A Bit On The NSA Wiretapping Program

Its all Attorney General news today so I thought I would highlight something different with this excellent article written by Phillip Bobbitt, Columbia Law School professor and a former member of the Clinton Administration from 98-99, on the NSA Wiretapping hoopla: (h/t Patterico Pontifications)

“Warrants, which originate in the criminal justice paradigm, provide a useful standard for surveillance designed to prove guilt, not to learn the identity of people who may be planning atrocities.

A statutory fix that simply waived the warrant requirement when both parties to a conversation were foreign would scarcely address this problem.Technology is changing the nature of the threat, not merely the mechanics of collection. The statutory change is unnecessary, I suppose, if you believe that there is in fact no real threat, that it’s all hype by the White House to expand its powers — presumably to some other end — and that all we have to fear is fear itself. Doubtless, some people do believe this. If the editorialists and columnists in the news media make this assumption, they should frankly say so (and hold their breath until the next attack).”

Phillip then details a few examples where warrantless searches and surveillance is not only warranted by entirely legal:

“Furthermore, there is an unstated assumption that warrantless surveillance is lawless surveillance. There is, however, judicial precedent for warrantless searches, even if you can’t tell this from the public debate. The president of the American Bar Association objected to the new statute by sarcastically observing, “The last time I checked, the Fourth Amendment is still in the Bill of Rights,” which he doubtless believed to be a withering salvo.

In fact, there are many instances in which warrantless surveillance has been held to be permissible under the Fourth Amendment. Searches in public schools require neither warrants nor a showing of probable cause. Government offices can be searched for evidence of work-related misconduct without warrants. So can searches conducted at the border, or searches undertaken as a condition of parole. Searches have been upheld in the absence of a warrant where there is no legitimate expectation of privacy. The Clinton administration conducted a warrantless search — lawfully — when it was trying to determine what the spy Aldrich Ames was up to. The day after Pearl Harbor, President Roosevelt authorized the interception of all communications traffic into and out of the United States.”

You can add searches (or interceptions) of foreign communications into this country.  John at Powerline wrote a great post sometime back on much of what Phillip covers.  He started out by detailing the inherent powers of the President under Article II of the Constitution which makes him Commander in Chief as such he is preeminent in foreign policy and military affairs.  He then moves on to the subject of Phillips paper.  The Fourth Amendment:

There is one relevant constitutional provision that acts as a restraint on the President’s inherent power as Commander in Chief. That is the Fourth Amendment, which states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, 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.

So all searches and seizures of Americans or their property (including, as the courts have appropriately ruled, interceptions of telephonic and electronic communications) must be reasonable. Note, however, that this requirement does not apply to terrorists overseas. A Special Forces soldier can pick a cave arbitrarily and search it. He isn’t trying to prosecute terrorists, he is trying to kill them. He doesn’t need probable cause.

The Fourth Amendment includes requirements for the issuance of search warrants, and many critics of the NSA program seem to assume that this means that all searches must be executed pursuant to a warrant. This assumption is wrong. There are dozens of situations where warrantless searches have been approved by the courts. The overriding principle is that searches of Americans (defined to include resident aliens) must be reasonable.

One of the many situations where warrantless searches have been approved is when the government is seeking foreign intelligence information, such as information relating to potential terrorist threats. Next to the Constitution itself, of course, the highest authority is the United States Supreme Court. At least three Supreme Court cases have discussed this subject.

[…]In 1980, the Fourth Circuit decided United States v. Truong, another criminal prosecution that arose out of the defendant?s spying on behalf of the Socialist Republic of Vietnam. The case squarely presented the issue of the executive branch?s inherent power to conduct warrantless surveillance for national security purposes:

The defendants raise a substantial challenge to their convictions by arguing that the surveillance conducted by the FBI violated the Fourth Amendment and that all the evidence uncovered through that surveillance must consequently be suppressed. As has been stated, the government did not seek a warrant for the eavesdropping on Truong?s phone conversations or the bugging of his apartment. Instead, it relied upon a ?foreign intelligence? exception to the Fourth Amendment?s warrant requirement. In the area of foreign intelligence, the government contends, the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs.

The court agreed with the government?s position:

For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United States District Court, 407 U.S. 297 (1972)], ?unduly frustrate? the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence activities, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations.

[…]That is the current state of the law. The federal appellate courts have unanimously held that the President has the inherent constitutional authority to order warrantless searches for purposes of gathering foreign intelligence information, which includes information about terrorist threats. Furthermore, since this power is derived from Article II of the Constitution, the FISA Review Court has specifically recognized that it cannot be taken away or limited by Congressional action.

That being the case, the NSA intercept program, which consists of warrantless electronic intercepts for purposes of foreign intelligence gathering, is legal.

It still amazes me that people who witnesses 9/11, who were aghast at the intelligence mistakes that lead up to 9/11, and who were calling for more and better intelligence years ago are now the very same people who vilify the NSA Wiretapping Program.  Who want so many checks in the system that by the time the call into this country is done the intelligence folks would still be writing a warrant to get signed to listen to a call that is already over.

Just amazing.

And when we get hit again they will blame it all on the intelligence agencies once more asking why in the hell they didn’t know beforehand.

Curt

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