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

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Dear Dahlia,

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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.