[IP] more on query A question of unlimited powers
Begin forwarded message:
From: "J. Noble" <jfnbl@xxxxxxxxxxxxx>
Date: January 15, 2006 1:56:17 PM EST
To: dave@xxxxxxxxxx, ip@xxxxxxxxxxxxxx
Subject: Re: [IP] query A question of unlimited powers
The President's acknowledged disregard of FISA is not perforce a
suspension of the Fourth Amendment, which guarantees the "right of
the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures." Warrantless
searches and seizures have been held not unreasonable in a variety of
exigent circumstances, including the opportunistic exploitation of
probable cause to search an automobile that might be moved before
they can get a warrant, and the seizure of evidence in plan view --
either of which might take the interception of unencrypted
communications outside the protection against unreasonable searches
and seizures.
The Third Amendment is less forgiving, but it's hard to figure how it
might be violated except by the government's failure to call up
reservists living at home with parents who wish they would move out,
or by Saddam Hussein complaining about U.S. soldiers quartered in the
Royal Palace. But even if you could come up with a hypothetical that
stated a claim, the only case addressing the 3d Amendment is Engblom
v. Carey, 677 F.2d 957 (2d Cir., 1982), remanding the trial court's
dismissal and holding that striking corrections officers barred from
their corrections facility residences and replaced by National Guard
troops might have a claim; but on appeal from the remand, the Court
agreed that the claim must be dismissed because NY Gov. Carey had
immunity on the ground that the corrections officers' Third Amendment
rights were not clearly established.
So the short answer is that the President can't "suspend" either the
Third or the Fourth Amendment, and hasn't done either until he defies
a court ruling that he has.
John Noble
At 4:24 PM -0500 1/13/06, David Farber wrote:
From: Lee Revell <rlrevell@xxxxxxxxxxx>
Date: January 13, 2006 4:04:21 PM EST
To: dave@xxxxxxxxxx
Cc: ip <ip@xxxxxxxxxxxxxx>, jsq@xxxxxxxxxxxxxx
Subject: Re: [IP] A question of unlimited powers
I'd just like someone in the press corps to ask this simple question
(not mine, someone posted it on volokh.com):
If the President can suspend the 4th Amendment search and seizure
clause
in the name of national security, can he likewise suspend the 3rd
amendment prohibition on quartering soldiers in homes?
-------------------------------------
You are subscribed as roessler@xxxxxxxxxxxxxxxxxx
To manage your subscription, go to
http://v2.listbox.com/member/?listname=ip
Archives at: http://www.interesting-people.org/archives/interesting-people/