JURIST Guest Columnist William Banks of Syracuse University College of Law says that even if legal authority is found for the NSA domestic surveillance program, such spying still violates the Fourth Amendment to the US Constitution protecting Americans against unreasonable search and seizure…

The political minuet being performed in recent weeks between angry members of Congress and the Bush Administration over the domestic spying program has done little if anything to assuage those of us concerned about the ongoing illegality of the program. President Bush’s order permitting the National Security Agency (NSA) to eavesdrop on Americans without any judicial approval or warrant shows just how prescient our Framers were in placing controls on the executive. In this instance, the legal controls were present — the Foreign Intelligence Surveillance Act (FISA) process that allows for secret judicial authorization to conduct the sort of electronic eavesdropping being conducted by NSA — but they were circumvented. The civil liberties dimensions of the NSA program have taken a legal back seat to the constitutional and statutory authority issues in these debates. Still, in the unlikely event that legal authority for the NSA program can be found, this domestic spying violates the Fourth Amendment.

Administration lawyers concede that, in general, individuals have a reasonable expectation of privacy in their telephone calls, and that probable cause and a warrant are necessary under the Fourth Amendment to authorize electronic surveillance of those communications. The extent to which national security and foreign intelligence collection might be exempt from the general rule and thus subject to the lesser Fourth Amendment requirement of reasonableness has been considered carefully if not exhaustively by Congress and the judiciary. Thirty-four years ago the Supreme Court first confronted the tensions between unmonitored executive surveillance and individual freedoms in the national security setting. United States v. United States District Court (known as the Keith decision, after the Judge who first decided it) arose from a criminal proceeding in which the United States charged three defendants with conspiracy to destroy government property — the dynamite bombing of a CIA office in Ann Arbor, Michigan. During pretrial proceedings, the defendants moved to compel disclosure of electronic surveillance. The Government admitted that a warrantless wiretap had intercepted conversations involving the defendants. In the Supreme Court, the government defended its actions on the basis of the Constitution and a national security disclaimer in the 1968 Crime Control Act. Justice Powell’s opinion for the Court first rejected the statutory argument and found that the Crime Control Act disclaimer of any intention to legislate regarding national security surveillance simply left presidential powers in the area untouched.

Turning to the constitutional claim, the Court found authority for national security surveillance implicit in the President’s Article II Oath Clause, which includes the power “to protect our Government against those who would subvert or overthrow it by unlawful means.” However, the “broader spirit” of the Fourth Amendment, and “the convergence of First and Fourth Amendment values” in national security wiretapping cases made the Court especially wary of possible abuses of the national security power. Justice Powell then proceeded to balance “the duty of Government to protect the domestic security, and the potential danger posed by unreasonable surveillance to individual privacy and free expression.”

Although the government argued for an exception to the warrant requirement, citing the unique characteristics of ongoing national security surveillance, Justice Powell answered that the potential for abuse of the surveillance power in this setting, along with the capacity of the judiciary to manage sensitive information in ex parte proceedings, rendered any inconvenience to the government “justified in a free society to protect constitutional values.”

Justice Powell was careful to emphasize that the case involved only the domestic aspects of national security, and that the Court was not expressing an opinion on the discretion to conduct surveillance when foreign powers or their agents are targeted. Finally, the Court left open the possibility that different warrant standards and procedures than those required in normal criminal investigations might be applicable in a domestic national security investigation, implicitly inviting Congress to promulgate a set of standards for such surveillance:

Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens. For the warrant application may vary according to the governmental interest to be enforced and the nature of the citizen rights deserving protection.

Although Congress did not create discrete statutory rules for investigating domestic national security matters, Justice Powell’s opinion provided an important impetus for the development of what became FISA and regulation of foreign intelligence surveillance. Like the Supreme Court, Congress recognized that warrantless surveillance by the executive branch untethered by law could undermine important constitutional values at the confluence of the First and Fourth Amendments. FISA thus became a sort of constitutional compromise between adherence to the traditional law enforcement warrant and probable cause requirements and those who sought authority for warrantless surveillance. Instead of the traditional law enforcement warrant and probable cause, FISA requires the government to show that it seeks foreign intelligence and that there is probable cause to believe that the target of the surveillance is an agent of a foreign power. All of the federal courts that reviewed the constitutionality of FISA upheld it against the Fourth Amendment challenge, and no court has upheld warrantless electronic surveillance since the enactment of FISA.

Congress made clear in FISA that its requirements provide the “exclusive” means for obtaining an order to engage in wiretapping in the United States in pursuit of foreign intelligence. In effect, the Administration was boxed in by Congress and FISA on the Fourth Amendment. If Congress had not responded to Justice Powell with a compromise scheme, refusing claims for executive branch authority to go it alone in foreign intelligence collection would be difficult to defend in today’s climate. Now, the proponents of the NSA program are left with the unconvincing arguments that FISA is too cumbersome, or that the statute unconstitutionally limits the Commander in Chief.

The only justification offered by the Administration that the NSA program complies with the Fourth Amendment is a weak one, borrowed from the opinion of the FISA Court of Review in its In re Sealed Case decision in 2002. The argument is that the NSA program may be fitted within a line of Fourth Amendment cases excepting from the warrant and probable cause requirements situations where the government has “special needs” above and beyond ordinary law enforcement. The “special needs” category has sustained drunk-driving checkpoints and drug testing in schools, programs that are relatively non-intrusive and standardized. “Special needs” has never been extended to the highly intrusive and wholly discretionary warrantless wiretapping. As the FISA Cour
t of Review recognized in upholding FISA, the FISA system for obtaining judicial approval based on individualized suspicion is workable and lawful.

If the NSA program was designed to listen in on known al Qaeda members or affiliates who are U.S. persons, as first claimed by the Administration, it is not difficult to imagine FISA judges issuing orders for such surveillance, following a FISA judge’s finding that there is probable cause to believe that the targets are agents of a foreign power. As congressional hearings and continued reporting expand our knowledge of the NSA program, it appears that the surveillance was not necessarily limited to known al Qaeda members of affiliates. If instead, or in addition, the NSA program involves data mining — identifying persons of interest from among the general population, rather than listening in on persons of interest already identified — the government’s unwillingness to follow the FISA process for the data mining makes more sense. From the mined data, however, NSA still presumably identifies individuals who could be targeted through the FISA means.

The President assures us that the NSA program protects civil liberties. On this one, I’ll cast my lot with Justice Powell, who maintained that the inconvenience of a judicial role in monitoring this program is “justified in a free society to protect constitutional values.”

William Banks is the Laura J. and L. Douglas Meredith Professor at Syracuse University College of Law, the Director of Syracuse’s Institute for National Security and Counter Terrorism, and co-author of the casebook National Security Law).
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