Thursday, November 08, 2007

Whatever Happened to Extrigent Circumstances?

An exigent circumstance, in the American law of criminal procedure, allows law enforcement to enter a structure without a warrant, or if they have a "knock and announce" warrant, without knocking and waiting for refusal under certain circumstances. It must be a situation where people are in imminent danger, evidence faces imminent destruction or a suspect will escape.

Generally, an emergency, a pressing necessity, or a set of circumstances requiring immediate attention or swift action. In the criminal procedure context, exigent circumstances means:

An emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect, or destruction of evidence. There is no ready litmus test for determining whether such circumstances exist, and in each case the extraordinary situation must be measured by the facts known by officials.
If it’s truly an emergency situation – the type cited to justify warrant less surveillance - then what’s the need for legalizing such broadly? Any such true emergency can always be justified openly: a thought that the Bush Administration would not agree. From the book The Terror Presidency: Law and Judgment Inside the Bush Administration by Jack Goldsmith, former Assistant Attorney General, Office of Legal Counsel:

“The President can also ignore the law, and act extralegally,” I said.

Gonzales and Addington looked at me as if I was crazy. I was not urging the President to break the law, I emphasized. I was simply letting his legal advisors that there were honorable precedents, going back to the founding of the nation, of defying legal restrictions in time of crisis. “A strict observance of the written laws is doubtless one of the highest virtues of a good citizen, but it is not the highest” Thomas Jefferson wrote to a friend in 1810. “The laws of necessity, of self preservation, when in danger, are of higher obligation. To loose our country by a scrupulous adherence to written laws, would be to loose the law itself, with life liberty property and all of those who are enjoying then with us; thus absurdly sacrificing the end to the means.”

Jefferson was writing in a tradition of prerogative power that went back to the influential English philosopher John Locke, who believed that a leader’s first duty was to protect the country, not follow the law. But there was an important caveat to the prerogative, which I conveyed to Gonzales and Addington. In order to prevent abuse, the leader who disregards the laws should do so publicly, throwing himself on the mercy of congress and the people so that they could decide whether the emergency was severe enough to warrant extralegal action. “The line between cases may be difficult” Jefferson noted, “but the good officer is bound to draw it at his own peril, and throw himself on the justice of his country and the rectitude of his motives.” Public avowal of extralegal actions, and after-the-fact political scrutiny, limited and legitimized the legitimized the dangerous presidential prerogative.

Gonzales, Addington, and their respective clients were not remotely interested in this view. They believed their actions lawful, and even if they didn’t, they could not confess error publicly, as the logical of the prerogative power required, because doing so would tip off the enemy about our counterterrorist efforts…

And with “terrorists” comprising what, 0.0001% of the population what’s the need for the capacity of a 250,000 employee US Department of Homeland Security- one monitor per 1,200 people of the general population?

No comments: