A Response to Delahunty’s “The Fourth Amendment Goes to War”

In a forthcoming essay, The Fourth Amendment Goes to War, Professor Robert J. Delahunty defends the October 2001 OLC opinion he and John Yoo wrote while at the Office of Legal Counsel on how the Fourth Amendment applies in the war on terror. The opinion concluded that the Fourth Amendment does not apply “to the use of the military domestically against foreign terrorists,” and that if it did apply, the courts generally would hold the use of the military domestically against foreign terrorists to be constitutionally reasonable without a warrant because the government interest in protecting the nation would outweigh the relevant privacy interests.

Delahunty argues that the opinion is correct, and he concludes by inviting responses:

Despite the shrill criticisms of the opinion, I have yet to see a convincing refutation of it. Let that be a challenge to those of you who think otherwise. I am open to persuasion, as you should be. Let Law and Reason decide.

I think the OLC opinion’s Fourth Amendment analysis is quite weak, so I thought I would take up Delahunty’s offer and explain why I think so. I will first summarize his arguments, and then offer my own response.

I. Professor Delahunty’s Arguments

Delahunty’s basic claim is that the Fourth Amendment applies differently in times of war. There are two basic paradigms for interpreting the Bill of Rights, Delahunty contends: the law enforcement paradigm and the war paradigm. The Bill of Rights as a whole applies differently at war, and after 9/11, we were at war. The OLC opinion properly “read the Fourth Amendment in that light.”

Delahunty bolsters this case by invoking the “special needs” doctrine of Fourth Amendment law that allows warrantless searches and seizures for legitimate government purposes outside of law enforcement if the searches and seizures are reasonable. For example, in United States v. Green, a 2002 case, the Fifth Circuit upheld a roadblock inside a military base in part on the ground that the purpose of the roadblock was “to protect the military post,” not to detect criminal activity. According to Delahunty, this shows how the search for terrorist suspects triggers a very different set of Fourth Amendment rules.

Delahunty finds particular support in United States v. Verdugo Urquidez, a case held that the Fourth Amendment did not apply to the search of a home in Mexico belonging to a Mexican suspect with no voluntary associations with the United States. A part of the Verdugo opinion reasoned that applying the Fourth Amendment to military activities outside the United States would substantially interfere with the ability of the political branches to respond to foreign siruations properly. Delahunty reasons that the same reasoning should apply to military searches and seizures inside the United States: The governmental interest isn’t any less just because a threat occurs inside the United States.

Delahunty asks what would happen if the government received a tip that a terrorist group had concealed a weapon of mass destruction in an apartment building. Securing the whole building and detaining its residents to look for the WMD would violate the Fourth Amendment under Ybarra v. Illinois, but the alternative would risk hundreds of thousands of lives. Delahunty also points to Murray v. United Kingdom, an opinion by the European Court of Human Rights that interpreted Article 8 of the European Convention of Human Rights. Murray allow the detention of an entire family in the course of identifying a terrorist suspect, and noted that responding to a terrorist threat is different from responding to a traditional criminal threat.

II. A Reply to Professor Delahunty

Before responding on the merits, let me point out that the OLC opinion is highly puzzling because it has no facts. Fourth Amendment law is notoriously fact specific, but the OLC opinion speaks only in grand generalities. In particular, the opinion concludes that the Fourth Amendment does not apply “to the use of the military domestically against foreign terrorists.” But what does that mean? What is the use of the military “against” terrorists? Is a use “against” terrorists if it has the general purpose of undermining terrorism, or is a use against terrorist only if it is actually a search or seizure of an actual terrorist and his property? And what is a “use” of the military? Is surveillance a “use”? Is traditional law enforcement a “use”? It’s hard to know what the OLC opinion is actually trying to say without answers to these questions.

On the merits, the most obvious problem is that the alleged choice between two “paradigms” — the law enforcement paradigm and the war paradaigm — has no support in any Fourth Amendment precedent or text. Indeed, Delahnuty does not rely on any actual Fourth Amendment cases or language to make the case for this fundamental choice. Rather, he looks to constitutional cases and text elsewhere in the Constitution, and then offers the theory that the Bill of Rights as a whole must face this choice. For example, Delahunty relies on the text of the Third Amendment, which distinguishes rights to quarter troops “in times of peace” versus “in times of war.” If the text of one section of the Bill of Rights has a particular feature, Delahunty suggests, it presumably carries over to other sections.

