| | |
|
RebeccaBonnevieFirstPaper 7 - 10 May 2018 - Main.EbenMoglen
|
| |
| META TOPICPARENT | name="FirstPaper" |
|---|
There is no Spook/Cop distinction at the Border | | | In the beginning of the Republic the Founders codified a Spook/Cop distinction into the Fourth Amendment. The role of the cop was to search to collect evidence, and the Fourth Amendment made sure that such searches couldn’t take place “unreasonably”. The Courts considered an "unreasonable" search to mean one without probable cause and a judicial warrant. | |
>
> |
Not, however, on the basis of the distinction that came to exist, because the founding legislators of the republic had no real conception of the intelligence function in government independent of the small-scale, bribery-enabled information collection by diplomats and spying in actual warfare. Until 1947, the national intelligence system had no legislative basis.
| | | The history of the border search doctrine
The Congress that created that provision also created an exception to it – to ensure that importers were paying taxes the State could conduct warrantless searches at the international border. This financial interest of the State remained the justification of the border search exception for about a hundred and forty years before it changed. In the 1920s George Carroll and John Kiro drove a van full of whiskey and gin from from Detroit to Grand Rapids and were intercepted on the way. The Court found that a subsequent warrantless search of the van was not in violation of the Fourth Amendment because the agents who had searched them had reasonable belief sufficient for probable cause therefore the liquor could be admitted at trial.
Notes
:
:
| | | Disclaimer for plagiarism purposes:
Some of these statements have been adapted from a paper on the border search exception for the class "Current Issues in Civil Liberties" but the Spook/Cop angle is unique to here. | |
>
> |
Not plagiarism, because you can't falsely assert authorship of that which you have indeed authored yourself. You shouldn't disclaim what you have no reason to deny. As for the double-counting of your effort, it's okay here, because I say it is, but disclosure is appropriate.
On the substance, I think your account of the situation is correct: on the border, the US behaves as pretty much all other nation states do: it collects information and conducts political scrutiny in addition to collecting taxes and blocking contraband. This is less a change of constitutional theory and more a result of increased cognitive capacity: nations can do more at their borders with 21st-century than with 18th-century technology, and they do so. Whatever law constrains them there is less likely to be their own constitutional arrangements domestically than their external legal commitments to other states. Lacking any international consensus, to put it mildly, for subjecting border control to anti-spook regulation, it won't happen.
| | |
|
|
|
|
|
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
|
|
| | |