The Fourth Amendment is one of the most celebrated protections in the American Constitution. It promises that the government will not subject people to unreasonable searches and seizures. Yet for most of modern American history, that promise has been enforced in a surprisingly narrow way: through the exclusionary rule. In broad strokes, when the government violates the Fourth Amendment while gathering evidence, that evidence cannot be used against the person in court.

For decades, this rule did much of the real work. Police officers, FBI agents, and prosecutors learned a simple lesson early in their careers: conduct an unlawful search, and you risk losing the case. Warrants, probable cause, and carefully defined exceptions were not abstract legal doctrines. They were practical constraints.

But that system only works if the government is actually trying to build a case. For most of American history, it was.

Today, in some of the most consequential uses of federal power, it isn’t.

How the Fourth Amendment Is Usually Enforced

The Fourth Amendment itself contains no enforcement mechanism. It states a legal principle, not a penalty. The exclusionary rule was created by courts to fill that gap: the government should not be permitted to benefit from violating the Constitution.

Alongside exclusion, civil lawsuits were meant to provide a backstop. But those remedies have always been weak. Even when plaintiffs succeed, damages are paid by taxpayers, not by the officers who violated the law. Over time, the Supreme Court has further limited accountability—most notably by narrowing claims under Bivens v. Six Unknown Named Agents and expanding qualified immunity.

In practice, exclusion became the Fourth Amendment’s teeth. If evidence mattered, legality mattered.

That Was Never the Founders’ Only Concern

This modern, criminal-procedure framing misses what originally terrified the Founders.

The Fourth Amendment was a direct response to the British Crown’s use of general warrants and writs of assistance—open-ended search authorities that allowed officials to search anyone, anywhere, without individualized suspicion. These searches were not always about prosecuting crimes. They were about asserting dominance and keeping the population compliant. The King used these writs not to “take care that the law” be enforced, but to preserve and protect his throne.

No one articulated this danger more vividly than James Otis, whose 1761 essay Against Writs of Assistance warned:

Every one with this writ may be a tyrant; if this commission be legal, a tyrant in a legal manner also may control, imprison, or murder any one within the realm. In the next place, it is perpetual; there is no return. A man is accountable to no person for his doings. Every man may reign secure in his petty tyranny, and spread terror and desolation around him. In the third place, a person with this writ, in the daytime, may enter all houses, shops, &c. at will, and command all to assist him. Fourthly, by this writ not only deputies, &c., but even their menial servants, are allowed to lord it over us. Now one of the most essential branches of [our] liberty is the freedom of one’s house. A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. …

Otis was not worried about “tainted” evidence. He was worried about fear—about a government that could intrude at will, without explanation and without consequence, into a person’s home, papers, and private life.

That concern runs throughout the Federalist Papers. The authors repeatedly emphasized that liberty depends on constraining discretionary power before it is abused, not merely punishing it afterward. The Fourth Amendment was meant to prevent the government from roaming through the population untethered from specific suspicion and judicial oversight.

In short, the Amendment was designed to prevent intimidation, not just bad prosecutions.

For much of American history, federal law enforcement operated within a criminal framework. Searches and arrests were typically tied to investigations that might end up in court. Under those conditions, the exclusionary rule worked. An unlawful search could sink a case, embarrass a prosecutor, and derail a career.

That incentive structure shaped behavior—but it depended on one crucial assumption: that the government cared whether evidence would later be admissible.

Current Immigration Enforcement Breaks the Model

Immigration and Customs Enforcement often operates outside that assumption.

ICE agents, acting more as paramilitaries than police, are not seeking evidence to present to a jury—or even to a court. Removal proceedings are administrative, with weaker procedural protections and limited suppression remedies. Many enforcement actions never meaningfully reach any adjudicative forum at all. In numerous cases, the search and detention appear to be the end goal—instilling fear and uncertainty rather than building a legal case.

In this environment, the exclusionary rule has little deterrent effect. An unlawful stop, search, or arrest does not “lose the case” because there is no case to lose. The immediate objectives—detention, disruption, signaling, fear—are achieved regardless of legality. In criminal cases, evidence derived from an unlawful arrest is excluded. But when evidence is not the objective, exclusion is irrelevant. Nor do civil lawsuits meaningfully constrain conduct. Agents face minimal personal risk, and any damages are borne by the public. This protection is enhanced by the use of military, instead of police, tactics – masked paramilitaries, wearing tactical gear, and operating in large military formations.

The result is a profound asymmetry: the Fourth Amendment still exists on paper, but its enforcement mechanism is disconnected from how power is actually exercised.

When Fear Replaces Evidence

This is not simply a story about immigration policy or rogue officers. It is a story about a government stepping outside constitutional norms—into a world where fear, not evidence, is the instrument of power. The Fourth Amendment was designed to prevent exactly this scenario. General warrants were dangerous not because they produced unreliable evidence, but because they placed the population under constant threat of arbitrary intrusion.

