The “Special Needs” Exception to the Fourth Amendment and Antiterrorism Programs

Earlier, I promised further information on the special needs exception – here goes. The exception applies when the government can show a special need beyond the needs of ordinary law enforcement. It allows for governmental searches that do not meet the requirements of the Fourth Amendment of the US Constitution – normally, the police need a warrant that is grounded in particularized suspicion. Basically, in order to go through your papers, listen to your phone calls, or collect and analyze your DNA, the government needs to offer some proof to a judge that you are engaged in some sort of wrong doing. The special needs exception allows the government to proceed without such proof. In the past, it has been used to support DUI checkpoints on the highways, drug tests of school kids participating in extra-crurricular activities, and a handful of other searches.

Controversially, the Bush Administration has asserted that the special needs exception justifies its wiretapping of domestic phone calls under the Terrorist Surveillance Program. Granted, the threat from terrorism is grave, but the Framers of the Constitution made a conscious choice to protect some individual liberties from invasion by the federal government. Under FISA, the Bush Administration had what was essentially a carte blanche to conduct searches on those suspected of ties to terrorism – the FISA court had turned down only a handfull of the over 20,000 requests submitted to it. While the Administration claimed it needed the time and flexibility of determining who and when it searched, the FISA court allows for searches to begin without authorization, as long as authorization is sought within 72 hours after the search begins.

The special needs exception does not justify programs like the Terrorist Surveillance Program, and likely does not justify the expansion of New York’s DNA database that was discussed earlier. If the Fourth Amendment is to retain any meaning, the special needs exception should only be applied in certain situations (likely those that already hold a diminished expectation of privacy, such as the automobile or public school setting), and the searches approved under it should be narrowly tailored to their purpose. When the government asserts only a broad and general interest, and then tries to institute a sweeping program that sucks up the innocent along with the guilty, the courts should step in. To paraphase the well used but pertinent insight, those willing to trade ever increasing amounts of liberty for safety deserve neither

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