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Warrantless searches or constitutional protections?

By J. Bradley Jansen
web posted May 27, 2002

There has been a much-debated controversy between the government's ability to secure our rights and liberties and its ability to go after the bad guys. In the current debate, the bad guys are genuinely bad and threaten our lives and liberties. No one questions that the government should get all of the information it needs to bring the perpetrators of the tragedies of 9/11 to justice. The real question is by what means.

With unveiled calls to patriotism, government spokesmen have been urging greater investigatory powers and criticize those who raise questions that might impede their quest to go after terrorists. A closer look at the issues might indicate who is closer to the ideas of our Founding Fathers and better able to carry the banner of patriotism.

The Fourth Amendment to the Constitution was ratified as part of the original Bill of Rights. It reads simply, "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."

At issue now is a proposal in both the House and Senate to grant the U.S. Customs Service the authority to search outbound international mail without a warrant. While I have been publicly critical of the U.S. Postal Service for their poor overall record on privacy, I will admit that they have been consistent and resolute in their adherence to our Fourth Amendment protections against warrantless searches.

On one basic level, this is a bureaucratic turf battle with Customs trying to poach authority from the Post Office. Between the two, on this issue, the Post Office has the better case and opposes the "Border Search Authority for Certain Contraband in Outbound Mail" provision. While the Postal Service maintains that it works vigorously to interdict contraband in the mail, they say that never in our history have federal officials opened and searched the personal correspondence of American citizens without a warrant.

Customs officials have been lobbying the Hill explaining that they need to be able to open outbound international mail without a warrant if they have reasonable cause to suspect the mail contains certain contraband. Reasonable cause? This is legalese for saying that they would like to do whatever they want without having to meet the probable cause standard that has been in effect ever since the Bill of Rights was ratified in 1791.

A major risk of granting this authority to Customs Officials would be the lowering of professional standards and the return of the civil asset forfeiture abuses that Congress worked to correct in the Civil Asset Forfeiture Reform Act of 2000. Since nearly all currency here has trace amounts of cocaine, trained dogs of the Customs Service would automatically alert officials to the presence of all cash being shipped.

Unfortunately, I fear that such circumstances, coupled with the proposed new authority, would quickly degenerate into a feeding frenzy for bureaucrats who chronically feel that they suffer the consequences of limited budgets. Of course, reform of the civil asset forfeiture laws so that no money seized goes to the agencies involved would go a long way to undo this perverse economic incentive.

One unintended consequence of such a scenario would be to discriminate disproportionately against the poor and racial and ethnic minorities. About one-fifth of this country is considered "unbanked" and has to rely on (expensive to them) money service providers. While dispatching cash may be unwise, the poor should not be targeted with the loss of all of their money for the crime of trusting the U.S. Post Office to uphold their Constitutional rights.

Millions of people come to this country legally, work legally and send money back home. (Of course, many citizens also transfer funds abroad for perfectly legal reasons.) Remittances from foreign workers are prime source of income for many developing countries-especially in the poorer parts of this hemisphere. Such incomes ameliorate the problems that otherwise manifest themselves in illegal immigration and drug trafficking problems here. Sending money to family back home through the formal banking system is often not a viable option due to corrupt foreign banking practices -- if banks even exist in the locales.

The reasons for the Congress to consider such measures do exist. Customs officials lobbying the Hill have raised many valid arguments. However, their solution goes too far. A better compromise would be to allow agents the authority to detain suspicious mail in order to grant them time to seek a court order as the Framers of the Constitution provided. If they do have probable cause, I hope they protect us from terrorism.

J. Bradley Jansen is Deputy Director of the Center for Technology Policy at the Free Congress Foundation.

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