Warrantless Wiretapping: A Long History Of Legality

FISA is unconstitutional, and GW Bush has only enabled Congress to continue to usurp power/authority from the Executive branch.

Article II of the US Constitution has consistently been interpreted in such a way as to allow the President full power/authority to conduct foreign intelligence gathering in any manner he sees fit. Furthermore, Congress cannot pass any law that would abrogate these powers/authority endowed to the president by the Constition.

In 1967, the Court decided Katz v. United States, 389 U.S. 347, which involved a criminal having a phone conversation from a telephone booth. In this case the court rightly applied the 4th amendment. However, the Court specifically noted, that its decision did not apply to situations involving national security, by stating:

Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case.

Five years later, the United States v. United States District Court, 407 U.S. 297 (1972) was heard. This case was about a criminal prosecution for conspiracy to dynamite a Michigan office of the C.I.A.. The Court's majority opinion stated:

[This case involved the question of the President's power, acting through the Attorney General, to authorize electronic surveillance FOR INTERNAL security matters without prior judicial approval.

The court acknowledged the US government has conducted warrantless surveillance in internal security cases "for more than one-quarter of a century." They further stated "This case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country." They went on to add, "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 as to, the issues which may be involved with respect to activities of foreign powers or their agents."

Another USSC decision is Hamdi v. Rumsfeld, 542 U.S. 507 (2004).Hamdi, as an American citizen, was captured on the battlefield in Afghanistan. He then sued the Defense Department, claiming his indefinite detention as an illegal enemy combatant was unconstitutional. The court UPHELD his detention by stating:

The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution. We do not reach the question whether Article II provides such authority, however, because we agree with the Government's alternative position, that Congress has in fact authorized Hamdi's detention through the AUMF (the post-September 11 Authorization for the Use of Military Force.)

The Court further stated: We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use.

The Third Circuit in 1974 heard United States v. Butenko, 494 F.2d 593, where the defendant was convicted of espionage. The court wrote:

In sum, we hold that, in the circumstances of this case, prior judicial authorization was not required since the district court found that the surveillances of Ivanov were “conducted and maintained solely for the purpose of gathering foreign intelligence information.”

In 1974 the Ninth Circuit heard United States v. Buck, 548 F.2d 871), a firearms prosecution. The court stated:

Foreign security wiretaps are a recognized exception to the general warrant requirement...

The Fourth Circuit heard United States v. Truong in 1980, a criminal prosecution arising out of the defendant’s spying on behalf of the Socialist Republic of Vietnam. The case squarely spoke to 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 stating clearly:

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.

The court held such warrantless searches are constitutional, as long as the “object of the search or the surveillance is a foreign power, its agent or collaborators,” and the search is conducted “primarily” for foreign intelligence reasons.

In 2002, the United States Foreign Intelligence Surveillance Court of Review decided Sealed Case No. 02-001, arising out of the Patriot Act, intending to break down the “wall” between law enforcement and intelligence gathering.

The Patriot Act modified Truong’s “primary purpose” test by providing that surveillance under FISA was proper if intelligence gathering was one “significant” purpose of the intercept. In the opinion the Court stated:

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

Doesn't that make sense? If the Executive power/authority is granted by the Constituion, how is it possible for Congress to write a law that would negate, or even merely limit the Executive's inherent Constitutional power/authority?

The federal appellate courts have unanimously held the President has 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.

It’s worth noting, all of the cases above involved warrantless searches within the borders of the United States. The NSA program involves international communications only, and the intercepts take place at least in part, and perhaps wholly, outside the United States. Therefore the NSA case is crystal clear, the Courts have already upheld the Presidential power/authority under Article II.

The Bush administration has argued in addition to inherent power/authority, the NSA program is legal because it was authorized by Congress in the post-September 11 Authorization for the Use of Military Force. The administration clearly wants assume this position, since this is the rationale adopted by the USSC in Hamdi. The AUMF can easily be construed in this manner because it gave the authority to “use all necessary and appropriate force,” and this logically would include intercepting communications, since intelligence gathering is just as much a “fundamental and accepted incident of war” as detaining illegal enemy combatants.

