The Death of the 4th Amendment

The worst outcome of the tragedy of September 11th has come to fruition.

When the planes hit, I was a student at the University of Alaska Anchorage. I woke up, glanced at the TV and saw the towers on fire. Still half asleep and not entirely coherent, I thought that maybe a plane had crashed into a control tower. I thought to myself “Wow, that’s pretty awful”, and fell back asleep before I had to be up for class a couple hours later.

Walking to the bus stop, still without the knowledge of what had happened, I hadn’t yet put my headphones in and the first thing I noticed as I walked down the empty street was how quiet it was. Living about as close to Elmendorf as you could without enlisting, the sounds of jets were constant – but not on that day.

Shrugging off those sounds of silence as an anomaly, I got onto the bus, blasted some heavy metal into my ear canals and headed off to UAA.

Walking into the student center at UAA I knew something was wrong. The hallways were empty and the few faces I saw were pale and expressionless. I noticed a crowd near the TV at the other end of the building and asked what had happened.

In that moment the world was changed forever.

What happened next, however, was far more devastating to America than any amount of planes crashing into buildings – we embraced fear.

While he was criticized for it, President George W. Bush’s initial reaction was perfect – reading a story to children, he heard the news, did not flinch and continued on, careful not to startle anyone in the room.

He followed with that measured response in his address to the nation on the day of the attacks. He said, “Terrorist attacks can shake the foundations of our biggest buildings, but they cannot touch the foundation of America. These acts shattered steel, but they cannot dent the steel of American resolve.”

He continued, “Today our Nation saw evil, the very worst of human nature. And we responded with the best of America, with the daring of our rescue workers, with the caring for strangers and neighbors who came to give blood and help in any way they could.”

However, while the country initially did respond in this manner, eventually fear won. Racism against Muslim-Americans rose to an all-time high and according to the FBI hate crimes against Muslims are still approximately five times higher than they were prior to 9/11.

According to the Washington Post, “Prior to the 9/11 attacks, the program typically recorded between 20 and 30 anti-Muslim hate crimes per year. But in 2001 that number rose more than tenfold to nearly 500. In the years since, annual hate crimes against Muslims have consistently hovered in the 100-150 range, roughly five times higher than the pre-9/11 rate.”

In January 2002, The United States opened the Guantanamo Bay Detention Camp and incarcerated men captured in the theater of war without trial or formal charges. The argument “If you have nothing to hide”, in reference to privacy protections also made a huge resurgence during this time. This willingness to surrender rights protected in the Constitution made it easy to pass the most unconstitutional piece of legislation to cross the President’s desk in my lifetime.

The Patriot Act was passed and signed by President Bush 45 days after the 9/11 attacks – rushed through with very little debate and not nearly enough discussion about the potential impacts and constitutional problems with the act. At the same time, as part of the Aviation and Transportation Security Act, the Transportation Security Administration was created.

The TSA replaced the private security that had been provided by the airlines for years. Along with it now being a federal agency providing pre-flight screening, the screening became much more invasive. The TSA now employs full-body scanners, bag searches, pat searches and requires you to remove your shoes, all but one layer of clothing as well as searching carry on bags on a regular basis. They claim no 4th Amendment violations based on a 1973 court case – US v. Davis. In US v. Davis the Court ruled that because the searches are of a “non-criminal” nature, that they fall outside of the realm of the 4th Amendment.

The TSA, however, is far more aggressive than the private security that preceded them. Nick George was detained, handcuffed and questioned in 2009 when he was flying to return to his senior year of college. The American Civil Liberties Union, who stepped in to help Mr. George, recounts his story on their website.

During his airport security screening, Transportation Security Authority agents asked Mr. George to empty his pockets. He complied, producing a set of English-Arabic language flashcards, each of which had an English word on one side and the corresponding Arabic word on the other. Mr. George, a Middle Eastern Studies major who had recently completed a study abroad program in Jordan, was using the cards to aid his Arabic language studies. In his carry-on luggage, which was also searched, he had a book critical of U.S. foreign policy that was written by a Reagan administration official. In reaction to Mr. George’s flashcards and book—materials protected under the First Amendment—TSA, FBI, and Philadelphia police officials detained, handcuffed, interrogated, and jailed Mr. George. He was finally released without charge after several hours, by which time he had long missed his flight.

It would be hard for any reasonable person to argue that Mr. George was searched and detained for “non-criminal” purposes and that his detention based on flash cards and a book was justified under the Fourth Amendment. However, the Court punted on the case, sending it back down to the lower court, instructing that it be dismissed.

The loss of life on 9/11 was tragic and horrific and can never be discounted. However, the more egregious acts were those carried out by Americans and the United States government afterwards. The Constitution is the bedrock on which our society is based – to let it be violated does far more lasting damage to our society. Benjamin Franklin famously said “Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.” Those words could not ring more true today.


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