This is an interesting normative theory, but it is not found in existing Fourth Amendment law. There is no time of peace/time of war distinction in Fourth Amendment law. Indeed, the most significant expansions of the scope of the Fourth Amendment occurred in a time of war — the Vietnam war, which was raging at the time of the Warren Court criminal procedure revolution. And this revolution carried over to the national security setting in United States v. United States District Court, the leading case on applying the Fourth Amendment in the national security setting (a case that Delahunty somewhat curiously does not cite). In that case, the Justice Department argued that it did not need a warrant to conduct wiretapping for national security purposes when countering a domestic threat. The Supreme Court disagreed:

These contentions in behalf of a complete exemption from the warrant requirement, when urged on behalf of the President and the national security in its domestic implications, merit the most careful consideration. We certainly do not reject them lightly, especially at a time of worldwide ferment and when civil disorders in this country are more prevalent than in the less turbulent periods of our history. There is, no doubt, pragmatic force to the Government’s position.

But we do not think a case has been made for the requested departure from Fourth Amendment standards. The circumstances described do not justify complete exemption of domestic security surveillance from prior judicial scrutiny. Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President’s domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case, we hold that this requires an appropriate prior warrant procedure.

This is all quite far from the imagined choice between a “war paradigm” and a “law enforcement paradigm.” Perhaps there should be such a distinction. But the OLC opinion is supposed to be a statement of existing law, not a creative work of normative constitutional theory, and I think the opinion is wrong in seeing a “war paradigm” in existing law.

I was also not persuaded by Delahunty’s discussion of United States v. Verdugo Urquidez. The quoted passage from that case concerned military activities outside the United States. The Court explained that “the result of accepting [the defendant's] claim would have significant and deleterious consequences for the United States in conducting activities beyond its boundaries” (emphasis added). Indeed, almost every sentence in the paragraph mentions the limitation to extraterritorial searches and seizures. Given that, it is quite a major leap to extend the principle to searches and seizures inside the United States. And the very next sentence suggests one of several possible reasons for the limitation: “The United States frequently employs armed forces outside this country — over 200 times in our history — for the protection of American citizens or national security.” In contrast, such uses inside the country are rare. Of course, that’s not to say that this is the only or even the most persuasive reason to distinguish military searches inside the U.S. and military searches abroad, or that the two cases must be treated differently. My point is only that it’s a major step to say that a hypothetical discussed in the case of the latter justifies the same rule in the case of the former.

The OLC opinion is also odd in how it overlooks the exigent circumstances exception. The memo suggests that the Fourth Amendment must not apply to military operations inside the U.S. (or at least apply very differently) because the contrary would lead to outrageous results — such as not letting the government secure an entire building if an WMD is believed to be hidden inside it. But surely this would fall easily under the exigent circumstances exception to the warrant requirement, which allows reasonable searches and seizures without a warrant in emergency situations. It’s hard to think of a greater emergency than a nuke killing a few hundred thousand people, and the existing exigent circumstances doctrine would easily allow this regardless of whether the military or the police were doing it.

I was even more puzzled by the discussion of how the European Court of Human Rights interpreted Article 8 of the European Convention of Human Rights. Maybe I am just being provincial, but I can’t see how that is remotely relevant to the Fourth Amendment in the United States Constitution.

III. Points of Agreement

I should hasten to point out that I don’t think the Fourth Amendment requires warrants on the battlefield. And this brings me to where I think Delahunty is clearly right: the Fourth Amendment standard for military conduct inside the United States surely is quite different than it would in the traditional law enforcement setting. Between the special needs doctrine, the exigent circumstances exception, and Verdugo-Urquidez, you would have a very different set of rules.

But it’s hard to say much more than that without being presented with some facts, hypothetical or real: As I said earlier, the Fourth Amendment is so fact-specific that grand generalities don’t get you very far. So the opinion is clearly right in its most modest claims, that Fourth Amendment doctrine is sensitive to national security concerns and that the warrant requirement relaxes in light of national security needs. But I think much of the opinion is weak, and its broader claims that the Fourth Amendment does not apply at all to the use of the military in the war on terror is wrong.