Government thinks it doesn't need a judge to get a warrant

  • 20 February 2015
  • NormanL
Government doesn't need a warrant

Requiring government officials to obtain a court-approved warrant before conducting a search is a pillar of our constitutional legal protections.  But as government has grown in size and power, that basic right -- guaranteed in the Fourth Amendment -- has been dangerously compromised by the rise of "administrative subpeonas":

These are warrants, not signed by a judge, by which government obtains records and other evidence.

More and more Americans have come to understand that these administrative subpoenas violate the Fourth Amendment’s processes needed to guard against unreasonable searches and seizures of our persons, houses, papers and effects. Judge-less subpoenas are now especially prevalent in targeting telephone and computer records, but they have been used in many ways that transgress the law.

The problem was adequately summed up in the title of a 2012 article at, “We Don’t Need No Stinking Warrant: The Disturbing, Unchecked Rise of the Administrative Subpoena.” The article noted that “roughly 335 federal statutes on the books” authorize these judge-less warrants.

Fourth Amendment processes require that someone present facts under oath and affirmation to a neutral judicial officer, who may then issue a warrant after concluding there is probable cause that some law has been violated. The requirement of a neutral judge is designed to ensure reasonable objectivity to preserve the rights of the innocent.

Administrative subpoenas skip this process. Government agencies issue such subpoenas unilaterally, meaning without the objectivity of a neutral judge. In doing so, they are able to fudge or evade the requirement of probable cause. This is a major problem at both the federal and state levels, and government officials have displayed an amazing level of ignorance and disregard of the safeguards protecting rights to security in private property.

Utah's attorney general has announced that his office will no longer use administrative subpeonas, stating that:

"The wholesale writing yourself a note to go after that stuff without any check is too dangerous and the potential for abuse becomes too dangerous."

Imagine that: an attorney general who has respect for the nation's highest law.

The problem is that Utah is almost alone in this action. In other states, and with other attorneys general, judgeless warrants continue to be issued without much consideration at the danger they pose to liberty, let alone the rule of law.

This cannot be allowed to continue.