Warrantless Searches Revisited

Carl at No Oil for Pacifists has been blogging on the NSA surveillance program and whether or not Bush has legal authority to do what he is doing. There are a lot of court cases that are flying around and being quoted and I just wanted to slow things down a bit and look at what these mean in context.

To begin with, I would like to point out something about court opinions that most people don't know/understand. In the opinion, the court will restate the issue at hand. This is the issue that the court was called upon to decide. Examples of this is "was the person negligent," "did the person commit arson," etc. In the opinion, the court will state its holding (decision). This is legal authority. This means that other attorneys and judges can rely on this. Also, in an opinion, a judge may enter into opining and offering opinion not directly related to the issue at hand. This is called dicta. While dicta is in the opinion, it is not legal authority. That means, other attorneys and judges can use this in subsequent cases as a persuasive argument, or completely ignore it. Dicta carries absolutely no legal weight. It is just opinion. When reading court cases, you must know the difference between the two. Otherwise, what you think is law might not be anything at all.

Now, back to the issue at hand. In 1972, the Supreme Court ruled on a case that has been called Keith (
UNITED STATES v. UNITED STATES DISTRICT COURT, 407 U.S. 297 (1972) .
In Keith, the court held that the president did not have the authority to conduct domestic warrantless wiretaps and flatly rejected the assertion that national security somehow trumped the 4th amendment. The court held that the president has no inherent constitutional authority to collect national security intelligence information domestically.

These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive [407 U.S. 297, 317] Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. Katz v. United States, supra, at 359-360 (DOUGLAS, J., concurring). But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech.

We cannot accept the Government's argument that internal security matters are too subtle and complex for judicial evaluation. Courts regularly deal with the most difficult issues of our society. There is no reason to believe that federal judges will be insensitive to or uncomprehending of the issues involved in domestic security cases. Certainly courts can recognize that domestic security surveillance involves different considerations from the surveillance of "ordinary crime." If the threat is too subtle or complex for our senior law enforcement officers to convey its significance to a court, one may question whether there is probable cause for surveillance.
Nor do we believe prior judicial approval will fracture the secrecy essential to official intelligence gathering. The investigation of criminal activity has long [407 U.S. 297, 321] involved imparting sensitive information to judicial officers who have respected the confidentialities involved.

It is noteworthy that the court rejected to decide what powers the president had to collect national security information internationally.

We emphasize, before concluding this opinion, the scope of our decision. As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed, and express no opinion [407 U.S. 297, 322] as to, the issues which may be involved with respect to activities of foreign powers or their agents. 20

Further, the court opined (not legal holding) that congress can legislate on issues of domestic intelligence gathering.

It may be that Congress, for example, would judge that the application and affidavit showing probable cause need not follow the exact requirements of 2518 but should allege other circumstances more appropriate to domestic security cases; that the request for prior court authorization could, in sensitive cases, be made to any member of a specially designated court (e. g., the District Court for the District of Columbia or the Court of Appeals for the District of Columbia Circuit); and that the time and reporting requirements need not be so strict as those in 2518.

The above paragraph does not, of course, attempt to guide the congressional judgment but rather to delineate the present scope of our own opinion. We do not attempt to detail the precise standards for domestic security warrants any more than our decision in Katz sought to set the refined requirements for the specified criminal surveillances which now constitute Title III. We do [407 U.S. 297, 324] hold, however, that prior judicial approval is required for the type of domestic security surveillance involved in this case and that such approval may be made in accordance with such reasonable standards as the Congress may prescribe.

After the court decided Keith, the congress went on to create FISA to deal with the issue of national security intelligence gathering. Congress restricted the ability of the president to spy domestically on US citizens, but recognized the ability of the president to conduct foreign intelligence gathering. For the purposes of FISA, foreign intelligence gathering meant purely foreign. That means that the US could conduct surveillance without a warrant (but pursuant to written notification) on calls from someone in Poland to someone in Russia. But Congress did not stop just at foreign to foreign calls. In FISA, Congress gave permission to the president to conduct surveillance domestically if, and only if the surveillance was not on US citizens or permanent residents. That means the president was free to conduct warrantless surveillance on a Russian citizen working in DC at the embassy, calling home to Moscow. This also means that people like Mohammad Atta, someone who entered the country on a student visa, was fair game for warrantless searches.

People are talking about how the court has upheld the presidents inherent constitutional authority to conduct warrantless foreign intelligence gathering. This is true. They have. But what people are not understanding is the the definition of foreign, was just that. Foreign. There has never been a case that has held that domestic to international surveillance falls within the president authority. Any argument that there has been it just flat out wrong. the president has tired to redefine foreign, and that is where people reading these former rulings are falling into a trap. You must read them as defined then. Foreign meant foreign and domstic meant domestic. Under the NSA program, you have a combination of the two.

Personally, I believe that the courts should find that it is not legal. Others believe the courts should find this legal. Either way, there has never been a determination, so you cannot, on either side, say that there is authority to support it. Speculation, yes. Authority, no. This is why the president has not cited any court ruling to support his claim. It just does not exist. If the court were to follow Keith, the NSA program would clearly be illegal. In Keith, the court falls clearly on the side of civil liberties over national security. But, hey, this is a new court that is tilting towards the right, so civil liberties may fall to the wayside. Either way, I am sure we will find out in another two years or so when this makes its way to the SC.