It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [64]
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As we have seen, the Fourth Amendment protects against warrants being issued without probable cause, an oath or affirmation, and the specification of the “place to be searched” and “the persons or things to be seized.” Self-written search warrants do not fulfill any of these requirements. Government officials now have the authority to issue blanket self-written search warrants without an oath or affirmation before any judge. These search warrants do not need to describe a particular location, device, or individual for which they are issued, clearly violating the Fourth Amendment and the right to be secure in our “persons, houses, papers, and effects.” Moreover, while the government maintains self-written search warrants are “an indispensable tool and building block of an investigation that contributes significantly to the FBI’s ability to carry out its national security responsibilities by directly supporting the furtherance of the counterterrorism, counterintelligence and intelligence missions,” the statistics paint another portrait.37
A 2007 Justice Department Inspector General audit revealed that not only were self-written search warrants being used to prosecute ordinary criminal activity unrelated to national security, but also government officials misused their authority by evading limits on the self-written search warrants and underreporting the number of warrants issued. Even though these abuses were revealed, the most recent Department of Justice report to Congress shows the use of self-written search warrants is increasing dramatically. For example, in 2008, 24,744 were issued, compared to 16,804 in 2007.38
If self-written search warrants were not bad enough, Section 213 concerning “sneak and peek” warrants further invades your natural right to privacy. This section amended the section of the United States Code on the “Effect of Rules of Court,” and allows for a “delayed notice” of search warrants, meaning a target, whose home or business is searched, is not immediately notified.39 Thus, government officials can enter your home, search for evidence, and then use the evidence in a criminal investigation, without telling you until eighteen months later.
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If not for the seriousness of the subject matter, it is almost laughable that the government attempts to argue the constitutionality of these actions. Let me correct myself. The government will sometimes argue the constitutionality of these actions. Why sometimes? Because the government does not want to take these cases to the Supreme Court for fear that the Court will rule the entire Patriot Act unconstitutional; it instead manipulates the judicial system and leaves it to the lower federal courts to issue holdings on each issue, thus leaving a legal system with opposing precedents relating to your constitutional right of privacy.
You Were Searching for What on the Internet?!
Now you may be saying to yourself, I want America to be secure and free from terrorists, and I don’t have anything to hide, so why should I care if the government is tracking my trips to Las Vegas or illegally enters my home? Well, you may not have anything to hide now, but what if you got caught up with the wrong crowd and because of mere association were charged with a crime? Then would you be okay with the government using this illegally obtained evidence against you? Would you care if the government read your mail before you received it, and requested information on the Web sites you visited or the searches you performed through your Web browser?
Yes, the government is even willing to go so far as to