“Outside the Box, but Never Outside of the Constitution”

A Defense of “Ordered Liberty”

Is the Ashcroft Justice Department busily engaged in shredding the Constitution under the cover of September 11?  We are, the President tells us, at war, and in war, we are often told, the first casualty is civil liberties.  Some feared that this was the case when Attorney General John Ashcroft, in July, unveiled his TIPS plan (“Terrorism Information & Prevention System”).  TIPS was designed, as Business Week’s Jane Black explained, to use “your cable guy, meter reader, even your postman to voluntarily [sic] report any and all suspicious information about you to a new, central FBI database”—the better to ferret out future Muhammad Attas.

Enlisting these service personnel was thought to be a way to conduct household searches without obtaining a warrant, thus making what celebrated Boston “civil-liberties lawyer” Harvey Silverglate called “an end run around the Fourth Amendment.”  The horror generated by TIPS was instantaneous and virtually universal, and, within a scant few weeks, the program appeared dead when Congress prohibited any “national snitching programs” (as Slate reporter Dalia Lithwick called them) in the draft of the as-yet-unpassed Homeland Security bill.  The ACLU had been predictably shrill; legislative counsel Rachel King warned that “Law enforcement may end up chasing information based...

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