Bush's NSA Surveillance and the Fourth Amendment

Geoffrey R. Stone is a Distinguished Service Professor of Law at the University of Chicago. He also is the former Dean of the law school and former Provost of the University of Chicago. His most recent book, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (W.W. Norton 2004), received both the Robert F. Kennedy Book Award and the Los Angeles Times Book Prize for the Best Book of the Year in History.

Today, over at Huffington Post, Professor Stone analyzes Bush's warrantless NSA electronic surveillance program in the context of the Fourth Amendment.

Here's a snippet:

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.

Stone points out that some supporters of Bush's policy dwell on the fact that the Keith decision refused to address surveillance involving foreign powers or agents because that precise issue was not before it. He writes,

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.

That argument by Bush supporters rings hollow, Stone says:

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.

This is an excellent, scholarly but understandable read and I highly recommend it to all.

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    Re: Bush's NSA Surveillance and the Fourth Amendme (none / 0) (#2)
    by Edger on Mon Jan 02, 2006 at 06:04:03 PM EST
    On September 6, 2000 a Professor Michael O'Neill testified before the Senate Committee on the Judiciary on the subject "The Fourth Amendment and the FBI's Carnivore Program". His testimony makes reference to this:
    In Olmstead v. United States (1928), the Supreme Court considered whether warrantless wiretapping violated the Fourth Amendment. Analogizing to the past, rather than looking to the future, the Court found no constitutional violation because the surveillance was accomplished without intruding on the defendant's physical property. Justice Brandeis, however, penned a thoughtful dissent in which he observed that constitutional principles were undermined to the extent the Court focused exclusively on the means of communication, rather tha the fact of the communication itself. He reasoned that, in order to preserve fundamental rights, the Constitution must be interpreted with technological advancements in mind. Justice Brandeis' words proved prescient. The Supreme Court ultimately adopted his foreward-thinking understanding of the inherent intrusiveness of wiretapping. In Katz v. United States, the Court declared that the Fourth Amendment "protects people, not places" and held wiretapping permissible only after the issuance of a valid warrant. This decision expressly overruled Olmstead, replacing the previous focus on the means of communication with an appreciation of the fact of communication as the source of the constitutional right.
    Sorry for the long quote TL, and I am no lawyer, but the SC decision in the Katz case seems to me pretty unambiguous. Does it apply in the current context of Bush and the NSA surveillance?

    I defer to Professor Stone as well as yourself in all matters legal. (But his analysis would be more weighty if he hadn't mispelled Keith as Kieth three times, while correctly spelling it Keith only four times.)

    In addition to his analysis from the Fourth Amendment perspective, I would like to hear Professor Stone's analysis of the legality of the wiretapping in the context of laws passed by Congress, for example the law that created the special courts that hear these kinds of cases and the resolution authorizing the use of force in Afganistan. To this layman it seems that the President's actions are willfully illegal on those grounds, and create a constitutional crisis, but I would like an expert's view.

    if someone has any insight to this I would appreciate some feedback. earlier monday there was an article published about john bolton getting the nsa to give him names of US people that were picked up when the nsa was listening in on conversations in other countries. supposedly the US names are supposed to be hidden but bolton asked the nsa who those people were and they told him. does anyone know why or how bolton was able to get those names? can any governtment official get that? I am getting confused about these stories that say the names are being passed around to all these government agencies. I don't get why that's important. anyone who can explain this would be my hero!