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Sam Dash's Warning About Government Intruders:
The Story Of The Rise And Fall Of Fourth Amendment Protections


Friday, Jun. 18, 2004

On May 29, 2004, Sam Dash, who had served as Chief Counsel of the Senate Watergate Committee, departed this mortal coil. (Ironically, former Watergate Special Prosecutor Archibald Cox passed away later the same day.)

Throughout his career as a practicing attorney, prosecutor and law professor, Sam Dash found himself challenging those who abused their powers. When I talked with him shortly before he was hospitalized with the heart problem that would take his life, he was planning to do so again.

"This guy Ashcroft is a very dangerous attorney general," he told me during our last telephone conversation. We were talking about the book he had just finished, The Intruders: Unreasonable Searches and Seizures from King John to John Ashcroft, which has now been published.

I just finished reading Sam's final work, and it is a warning not to be ignored. But before examining his challenge of Ashcroft's abuses of power, a few words about Sam are appropriate. He was man I knew and admired long before Watergate, where his work left a model for legislative investigations.

Sam was not a partisan, but rather a consummate professional. He never looked for gratuitous combat, yet when so engaged, he never shied from saying what needed to be said. He took his work seriously, and as his career evolved, he became one of the nation's leading legal ethicists.

Most knew him as Professor Dash, for he spent the better part of his professional career sharing his knowledge of criminal law and criminal justice with countless students at the Georgetown University Law Center.

Challenging Those Who Abused Their Power

As Chief Counsel to the Senate Watergate Committee, Dash found it necessary to take to task some of the most powerful men in government for abusing their authority. Sam was deeply troubled, for good reasons, about the Nixon White House's illegal wiretaps and unfounded break-ins to obtain information without a search warrant.

When former Attorney General John Mitchell and former Nixon aides John Ehrlichman and Bob Haldeman appeared before the committee, Dash repeatedly pressed them on their abuses of power. And his new book shows that the only thing he agreed with these men about was the fact that they had eroded the rights of Americans under the Fourth Amendment.

Many years after Watergate, Dash again found himself publicly confronting the misuses of power as a part of the Independent Counsel's investigation of President Clinton. Dash had been hired by Independent Counsel Kenneth Starr to serve as his ethics adviser. But he resigned from that post in protest over Starr's improper use of his office to advocate President Clinton's impeachment.

When Starr appeared before the House Judiciary Committee to testify, Dash -- who had largely written the law creating independent counsels -- believed Starr had violated the law. "You have violated your obligations under the independent counsel statute and have unlawfully intruded on the power of impeachment, which the Constitution gives solely to the House," Dash wrote to Starr in resigning.

Not surprisingly, Starr disagreed. But Dash's resignation showed that politics dominated the Starr inquiry.

In our last conversation, Sam told me of his plans to tell Americans that Attorney General John Ashcroft was ignoring the lessons of history in fighting terrorism. He had been working on a book about history of the Fourth Amendment's protections against unreasonable searches and seizures -- a body of law he had studied throughout his professional career.

He said he had just about finished his book when 9/11 occurred. "I was dumbfounded by the way the Bush Administration pushed aside the Constitution to launch their war on terrorism," he said. "These guys didn't need new laws to deal with terrorism. The 9/11 disaster didn't occur because we were without sufficient laws on the books. What we needed before 9/11, and now, is more competent law enforcement," he explained.

Sam - who was as hardnosed and knowledgeable a law enforcement person as could be found -- was deeply concerned that Ashcroft had asked Congress for, and then received, new laws as part of the USA Patriot Act that further narrowed the proscription of the Fourth Amendment. For there was no chance, Sam felt, that the present conservative U.S. Supreme Court would strike down the new law as unconstitutional, despite the fact that it pushed even further than the High Court's present limits.

The Development Of Fourth Amendment Rights

Dash's book, The Intruders: Unreasonable Searches and Seizures from King John to John Ashcroft, offers a compressed history of the 800-year struggle for individual privacy rights that ranges from the Magna Carta to writing of the Fourth Amendment. For this nation, those rights were central to the American Revolution.

The Fourth Amendment declares that people in this country have the right to be secure in their houses, persons, papers and effects from unreasonable searches and seizures. It repeals the English law of "general warrants," which had enabled British soldiers to search and seize from the American colonists -- in their homes, or from their persons -- at whim. Under the Fourth Amendment, warrants must be issued upon probable cause and then only regarding specific places to be searched, and persons or things to be seized.

