THE BLOG
12/27/2005 12:21 pm ET | Updated May 25, 2011

Martial Law?

“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.”

That’s it: the fourth amendment to the United States Constitution, complete and entire: One, single, gloriously clear, and grammatically explicit sentence. If some enterprising entrepreneur will put it on a tee-shirt, I’ll wear it proudly.

In my naiveté I thought a few of us wearing those tee-shirts would be enough to put an end to the inane discussion of whether or not the President has the right to order the NSA to sustain a vast, warrantless, data-mining operation aimed at the international telephone and e-mail communication of Americans. On my stupid reading, the fourth amendment says no twice: no search or seizure without a sworn warrant and no warrant without specifying the places, persons or things sought.

But wait. On the Op Ed page of this morning’s New York Times, a couple of strict constructionists from the Reagan and H. W. Bush Justice Departments are out to set me straight. These guys are lawyers. I’m just a guy who makes his living reading and understanding the English language. According to David B. Rivkin and Lee A. Casey what the President did is ok. Here’s why: “The president has the constitutional authority to acquire foreign intelligence without a warrant or any other type of judicial blessing. The courts have acknowledged this authority, and numerous administrations, both Republican and Democrat have espoused the same view. [Because?] The purpose here is not to detect crime, or to build criminal prosecutions—areas where the Fourth Amendment’s warrant requirements are applicable….” (I presumed to insert that because on the assumption that the last sentence in the passage wasn’t supposed to be a non–sequitor.) However, when I go back, as people like me do, to the text itself, I can’t find any language about “criminal prosecutions.” I suppose the fourth amendment has been a central test in case law about due process, but, I cannot, even imaginatively, construct any limitation to criminal process in the amendment itself, which speaks of “search and seizure.” Does the President have the right to order soldiers to come to my house and take my television or my stereo or the contents of my refrigerator? Apparently Rivkin and Casey say yes, if he does not plan to charge me with a crime, and he sincerely believes, for example, that the forgotten potato, rotting in the back of the vegetable bin, is a threat to national security.

The basis of this extraordinary authority, according to Rivkin and Casey, is that “the Constitution designates the president as commander in chief.” Do I detect a strange elision here? Commander in chief of what? Article II sec 2 of the Constitution says: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” So, as the Commander in Chief, the President can order the military to do things. But does that imply that he or she can command it to do anything? Or that his or her military command extends over the civilian population and the civilian organs of government?

It appears that to Rivkin and Casey Article 2 sec2’s guarantee of civilian control of the military is reversible. In his guise as commander of the military, the president in wartime may place us all under military discipline. What had previously ensured civilian control of the military is now understood to authorize military control of the civilian population. This is an interesting, if perverse, bit of reading. Fortunately those clever folks who wrote the constitution went on to say, in Article II sec 3 that the president: “shall take Care that the Laws be faithfully executed.” Presumably, among those laws, one finds the fourth amendment’s proscription of warrantless search and seizure—in the Bill of Rights, where it cannot be overturned, even by an act of Congress.

Issues about laws are one thing. Lawyers know how to discuss and adjudicate them. But as the implications of the Rivkin-Casey case go beyond issues of laws to the rule of law itself, I become nervous about deferring to their legal training and experience. In my darker moments, I sometimes fear that The Rule of Law—the basic requirement that the laws ought to be “faithfully executed,” even when inconvenient—is deeply and systematically resented by the current administration. In brighter moods, I allow myself to hope that its undermining of the Rule of Law is just an adjunct of its feckless opportunism.