Given the fact the administration used the FISA warrant procedure for the vast majority of its anti-terror electronic intercepts, why did it bypass FISA in a relative handful of instances represented by the NSA program?

When our forces overseas capture a terrorist and take possession of his laptop or cell phone, time is of the essence. Those phone numbers and email addresses will be useful only until the terrorist’s associates realize he has been captured or killed. Therefore the first days, hours or even minutes after the numbers and addresses fall into our possession are likely to be critical.

In addition, courts in the USA have jurisdiction within the United States and its possessions; they have no jurisdiction in another country. In the U.S., a court can issue a warrant requiring a telephone company, for example, to cooperate with a government wiretap. It can make no such order in a foreign country.

FISA may perhaps expand, but cannot not impinge upon, the President’s inherent powers under the Constitution, which are more than sufficient to support the electronic intercepts at issue here, wherever they occurred.

The Electronic Communications Privacy Act of 1986, the basic federal statute that prohibits you and me from wiretapping states in Section 2511 (2) (f):

(f) Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.

So we come full circle, back to the Constitution.

The only constitutional limitation on the President’s power to intercept communications by Americans for national security purposes is that such intercepts be “reasonable.”

Is it reasonable for the administration to do all it can to identify the people who are communicating with known terrorists overseas, via the terrorists’ cell phones and computers, and to learn what terrorist plots are being hatched by those persons?

Is it reasonable to do so even when, or, especially when, some portion of those communications come from people inside the United States? I don’t find it difficult to answer those questions; nor, would the USSC in my opinion.

In short, at one time or another the courts have upheld MANY instances supporting the Bush administrations position. These include the authority/power to:

Detain American citizens for investigative purposes without a warrant;

Arrest American citizens, based on probable cause, without a warrant;

Conduct a warrantless search of the person of an American citizen who has been detained, with or without a warrant;

Conduct a warrantless search of the home of an American citizen in order to secure the premises while a warrant is being obtained;

Conduct a warrantless search of, and seize, items belonging to American citizens that are displayed in plain view and that are obviously criminal or dangerous in nature;

Conduct a warrantless search of anything belonging to an American citizen under exigent circumstances if considerations of public safety make obtaining a warrant impractical;

Conduct a warrantless search of an American citizen's home and belongings if another person, who has apparent authority over the premises, consents;

Conduct a warrantless search of an American citizen's car anytime there is probable cause to believe it contains contraband or any evidence of a crime;

Conduct a warrantless search of any closed container inside the car of an American citizen if there is probable cause to search the car — regardless of whether there is probable cause to search the container itself;

Conduct a warrantless search of any property apparently abandoned by an American citizen;

Conduct a warrantless search of any property of an American citizen that has lawfully been seized in order to create an inventory and protect police from potential hazards or civil claims;

Conduct a warrantless search — including a strip search — at the border of any American citizen entering or leaving the United States;

Conduct a warrantless search at the border of the baggage and other property of any American citizen entering or leaving the United States;

Conduct a warrantless search of any American citizen seeking to enter a public building;

Conduct a warrantless search of random Americans at police checkpoints established for public-safety purposes (such as to detect and discourage drunk driving);

Conduct warrantless monitoring of common areas frequented by American citizens;

Conduct warrantless searches of American citizens and their vessels on the high seas;

Conduct warrantless monitoring of any telephone call or conversation of an American citizen as long as one participant in the conversation has consented to the monitoring;

Conduct warrantless searches of junkyards maintained by American citizens;

Conduct warrantless searches of docks maintained by American citizens;

Conduct warrantless searches of bars or nightclubs owned by American citizens to police underage drinking;

Conduct warrantless searches of auto-repair shops operated by American citizens;

Conduct warrantless searches of the books of American gem dealers in order to discourage traffic in stolen goods;

Conduct warrantless drug screening of American citizens working in government, emergency services, the transportation industry, and nuclear plants;

Conduct warrantless drug screening of American citizens who are school officials;

Conduct warrantless drug screening of American citizens who are school students;

Conduct warrantless searches of American citizens who are on bail, probation or parole.

Quite simply, there is no basis for ANYONE to argue the Bush administration, through the NSA spying program, is doing ANYTHING "illegal."