Dash has written a history, not a treatise. And he has written it for lawyers as well as a general reader. Remarkably, while the Fourth Amendment was adopted in 1791, it did not become an issue before the U.S. Supreme Court for close to one hundred years. Until then, there were simply no federal criminal laws that raised the issue, and the state courts held that the Fourth Amendment did not apply to them. And initially, the U.S. Supreme Court agreed

From the Code of Hammurabi, to the Bible, to pronouncements of Roman emperors, civilized society has long recognized the need for individual privacy free from the prying eyes of government. But effective means of protecting this need has been slow in evolving. Indeed, it was not until 1914 that the U.S. Supreme Court discovered how to give meaning to Fourth Amendment law, when it developed what would become known as the exclusionary rule in the landmark case of Weeks v. United States.

Dash tracks the evolution and development of the exclusionary rule. That rule precluded the use of evidence obtained by unconstitutional means - which, in turn, made it impossible for law enforcement to prosecute cases where officers had failed to comply with the Fourth Amendment's strictures in investigating crimes.

Not unlike Michael Dorf's Constitutional Law Stories, Dash's book presents the human story behind the landmark Fourth Amendment decisions of the High Court. With approval, Dash tells how and why the Warren Court expanded the law to impose the exclusionary rule on state courts as well in Mapp v. Ohio.

Dash's book masterfully digests important history that is essential to understanding a freedom many Americans take for granted. But the true reason underlying Dash's work becomes apparent only in its last two chapters.

There, it takes Dash less than fifty pages to show how we are now rapidly losing rights and liberties it took us some 800 years to acquire.

Dash's Core Concern: The Limiting Of Fourth Amendment Rights

The mince-no-words professor lays out his core concerns in the book's final chapters. "Our popular belief that American constitutional principles of freedom are immutable -- that objective and wise justices consistently declare the law of the land -- is stored myth," Dash explains. "In fact, the meaning of constitutional protections of the people is politically decided from time to time, depending on who is appointed to the Court."

Dash shows that Nixon's and Reagan's appointees to the Supreme Court undertook a sustained attack on the work of the Court under Chief Justice Earl Warren, who "had presided during the 1960s over what has been called the Bill of Rights revolution -- a reaffirmation and strengthening by the Court of the basic constitutional protections of the people, particularly those persons accused in criminal cases."

As Dash explains, the Court under Chief Justices Warren Burger and William Rehnquist have twisted and rendered largely ineffective precedents such as Weeks and Mapp - using, he argues, intellectually dishonesty to do so. Rather than overturn these precedents (which would have produced an uproar), they have enfeebled this landmark Fourth Amendment holding by using a more subtle strategy.

As described by Dash, the strategy is this: The Justices proceed by "(1) inventing a balancing test, (2) limiting the number of challenges to unlawful searches and seizures through the doctrine of 'standing,' and (3) creating a good faith exception." (The "standing" doctrine holds that not all persons, but only a select class, are appropriate to be the plaintiffs suing to enforce a particular constitutional right.)

Dash's Particular Concern: The USA Patriot Act

As disturbing as these decisions were to Dash, he explains them with scholarly honesty. But it was the USA Patriot Act that pushed the envelope over the edge for him. (I know this not because of his book, which throughout retains the even temper of a litigator not wanting to annoy either judge or jury with hyperbole, but because of our conversations.)

Dash writes of the USA Patriot Act, that "the president and his attorney general demanded greater search and seizure powers than a permissive Supreme Court had already given them. Though members of Congress grumbled, they submitted to these demands, desiring to appear as patriotic as the president in the war on terrorism." In conversation, however, Sam was less temperate; he expressed outrage at this foolishness -- at the Congress's removing almost all restrains on law enforcement when investigating "terrorism."

To make his point, while waiting for his book to come off the presses, Sam wrote in a Newsday article, "If, as now seems likely, top White House aides leaked the identity of an American undercover agent, they may have committed an act of domestic terrorism as defined by the dragnet language of the Patriot Act their boss wanted so much to help him catch terrorists." (See my prior column for an explanation of why the leak of agent Valerie Plame's identity was criminal.)

Under the Patriot Act, as Sam said to me with a chuckle, all the FBI has to do is tell a judge that it would "impede their investigation" to give the White House notice, and they could sneak into the Oval Office without warning -- carrying approval from a secret court, granted in secret. "Maybe if the president or his aides were investigated under this law they would understand what they are doing," Sam declared.

But if they, and others, would read Dash's The Intruders: Unreasonable Searches and Seizures from King John to John Ashcroft, I doubt the Bush-Cheney reelection bid would make further extensions of the USA Patriot Act a centerpiece of their campaign. Nor would they boast of their war on terrorism to date.

Sam Dash warns: "Our government leaders -- executive, legislative, and judicial branches -- have made many mistakes in the past when they have lost sight of the sacred American values rooted in the Declaration of Independence and the Constitution. We are at the brink of even graver mistakes and assaults on these values. We dare not turn away from them -- for how naked, weak, and poor we will be without them."

John W. Dean, a FindLaw columnist, is a former counsel to the President.

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