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Why Isn't The Fourth Amendment Classified As Top Secret?

Publication Date: 
March 18, 2014
The Atlantic
Conor Friedersdorf

Constitutional Law Center fellow Jonathan Abel is cited in by The Atlantic's Conor Friedersdorf for his work on retroactive classification; a little-known provision of national security law.  

Notice how much the Fourth Amendment tells our enemies. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated," it states, "and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The Framers are usually considered patriots. Yet they gave traitors and criminals in their midst such powerful knowledge about concealing evidence of skullduggery! Today every terrorist with access to a pocket Constitution is privy to the same text. And thanks to the Supreme Court's practice of publishing its opinions, al-Qaeda need only have an Internet connection to gain a very nuanced, specific understanding of how the Fourth Amendment is applied in individual cases, how it constrains law enforcement, and how to exploit those limits.


Jonathan Abel has written about retroactive classification, "a little-known provision of national security law that allows the government to declassify a document, release it to the public, and declare it classified later on." The government could "hand you a document today and prosecute you tomorrow for not giving it back," he explains. "Retroactive classification can even reach documents that are available in public libraries, on the Internet, or elsewhere in the public domain."