Monday, November 20, 2006


Vice President Cheney and Attorney General Alberto Gonzales are asking Congress to approve certain proposed legislation. They say the legislation is necessary for the defense of the country. We have questions.

Are these two afraid that something they have already done may subject them to prosecution for war crimes (by Germany, or some other country, or by some international body)? If not, why does this legislation provide retroactive immunity to our agents for war crimes committed during the period September, 2001 to September 2006?

Leave that motivation aside. Address the merits of their proposed legislation which authorizes searchs and seizures with probable cause, but without a warrant. The Fourh Amendment forbids unreasonable searchs and seizures; but it goes further and in effect defines unreasonable. The amendment has two parts. For a search or seizure to be reasonable, first there must be probable cause, and second, except in exigent circumstances, that probable cause must be submitted by the law enforcement officers to a neutral, independent magistrate and a warrant (okay in writing) obtained. There is no reason to believe that the Fourth Amendment procedure would interfere with any legitimate procedure. For example, if there is good reason to monitor all calls from country X, get a warrant, a blanket warrant. You come up with the scenario (need) and I, as a federal judge, will give you a warrant. If you have an emergency, act and then seek approval. What is the problem? No one has said, except to spin the argument so that a "liberal" demand for a warrant is spun to be a liberal demand that the search or seizure be forbidden.

It seems that the Vice President and Attrney General both are of the opinion that the warrant requirement of the Fourh Amendment is inapplicable because this nation is at war and the powers of the President to search and seize are not limited by the Fourth Amendment. Let that be the issue, and let us debate and settle it immediately. Then let us abide the decision or, if we want to, leave the country.