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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Monday, December 19, 2005

The new "constitutional" excuse for warrantless eavesdropping on Americans

Now that the Administration itself has acknowledged that FISA cannot be used to justify its warrantless eavesdropping on the communications of American citizens (since that law expressly bars exactly that surveillance), supporters of the Administration are frantically searching around for new defenses to justify the Administration’s behavior (criticizing the Administration or acknowledging wrongdoing by it is not, of course, an option).

One of the most steadfast and stalwart Bush lovers, Hugh Hewitt, thinks he found a Supreme Court case which proves that the Administration has the right to eavesdrop on American citizens without a warrant. The case he waves around as proof that the Administration did nothing wrong is United States v. United States District Court for the Eastern District of Michigan et al, 407 U.S. 297 (1972) -- a case which plainly accomplishes the opposite of Hewitt's goal.

The case being hyped by Hewitt is actually one where the Supreme Court ruled that the Executive Branch is constitutionally prohibited from engaging in warrantless eavesdropping on the domestic communications of American citizens. Put another way, that case held that American citizens have a constitutional right under the Fourth Amendment which bars -- rather than permits -- the Government from eavesdropping on their conversations without a warrant.

To cite this case as though it is helpful to the Administration’s entitlement to eavesdrop without a warrant or that the President has inherent authority to order such surveillance – let alone to say, as Hewitt does, that this case"is where the debate over the president's executive order ought to begin and end"-- is so self-evidently false that one is tempted to ignore this preposterous rationale lest one dignify it as something to take seriously.

But we have seen too many times that there is no argument too absurd to be seized upon by those whose prime mandate is to defend George Bush, and sure enough, Hewitt’s new theory, overnight, is all the rage among Bush defenders, with Hewitt's post being hailed as dispositive proof that Bush did nothing wrong when he ordered the Government to eavesdrop on American citizens without a warrant.

This Supreme Court case ruled on the constitutionality of the Nixon Administration’s warrantless eavesdropping on the conversations of domestic groups suspected of plotting terrorist attacks inside the country, including an alleged bombing of a CIA office in Michigan. The Court defined the constitutional question it was deciding in the very first paragraph:


The issue before us is an important one for the people of our country and their Government. It involves the delicate question of the President's power, acting through the Attorney General, to authorize electronic surveillance in internal security matters without prior judicial approval. (emphasis added).

The Court’s answer: the Constitution prohibits the President from eavesdropping on the communications of American citizens without a judicial warrant:


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. Harlan, Thoughts at a Dedication: Keeping the Judicial Function in Balance, 49 A. B. A. J. 943-944 (1963).

The independent check upon executive discretion is not [407 U.S. 297, 318] satisfied, as the Government argues, by "extremely limited" post-surveillance judicial review. Indeed, post-surveillance review would never reach the surveillances which failed to result in prosecutions. Prior review by a neutral and detached magistrate is the time-tested means of effectuating Fourth Amendment rights. Beck v. Ohio, 379 U.S. 89, 96 (1964). (emphasis added).


This is because, said the Court, the Fourth Amendment’s protection against unreasonable searches and seizures bars the Government from eavesdropping on our conversations without a warrant every bit as much as it bars the Government from knocking down our doors and searching our homes without a warrant:


Though physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed, its broader spirit now shields private speech from unreasonable surveillance. Katz v. United States, supra; Berger v. New York, supra; Silverman v. United States, 365 U.S. 505 (1961).

Our decision in Katz refused to lock the Fourth Amendment into instances of actual physical trespass. Rather, the Amendment governs "not only the seizure of tangible items, but extends as well to the recording of oral statements . . . without any `technical trespass under . . . local property law.'" Katz, supra, at 353. That decision implicitly recognized that the broad and unsuspected governmental incursions into conversational privacy which electronic surveillance entails necessitate the application of Fourth Amendment safeguards (emphasis added).


The constitutional requirement that a warrant be obtained before the Government can engage in such surveillance is not some petty bureaucratic formality invented by process-obsessed lawyers. To the contrary, it is the only means available for ensuring that the Government does not abuse this extremely potent power for its own dissent-punishing goals. The Court thus emphasized:


the very heart of the Fourth Amendment directive: that, where practical, a governmental search and seizure should represent both the efforts of the officer to gather evidence of wrongful acts and the judgment of the magistrate that the collected evidence is sufficient to justify invasion of a citizen's private premises or conversation. Inherent in the concept of a warrant is its issuance by a "neutral and detached magistrate." Coolidge v. New Hampshire, supra, at 453; Katz v. United States, supra, at 356. The further requirement of "probable cause" instructs the magistrate that baseless searches shall not proceed (emphasis added).


And lest anyone think that this is some abstract, lawyer’s argument, this Supreme Court case bizarrely relied upon by Hewitt should disabuse anyone of that notion, too:


The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect "domestic security." Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent. Senator Hart addressed this dilemma in the floor debate on 2511 (3):

"As I read it - and this is my fear - we are saying that the President, on his motion, could declare - name your favorite poison - draft dodgers, Black Muslims, the Ku Klux Klan, or civil rights activists to be a clear and present danger to the structure or existence of the Government."

The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society. . .

Although some added burden will be imposed upon the Attorney General, this inconvenience is justified in a free society to protect constitutional values. Nor do we think the Government's domestic surveillance powers will be impaired to any significant degree. A prior warrant establishes presumptive validity of the surveillance and will minimize the burden of justification in post-surveillance judicial review.

By no means of least importance will be the reassurance of the public generally that indiscriminate wiretapping and bugging of law-abiding citizens cannot occur (emphasis added).

Believe it or not, this is the case which Hugh Hewitt actually offered up last night as proof that the Administration, independent of statute, has the constitutional authority to eavesdrop on American citizens without bothering to obtain a warrant – a case which clearly said exactly the opposite of that assertion, as clearly as it could say it. It is true that this case considered the issue of communications occurring domestically involving a domestic group, rather than internationally (i.e., an American citizen communicating with someone outside the country as part of an international group), but the rationale is identical: except with narrowly defined exceptions not applicable here, the Constitution bars the Executive from eavesdropping on the conversation of American citizens without a warrant.

Thus, as Hewitt’s "defense" demonstrates, the Bush’s Administration’s warrantless surveillance of American citizens not only violates Congressionally acted legislation which bars such surveillance, but also is barred by long-standing constitutional doctrine holding that the core guarantee of the Fourth Amendment protects Americans from exactly such intrusions.

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