In a story on the secret body of law being created by the FISA court, The New York Times reports that "in one of the court's most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the 'special needs' doctrine and carved out an exception to the Fourth Amendment's requirement of a warrant for searches and seizures, the officials said." A judicially created exception to the Fourth Amendment?! How did that happen, you might wonder.
The newspaper explains:
The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government's need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.'s collection and examination of Americans' communications data to track possible terrorists does not run afoul of the Fourth Amendment...
The article goes on to quote a legal expert who explains why the FISA court's expansion of the 1989 precedent is highly dubious (and not just because it was issued in secret, though that is also problematic). And the FISA court's interpretation is wrongheaded.
But that doesn't mean it wasn't anticipated by civil libertarians when that bygone case put us on the slippery slope we've tumbled down. It is thus the perfect time to return to Justice Thurgood Marshall's dissent in Skinner v. Railway Labor Executives' Association.
What follows is a condensed version.
The issue in this case is not whether declaring a war on illegal drugs is good public policy. The importance of ridding our society of such drugs is, by now, apparent to all. Rather, the issue here is whether the Government's deployment in that war of a particularly draconian weapon -- the compulsory collection and chemical testing of railroad workers' blood and urine -- comports with the Fourth Amendment. Precisely because the need for action against the drug scourge is manifest, the need for vigilance against unconstitutional excess is great. History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure. The World War II relocation camp cases, and the Red scare and McCarthy-era internal subversion cases, are only the most extreme reminders that, when we allow fundamental freedoms to be sacrificed in the name of real or perceived exigency, we invariably come to regret it.
In permitting the Government to force entire railroad crews to submit to invasive blood and urine tests, even when it lacks any evidence of drug or alcohol use or other wrongdoing, the majority today joins those shortsighted courts which have allowed basic constitutional rights to fall prey to momentary emergencies. The majority holds that the need of the Federal Railroad Administration (FRA) to deter and diagnose train accidents outweighs any "minimal" intrusions on personal dignity and privacy posed by mass toxicological testing of persons who have given no indication whatsoever of impairment. In reaching this result, the majority ignores the text and doctrinal history of the Fourth Amendment, which require that highly intrusive searches of this type be based on probable cause, not on the evanescent cost-benefit calculations of agencies or judges...
The majority purports to limit its decision to post-accident testing of workers in "safety-sensitive" jobs... But the damage done to the Fourth Amendment is not so easily cabined. The majority's acceptance of dragnet blood and urine testing ensures that the first, and worst, casualty of the war on drugs will be the precious liberties of our citizens. I therefore dissent.
The Court today takes its longest step yet toward reading the probable cause requirement out of the Fourth Amendment. For the fourth time in as many years, a majority holds that a "'special need, beyond the normal need for law enforcement,'" makes the "requirement" of probable cause "impracticable." With the recognition of "the Government's interest in regulating the conduct of railroad employees to ensure safety" as such a need, the Court has now permitted "special needs" to displace constitutional text in each of the four categories of searches enumerated in the Fourth Amendment: searches of "persons," "houses," "papers," and "effects."
The process by which a constitutional "requirement" can be dispensed with as "impracticable" is an elusive one to me. The Fourth Amendment provides that
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.
The majority's recitation of the Amendment, remarkably, leaves off after the word "violated," but the remainder of the Amendment -- the Warrant Clause -- is not so easily excised. As this Court has long recognized, the Framers intended the provisions of that Clause -- a warrant and probable cause -- to "provide the yardstick against which official searches and seizures are to be measured." Without the content which those provisions give to the Fourth Amendment's overarching command that searches and seizures be "reasonable," the Amendment lies virtually devoid of meaning, subject to whatever content shifting judicial majorities, concerned about the problems of the day, choose to give to that supple term. Constitutional requirements like probable cause are not fair-weather friends, present when advantageous, conveniently absent when "special needs" make them seem not.
Until recently, an unbroken line of cases had recognized probable cause as an indispensable prerequisite for a full-scale search, regardless of whether such a search was conducted pursuant to a warrant or under one of the recognized exceptions to the warrant requirement. Only where the Government action in question had a "substantially less intrusive" impact on privacy, and thus clearly fell short of a full-scale search, did we relax the probable cause standard. Even in this class of cases, we almost always required the Government to show some individualized suspicion to justify the search...
In the four years since this Court first began recognizing "special needs" exceptions to the Fourth Amendment, the clarity of Fourth Amendment doctrine has been badly distorted, as the Court has eclipsed the probable cause requirement in a patchwork quilt of settings: public school principals' searches of students' belongings, public employers' searches of employees' desks; and probation officers' searches of probationers' homes. Tellingly, each time the Court has found that "special needs" counseled ignoring the literal requirements of the Fourth Amendment for such full-scale searches in favor of a formless and unguided "reasonableness" balancing inquiry, it has concluded that the search in question satisfied that test. I have joined dissenting opinions in each of these cases, protesting the "jettisoning of... the only standard that finds support in the text of the Fourth Amendment" and predicting that the majority's "Rohrschach-like 'balancing test'" portended "a dangerous weakening of the purpose of the Fourth Amendment to protect the privacy and security of our citizens."
The majority's decision today bears out that prophecy. After determining that the Fourth Amendment applies to the FRA's testing regime, the majority embarks on an extended inquiry into whether that regime is "reasonable," an inquiry in which it balances "all the circumstances surrounding the search or seizure and the nature of the search or seizure itself." The result is "special needs" balancing analysis' deepest incursion yet into the core protections of the Fourth Amendment.