a warrant. The Clintonites just went ahead and did it, getting deferential treatment for their action later on. We can expect anyone with enough ambition for power to enter the leadership of the executive branch — from Bill Clinton to George W. Bush to Barack Obama — to try to stretch the limits of that power. Deferential judges won’t push back. Active members of Congress and judges who take constitutional separation of powers seriously are needed to keep executive power in check.