Where Does the Fourth Amendment Begin and End?

If you read me regularly, you know I'm a champion of the fourth amendment. Even if you don't read me regularly, you can probably figure as much from my writing.

There are a lot of questions floating around now about whether President Bush (AND several key members of Congress, WITH the complicity of the New York Times,  although the media conveniently deflects this fact) violated the fourth amendment in authorizing illegal wiretaps. Arguably, the fourth AND fifth amendments could come into play here, a fact that also hasn't escaped talking heads. Frankly, in looking at the way the fourth amendment is applied, the fifth amendment argument is the stronger of the two arguments. In this article, I'm not going to spend a lot of time addressing the fifth amendment questions, or the 1978 wiretapping law (yes, the violation is still questionable, at least according to several judicial analysts...it's just not the topic I want to discuss here).

Although one's communications fall under the umbrella of a "right to privacy", such is an IMPLIED right from SCOTUS interpretations of the fourth, fifth, and sixth amendments and is not expressly guaranteed in the US Constitution. Your fourth amendment rights have generally been interpretated to mean your home, the articles on your person, and, to a lesser extent, your vehicle. Even in these cases, a "Terry standard" is occasionally applied; that is, was the search "reasonably justified" at its inception. While the definition is open to judicial interpretation, most judges at the appellate levels tend to side with the individual, not the government when defining reasonable justification. If you are pulled over for speeding, for instance, and a run of your driver's license shows several convictions for drug trafficking, you might as well sit tight. It's going to be a LONG night. Similarly, if police approach your house and smell chemicals consistent with the manufacture of methamphetamines, they will probably enter, as there isn't sufficient time to get a warrant beforehand.

But communications are another matter. Even in the best of circumstances, communications have fallen into a judicial "gray area". For at least 30 years, the government has wiretapped phones when there's a suspicion of gambling activity, or of drug trafficking. They have usually used a secret court to obtain a warrant, but some of their arrests have been upheld without a warrant. To put it simply, communication devices are not consistently upheld as one's property as far as the fourth amendment is concerned. And the Bush administration COULD make the argument that the "Terry standard" applies here, as, at least according to the information we have at present, all of the wiretaps involved calls to or from individuals with known al Qaeda links.

I don't like what President Bush did. At all. I question its constitutionality, and its legality as regards the 1978 wiretapping law. I'd like nothing more than to see him impeached, tried and convicted, IF, and ONLY if, he violated the laws of the land. Also if and only if members of Congress and the media who were aware of these actions are tried as co-conspirators. Bush's should NOt be the only head that rolls.

If a special prosecutor is appointed to investigate whether Bush broke the law or not, however, I believe they will need to look beyond the fourth amendment. There's simply not enough there to make a compelling case.