THE RIGHT TO BE LET ALONE: A CORNERSTONE OF LIBERTY
BY BRUCE FEIN*
The right to be let alone sparked the American Revolution. It found _expression_ in fierce
resistance to British writs of assistance which empowered petty officials to rummage through
businesses and homes indiscriminately hoping to come upon smuggled goods. The spirit of
opposition was captured in William Pitt the Elder’s electrifying 1763 address to Parliament
celebrating the right of privacy against the British King: "The poorest man may in his cottage bid defiance to all the forces of the Crown. It may
be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain
may enter; but the King of England cannot enter — all his force dares not cross the
threshold of the ruined tenement!."
The right to be let alone was enshrined in the Fourth Amendment. It prohibits
unreasonable searches or seizures, and requires warrants to be issued by neutral magistrates,
predicated on probable cause of wrongdoing and particularly describing the places to be searched
and the persons of things to be seized.
The right to be let alone is a pillar of self-government. It is the most cherished right
among civilized people. It encourages citizens to dissent or protest against government abuses
immunized against retaliation through gratuitous, suspicionless, embarrassing, and costly
frivolous investigations. No one is a saint.
Nothing is more deadly to self-government than a blindly obedient inert or docile
citizenry. United States Supreme Court Justice and Chief Prosecutor before the post-World War
II Nuremberg Tribunal underscored in United States v. Di Re (1948): “[T[he forefathers, after
consulting the lessons of history, designed our Constitution to place obstacles in the way of a too
permeating police surveillance, which they seemed to think was a greater danger to a free people
than the escape of some criminals from punishment.”
This is prologue to the implacable resistance of the intelligence community to require a
Fourth Amendment warrant under the Foreign Intelligence Surveillance Act to search for the
communications of United States citizens either referenced in a conversation involving foreign
targets or directly communicating with the same (so-called “incidental collection”) as a condition
of extending section 702. A warrant requirement, it is argued, would diminish optimal efficiency
in arresting potential or embryonic international terrorism. Perhaps. But that cure of dragnet
searches is worse than the disease according to the Amendment: inducing citizen passivity or
mindless adherence to government orders reminiscent of Adolf Hitler’s Third Reich.
The Fourth Amendment, moreover, is not a suicide pact. Warrants are issued based on
the totality of the circumstances. Probable cause is an indulgent, non-exacting standard, i.e., a
fair probability (but less than more likely than not) that evidence of crime will be discovered.
Magistrates are reluctant to deny warrant requests. The vast majority-exceeding 90 percent-are
quickly approved. Warrants also avoid squandering intelligence or law enforcement resources on
wild goose chases. They require reasonable homework before encroaching on citizen privacy.
The science of government is the science of experiment. FISA should be amended to
require a Fourth Amendment warrant to search for communications of American citizens
obtained through incidental collection. But House and Senate rules should require floor votes on
whether to repeal the warrant requirement after five years. That is more than ample time for the
intelligence community to assemble evidence, if any exists, that suspicionless searches are
necessary to protect the United States from an international terrorist attack.
Experience teaches skepticism of intelligence community risk assessments. The
probability of dying from international terrorism in the United States is less than the probability
of dying from a falling vending machine. Intelligence community orthodoxies attempt to keep
this reassuring fact a secret.
*Bruce Fein was associate deputy attorney general under President Reagan and is author
of American Empire Before The Fall and Constitutional Peril: The Life and Death Struggle For
Our Constitution and Democracy.