THE BLOG
01/02/2006 05:39 pm ET Updated May 25, 2011

Bush's Spy Program and the Fourth Amendment

In an earlier post (“King George’s Constitution”), I asserted that the recently disclosed Bush spy program is both unconstitutional and unlawful. Since then, defenders of the program have attacked its critics as “hysterical” and “irresponsible,” and have offered a mélange of arguments for the program's legality, or at least its possible legality. I want to address those arguments. In this post, I will focus on the Fourth Amendment. In a later post I will address the statutory issues.

It is settled law that the Executive may not engage in wiretapping or other forms of electronic surveillance of the contents of private communications without probable cause and a warrant. This is the unambiguous and long-standing understanding of the Fourth Amendment. The question posed by the Bush spy program is whether those requirements are inapplicable, and the Executive is therefore free to engage in electronic surveillance of American citizens on American soil without a warrant or probable cause or, indeed, without any review by the Congress or the judiciary, if it asserts that it is protecting the nation from terrorists.

The most relevant precedent is United States v. United States District Court (Keith). Decided in 1972, Kieth involved a prosecution for conspiracy to blow-up a CIA office. The Executive argued that in order “to gather intelligence information” that was “necessary to protect the nation from attempts . . . to attack and subvert the existing structure of the Government,” it was constitutionally entitled to engage in electronic surveillance of American citizens without complying with the requirements of the Fourth Amendment. In Kieth, the Supreme Court unanimously and unequivocally held that, even in national security investigations, the President had no constitutional authority to conduct electronic surveillance of American citizens on American soil without a judicially issued search warrant based on a finding of probable cause.

In reaching this decision, the Court carefully considered and emphatically rejected the Executive’s demand for an exemption in national security investigations from the ordinary requirements of the Fourth Amendment. It is worth setting out the Court’s reasoning in detail:

• The President has a fundamental responsibility and power “to protect our Government against those who would subvert or overthrow it by unlawful means. . . . In the discharge of this duty, the President . . . may find it necessary to employ electronic surveillance to obtain intelligence information on the plans of those who plot unlawful acts against the Government.”

• But “the broad and unsuspected governmental incursions into conversational privacy which electronic surveillance entails necessitate the application of Fourth Amendment safeguards. . . . History abundantly documents the tendency of Government - however benevolent and benign its motives - to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect ‘[national] security.’”

• “These Fourth Amendment freedoms cannot properly be guaranteed if [national] security surveillances may be conducted solely within the discretion of the Executive Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. [Those] charged with [the] investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. . . . The Fourth Amendment contemplates a prior judicial judgment, not the risk that executive discretion may be reasonably exercised. This judicial role accords with our basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government.,”

• “The Government argues that the special circumstances applicable to [national] security surveillances necessitate [an] exception to the warrant requirement. It is urged that the requirement of prior judicial review would obstruct the President in the discharge of his constitutional duty to protect domestic security. . . . The Government . . . insists that courts ‘as a practical matter would have neither the knowledge nor the techniques necessary to determine whether there was probable cause to believe that surveillance was necessary to protect national security.’ [Moreover,] the Government believes that disclosure to a magistrate of all or even a significant portion of the information involved in domestic security surveillances ‘would create serious potential dangers to the national security and . . . would create a greater danger of leaks.’”

• “These contentions . . . merit the most careful consideration. We certainly do not reject them lightly, especially at a time of worldwide ferment and when civil disorders in this country are more prevalent than in the less turbulent periods of our history. . . . But we do not think a case has been made for the requested departure from Fourth Amendment standards. . . . . We cannot accept the Government's argument that [national] security matters are too subtle and complex for judicial evaluation. . . . .Nor do we believe prior judicial approval will fracture the secrecy essential to official intelligence gathering. . . . Although some added burden will be imposed upon the Attorney General, this inconvenience is justified in a free society to protect constitutional values.”

Now, one might think that the Court’s unanimous opinion in Keith resolved the issue of the Bush spy program, but it does not, because the Court put aside, as not before it, the constitutionality of government surveillance of “foreign powers or their agents.” Although the reasoning of Keith would seem to apply to foreign as well as domestic threats to the national security, at least insofar as the surveillance involves wiretapping American citizens within the United States, Keith left the question unresolved. Thus, it is possible to argue, even after Keith, that Bush’s spy program, which purportedly is directed at those who communicate with foreign-based terrorists or terrorist organizations, is not necessarily prohibited by established Supreme Court precedent.

At the same time, however, it is important to emphasize that no court has ever held that the Executive can engage in electronic surveillance of American citizens on American soil in the context of “foreign intelligence” investigations without complying with the Fourth Amendment. Defenders of the Bush program have trotted out phrases from lower court opinions that have merely assumed arguendo that such searches might be permissible, but none has ever even addressed the question. Indeed, in the opinion cited most often by the defenders of the Bush spy program, In re: Sealed Case, the electronic surveillance at issue was based upon both a warrant and probable cause. The “precedent” relied upon by the administration’s defenders is not “precedent” at all.

The Court in Kieth left open the precise application of the Fourth Amendment to foreign intelligence activities, but the logic of the opinion leaves little doubt that the Bush spy program violates the Fourth Amendment. Although electronic surveillance of “foreign agents” in the United States may call for some refinements in the application of the Fourth Amendment’s probable cause and warrant requirements, it is difficult to see why those requirements should be deemed wholly inapplicable, especially to a program that appears to lack even reasonable internal safeguards. The “constitutional values” that the Court emphasized in Kieth are equally endangered in the foreign intelligence context, and a critical issue in both the domestic and foreign intelligence situations is who decides whether the target of the surveillance is in league with the terrorists. There is no more reason to trust members of the Executive branch in one case than in the other. In neither circumstance should such officials serve as the “sole judges of when to utilize constitutionally sensitive means in pursuing their tasks.”

Moreover, even if there is some justification for granting the Executive greater deference in the realm of “foreign” than “domestic” surveillance, there has been no showing whatever that the Bush program has been carefully designed to focus specifically and narrowly on “foreign agents,” or even what that concept means in the context of the Bush program, which sweeps American citizens within its ambit without any showing that they are themselves “foreign agents” or terrorists. Absent (at the very least) a scrupulously designed and applied set of internal safeguards, the Bush spy program – a secret program – should be held to violate the Fourth Amendment.