When Is Consent Not Consent?
An email conversation about the news of the day.
June 19 2002 6:26 PM

VIEW ALL ENTRIES

Dear Dahlia,

Advertisement

Before I had time to finish my note back to you, I had to rush to the airport barely in time to catch a flight ("Hold the door! Hold the door!") to Pittsburgh, from whence I am heading on to some place called Nemacolin Woodlands to speak at a meeting of the 50 state attorneys general.

So, I apologize for being tardy in responding. But I found your question about my reaction to Monday's decision in the Drayton case pretty difficult. The opinion—upholding the search of a bus passenger based on his "consent" when he wasn't told he had a right not to consent by the three armed officers who took over bus—bothers me in a couple of ways and doesn't bother me in another way.

I am not troubled by the search itself. If the government believes that every air, rail, boat, and bus passenger has to be searched, whether they like it or not, that's a price we have to pay in an age of weapons of mass destruction.

I am troubled, however, by the absence of judicial candor in these search cases in which people in intimidating circumstances are judicially assumed to have consented voluntarily when they are not told they have a right not to consent. The obvious reason this simple information isn't conveyed is because people who are told they have a right not to consent are less likely to consent—at least when they have something to hide. The judicial conceit of "voluntary consent" is a winking fiction that undercuts the integrity of the law. And that troubles me. Better to say the police can just do it, with or without consent.

It also bothers me that selective searches, where "consent" is dubiously obtained, may go hand in hand with unjustified selective racial profiling. I am generally more open to innovative post-9/11 security methods that affect all of us than I am to those that impose a selective burden on some of us, unfairly chosen.

I guess I'm not much of a privacy zealot. In the America of the future, perhaps we can compensate for the inevitable decline in privacy by striving to become more tolerant of one another's foibles.

About Moussaoui. Maybe this case does show that the normal criminal justice system is not the right answer. About the detainees generally, I am truly perplexed about the right answers. We have one system of rules about war and foreign combatants and a very different set of rules about domestic law enforcement and criminal justice, and we never before really confronted a circumstance in which these two paradigms became intertwined. Whatever we do, there ought to be judicial review—directly in the U.S. Supreme Court if Congress doesn't trust the lower courts and chooses to lodge all review there—of all these extraordinary detentions. We ought not allow unilateral executive determinations. And surely, Congress and the president can trust the Rehnquist court not to go crazy.

We ought to talk about the decision overturning the "mauling dog" conviction out in California. But Thursday's bunch of Supreme Court decisions may crowd it out of our e-mails.

Regards,
Walter

Walter Dellinger is a professor of law (on leave) at Duke University and a partner in the appellate practice at O’Melveny & Myers in Washington, D.C.

TODAY IN SLATE

Politics

Smash and Grab

Will competitive Senate contests in Kansas and South Dakota lead to more late-breaking races in future elections?

Stop Panicking. America Is Now in Very Good Shape to Respond to the Ebola Crisis.

The 2014 Kansas City Royals Show the Value of Building a Mediocre Baseball Team

The GOP Won’t Win Any Black Votes With Its New “Willie Horton” Ad

Sleater-Kinney Was Once America’s Best Rock Band

Can it be again?

Technocracy

Forget Oculus Rift

This $25 cardboard box turns your phone into an incredibly fun virtual reality experience.

One of Putin’s Favorite Oligarchs Wants to Start an Orthodox Christian Fox News

These Companies in Japan Are More Than 1,000 Years Old

Trending News Channel
Oct. 20 2014 6:17 PM Watch Flashes of Lightning Created in a Lab  
  News & Politics
Politics
Oct. 20 2014 8:14 PM You Should Be Optimistic About Ebola Don’t panic. Here are all the signs that the U.S. is containing the disease.
  Business
Moneybox
Oct. 20 2014 7:23 PM Chipotle’s Magical Burrito Empire Keeps Growing, Might Be Slowing
  Life
Outward
Oct. 20 2014 3:16 PM The Catholic Church Is Changing, and Celibate Gays Are Leading the Way
  Double X
The XX Factor
Oct. 20 2014 6:17 PM I Am 25. I Don't Work at Facebook. My Doctors Want Me to Freeze My Eggs.
  Slate Plus
Tv Club
Oct. 20 2014 7:15 AM The Slate Doctor Who Podcast: Episode 9 A spoiler-filled discussion of "Flatline."
  Arts
Brow Beat
Oct. 20 2014 9:13 PM The Smart, Talented, and Utterly Hilarious Leslie Jones Is SNL’s Newest Cast Member
  Technology
Technology
Oct. 21 2014 8:38 AM An Implanted Wearable Gadget Isn’t as Crazy as You’d Think Products like New Deal Design’s UnderSkin may be the future.
  Health & Science
Bad Astronomy
Oct. 21 2014 7:00 AM Watch the Moon Eat the Sun: The Partial Solar Eclipse on Thursday, Oct. 23
  Sports
Sports Nut
Oct. 20 2014 5:09 PM Keepaway, on Three. Ready—Break! On his record-breaking touchdown pass, Peyton Manning couldn’t even leave the celebration to chance.