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As Dash explains, the Court under Chief Justices Warren Burger and William Rehnquist have twisted and rendered largely ineffective precedents such as Weeks and Mapp - using, he argues, intellectually dishonesty to do so. Rather than overturn these precedents (which would have produced an uproar), they have enfeebled this landmark Fourth Amendment holding by using a more subtle strategy.
As described by Dash, the strategy is this: The Justices proceed by "(1) inventing a balancing test, (2) limiting the number of challenges to unlawful searches and seizures through the doctrine of 'standing,' and (3) creating a good faith exception." (The "standing" doctrine holds that not all persons, but only a select class, are appropriate to be the plaintiffs suing to enforce a particular constitutional right.)
Dash's Particular Concern: The USA Patriot Act
As disturbing as these decisions were to Dash, he explains them with scholarly honesty. But it was the USA Patriot Act that pushed the envelope over the edge for him. (I know this not because of his book, which throughout retains the even temper of a litigator not wanting to annoy either judge or jury with hyperbole, but because of our conversations.)
Dash writes of the USA Patriot Act, that "the president and his attorney general demanded greater search and seizure powers than a permissive Supreme Court had already given them. Though members of Congress grumbled, they submitted to these demands, desiring to appear as patriotic as the president in the war on terrorism." In conversation, however, Sam was less temperate; he expressed outrage at this foolishness -- at the Congress's removing almost all restrains on law enforcement when investigating "terrorism."
To make his point, while waiting for his book to come off the presses, Sam wrote in a Newsday article, "If, as now seems likely, top White House aides leaked the identity of an American undercover agent, they may have committed an act of domestic terrorism as defined by the dragnet language of the Patriot Act their boss wanted so much to help him catch terrorists." (See my prior column for an explanation of why the leak of agent Valerie Plame's identity was criminal.)
Under the Patriot Act, as Sam said to me with a chuckle, all the FBI has to do is tell a judge that it would "impede their investigation" to give the White House notice, and they could sneak into the Oval Office without warning -- carrying approval from a secret court, granted in secret. "Maybe if the president or his aides were investigated under this law they would understand what they are doing," Sam declared.
But if they, and others, would read Dash's The Intruders: Unreasonable Searches and Seizures from King John to John Ashcroft, I doubt the Bush-Cheney reelection bid would make further extensions of the USA Patriot Act a centerpiece of their campaign. Nor would they boast of their war on terrorism to date.
Sam Dash warns: "Our government leaders -- executive, legislative, and judicial branches -- have made many mistakes in the past when they have lost sight of the sacred American values rooted in the Declaration of Independence and the Constitution. We are at the brink of even graver mistakes and assaults on these values. We dare not turn away from them -- for how naked, weak, and poor we will be without them."
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