When government agents are engaged not in law enforcement but in intimidation and control, the traditional tools of Fourth Amendment enforcement are blunted. The Constitutional language is there, but ignored, and, from the perspective of this Administration and its paramilitary arm, irrelevant.

Unless courts or Congress develop ways to impose real consequences for unconstitutional searches and seizures outside the criminal-trial context, the Fourth Amendment risks becoming what James Otis feared in another form: a right proclaimed, but not protected.

The Administration often justifies aggressive, extra-constitutional actions by ICE and other elements of the expanding “security services” as reflecting the “will of the voters.” There is at least some truth to that claim. And the will of the voters still matters, and there will be a chance for that will to be expressed in the coming mid-term elections.

A promise honored in theory—and hollow in practice.

Steven A. Cash served as a prosecutor in the Manhattan District Attorney’s office before joining the CIA in 1994 as Assistant General counsel and subsequently serving as an intelligence officer in the Directorate of Operations. In 2001 he joined the Senate Select committee on Intelligence as Counsel and designee-staffer to Senator Diane Feinstein). He later served as a senior staffer in the House Select Committee on Homeland Security, the Department of Energy, the Senate Judiciary Subcommittee on Terrorism, Technology and Homeland Security and the Department of Energy. In the private sector he has advised on national security, counterintelligence, and technology policy and served on the Biological Sciences Experts Group under the Director of National Intelligence. Mr. Cash is currently the Executive Director of The Steady State.

Founded in 2016, The Steady State is a nonprofit 501(c)(4) organization of more than 360 former senior national security professionals. Our membership includes former officials from the CIA, FBI, Department of State, Department of Defense, and Department of Homeland Security. Drawing on deep expertise across national security disciplines, including intelligence, diplomacy, military affairs, and law, we advocate for constitutional democracy, the rule of law, and the preservation of America’s national security institutions.

Over the past several months, we have heard from many people who want to be involved in The Steady State’s work — to advocate, educate, and sound the alarm about the existential threat facing American democracy: the rise of authoritarianism led by Donald Trump, his associates, and his family. The Steady State’s core membership is, by design, limited to former senior national security, intelligence, diplomatic, military, and law-enforcement officials. That restriction reflects who we are and the professional experience we bring to this moment.

But we have heard the request — clearly and repeatedly — from people who share our values, support our mission, and want to engage more directly with our work.

Today, we launch The Steady State Auxiliary.

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• We will host periodic events specifically for Auxiliary members, designed to deepen engagement with our analysis, our members, and our work. The first of these will take place in mid- to- late January, when we host an online “Ask Me Anything” session with Steady State members.

• Some people have asked whether Auxiliary membership includes a Secret Decoder Ring. That remains a secret.

Founded in 2016, The Steady State is a nonprofit 501(c)(4) organization of more than 360 former senior national security professionals. Our membership includes former officials from the CIA, FBI, Department of State, Department of Defense and Department of Homeland Security. Drawing on deep expertise across national security disciplines including intelligence, diplomacy, military affairs and law, we advocate for constitutional democracy, the rule of law and the preservation of America’s national security institutions.

As the fourth anniversary of Russian President Vladimir Putin’s unprovoked February 2022 full-scale invasion of Ukraine approaches, the Russian strongman has been suffering the consequences of his classic intelligence failure. Instead of his anticipated cakewalk, Putin has been bogged down in a bloody war of attrition — an estimated 1.1 million Russian casualties, plus another 400,000-some Ukrainian wounded or killed. Putin had aimed to weaken NATO, not strengthen the Western military alliance that has stood against Russian aggression since1949. NATO has even added two new determined neighboring countries, Sweden and Finland, which have been busy strengthening defenses in northern sea lanes.

Now, Putin must be delighted that America’s president, Donald Trump who, having publicly welcomed Putin’s covert measures on his behalf during his 2016 presidential campaign, is again proving useful. The American president has embarked upon a course of action that seriously threatens NATO’s survival, leaving the Russian Army free to continue to grind Ukraine down, and looking ahead to future military adventures in, say, Baltic countries and Scandinavian waters that Peter the Great once enjoyed.

As numerous unnerving headlines have been screaming, Trump threatens to wrest control of the strategically important island of Greenland, positioned between the Arctic and Atlantic Oceans, from our NATO ally, Denmark. If the Danes won’t sell their semi-autonomous territory, whose 56,000 residents are European Union citizens, Trump vows to seize it. (Never mind the absurdity: America has enjoyed free rein in Greenland’s defense throughout our lifetimes.)

Why? Imagine the American map in the president’s eye: “Greenland” morphs into “Trumpland” — a historic triumph trumping (pardon me!) Thomas Jefferson’s Louisiana Purchase. Not to mention the potential lucrative commercial opportunities: The business pages have speculated on the usual familiar MAGA names, including Donald Trump, Jr., Devin Nunes, Peter Thiel, Elon Musk.

Outraged, the Danes and Greenlanders have poured into the streets, saying they cannot believe an American president would even think such things. Denmark has been supported by fellow NATO allies, including Norway, Sweden, France, and Germany, in subtle-but-significant moves to beef up their military presence on Greenland to defend it from America!!

Unimpressed, Trump has said America’s European allies are playing a “very dangerous game,” threatening to punish them with crippling tariffs. Infuriated, NATO allies are talking about 1930’s-style trade retaliations involving $100-plus billion in punitive tariffs on American exports. This time, they vow, they will not bow to American bullying. Once again, the dictator in the Kremlin has to be smiling, especially at the prospect of Trump walking out of Nato and abandoning Ukraine.

The world will find out more this Wednesday, when Trump will address the World Economic Forum’s annual meetings of the world’s great-and-good in Davos, Switzerland. NATO’s Secretary General, top European political and economic leaders, and Ukrainian President Volodymyr Zelensky will be in the Swiss resort this week.

This week in Davos looks to be a historical moment, playing out in real time. Possibly this time the Europeans will (finally) stand up to American bullying. But if they do, that would quite likely play into Putin’s hands —the threat that is always lurking with Trump, his Vice President, J.D. Vance, and White House deputy chief of staff Stephen Miller, to walk away from NATO.

A good guess is that the Europeans will try to find a way to advance the Trump crowd’s fortunes, not just involving Greenland but in future reconstruction contracts in Ukraine, should a peace deal actually emerge.

But this guesstimate is very tricky business.

On one hand, Trump has repeatedly shown he doesn’t care about Ukraine, in the Western moral tradition of resisting aggression from Moscow. Remember Trump’s 28-point “peace” plan for Ukraine, on Moscow’s terms, aimed at Kyiv’s capitulation? And in recent days, Trump has again blamed Zelensky for being the obstacle to a lasting peace deal.

But on the other hand, Trump also appears very much invested in his self-image of being a peacemaker, and throwing Ukraine to The Bear would mark Trump as a loser. So, the Europeans who will be looking to manipulate Trump in Davos this week might have some diplomatic and psychological leverage.

There’s a final observation to be made concerning the prospect of American bullying of Denmark and Greenland, which have long histories of helping Western democracies. It was weather stations on Greenland, controlled by Allied intelligence during World War II, that provided the clear-weather window that Dwight Eisenhower used to launch the successful invasion across the English Channel on D-Day, 1944. And throughout the Cold War, Danish intelligence, along with the Brits and other NATO allies, were there to help protect Central Europe, and America, in too many historical episodes to mention in this space.

Now, America’s friends deserve better.

Greg Rushford ran congressional investigations involving Soviet aggression in the 1970s as a staff member of the House Appropriations and Intelligence committees and is a former Washington journalist. He is a member of The Steady State.

Founded in 2016, The Steady State is a nonprofit 501(c)(4) organization of more than 360 former senior national security professionals. Our membership includes former officials from the CIA, FBI, Department of State, Department of Defense, and Department of Homeland Security. Drawing on deep expertise across national security disciplines, including intelligence, diplomacy, military affairs, and law, we advocate for constitutional democracy, the rule of law, and the preservation of America’s national security institutions.

The latest National Security Strategy (NSS) highlighted the direct threat the Trump administration poses to Europe. This threat extends beyond seizing Greenland and affects a broader array of issues and groups, including various non-government organizations. As a driving policy goal, the administration seeks to internationalize its authoritarian MAGA vision to undermine democracy, rule of law, and civil/human rights in Europe, which will also weaken allies of those in the US who oppose authoritarianism domestically.

Internationalizing the MAGA Agenda

The NSS undertakes unprecedented criticism of European governance, society, and culture, reversing over 80 years of US policy. It reflects the administration’s domestic ideology and seeks to transform European societies along similar lines—ideological imperialism designed around a far-right, traditionalist concept of white, Christian, European civilization. The NSS denounces mass migration (people from non-white, Christian societies) and criticizes efforts to combat hate speech and disinformation as attacks on free speech. It also disparaged global organizations, norms, and rules guiding the European and international order since WWII.

These goals reflect an ideological stream that has secured strong positions in the administration. At the Munich Security Conference last February, Vice President Vance attacked Europe, stating his greatest fear was “the threat within.” He supported Germany’s Alliance for Democracy, which the German state considers an extremist group. Last May, the State Department issued “The Need for Civilizational Allies,” laying out similar concepts. In Fall 2025, the State Department sent talking points to US Embassies advocating harsh immigration crackdowns. In December 2025, the US revoked travel visas of five Europeans involved in restricting disinformation and hate speech.

Broad Role for Far Right Non-government Organizations

These official actions draw roots from the wider non-governmental far-right community. In June 2025, the Heritage Foundation (authors of Project 2025) produced “Toward a Nationalist Internationalism: The Case for Building a National Conservative Alliance.” This presaged elements of the NSS and indicates the administration’s ambitions to change European governments by supporting parties and movements in order to impose far-right policies on immigration, religion, culture, gender/sexuality, and traditional families—essentially taking Project 2025 on a European tour. Their goals parallel domestic policies and reflect the objective of establishing a far-right “Internationale” vaguely similar to the Soviet-led COMINTERN of the pre-WWII era.

The administration builds upon an expanding network of like-minded parties. All European countries have far-right parties with similar ideologies. Hungary, under Prime Minister Orban and FIDESZ, has emerged as the dominant element and poster-child for what the far right seeks to achieve. Since Orban returned to power in 2010, Hungary has seen significant decline in rule of law, adherence to democratic principles and policies, protection of minority rights, and free speech as measured by multiple rating groups, while corruption has steadily increased. Consequently, the EU placed sanctions on Budapest, and in early January 2025 the US sanctioned its intelligence minister for corruption.

Beyond political parties, there’s a growing web of advocacy groups and think tanks in Europe with ties to US counterparts that the administration leverages. Perhaps the two most prominent in Europe are Hungary’s Mathais Corvin Collegium (MCC) and Poland’s Ordi Luris Institute. In the US, the Conservative Political Action Committee (CPAC), for example, holds conferences in Europe, Hungary in 2022 and Poland in 2025 and regularly invites European far-right groups to US conferences. All focus on building a stronger international network for mutual support to advance their shared ideological agendas.

The growing ties among these non-governmental groups may be the greatest threat to Europe because of the administration’s embrace of changing non-far-right governments and pressuring European states to adopt authoritarian MAGA policies. From Vance’s February 2025 statement through the November NSS, the administration has a vision for Europe—parallel “Make (country) Great Again” movements running the governments.

America First Leadership Needs a Far-Right Europe to Follow It

The administration’s policy towards Europe will be shaped by trade, commercial, and traditional national security concerns, and consequently, it may turn to non-governmental allies to push its ideological agenda—not unlike the Soviet Union’s use of Communist parties in the 20^th century. While the State Department embraces this far-right agenda, the administration has not yet harnessed the US military or intelligence community to pursue authoritarian policies in Europe. Such action could undermine NATO and essential intelligence relationships, especially if seeking to actively subvert democratic governance. While once unimaginable, given actions against Venezuela and threats to Greenland and Canada, this may be on the policy menu.

Despite its advocacy of national sovereignty, the administration and wider far-right movement ironically see international ties as essential and view strong, far-right, non-government organizations operating in multinational networks as vital to their ideological success. In a further irony, despite disparaging views of Europe, they view Europe as essential to building a white, Christian, far-right society in the US. European heritage is central to their worldview. The movement recognizes that achieving domestic goals requires parallel success in Europe, both to legitimize itself and weaken allies of its opponents inside the US.

Some have interpreted the NSS as dividing the world into spheres of influence—the US gets the Americas, China gets East Asia, and Russia gets Europe. The NSS and administration appear to disagree; they want Europe in their sphere, but it must be a MAGA-like Europe. As the Heritage paper states, America First may become America Alone. Even as the administration downplays traditional relationships with Europe, especially the EU, it clearly has a high-priority agenda to undermine European governments that don’t adhere to its authoritarian ideology via official actions and a non-government network.

Harry Hannah retired after four decades of experience in the Intelligence Community. He retired from the CIA in 2018. About half that time was focused on analyzing the capability of multiple foreign militaries in direct support of US military planning and operations and national level decision making. He is a member of The Steady State.

Founded in 2016, The Steady State is a nonprofit 501(c)(4) organization of more than 360 former senior national security professionals. Our membership includes former officials from the CIA, FBI, Department of State, Department of Defense, and Department of Homeland Security. Drawing on deep expertise across national security disciplines, including intelligence, diplomacy, military affairs, and law, we advocate for constitutional democracy, the rule of law, and the preservation of America’s national security institutions.

All statements of fact, opinion, or analysis expressed are those of the author and do not reflect the official positions or views of the US Government. Nothing in the contents should be construed as asserting or implying US Government authentication of information or endorsement of the author’s views.

What happens when the rules stop protecting those who follow them? In the latest episode of The Steady State Sentinel podcast, Immigration attorney Amy Peck and former FBI executive Lauren Anderson examine how unpredictable enforcement erodes trust, legitimacy, and the rule of law—and why the consequences extend far beyond immigration.

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