One of the latest talking points among our right wing blogging brethren is their claim that Bush’s warrantless wiretapping of US citizens was justified as a “reasonable search” under the Constitution. You may well ask: “Where does that horse hockey come from?” Well, it comes from a serious misreading of the Fourth Amendment. To understand what the fuss they’re making is all about, let’s look at the language of that Amendment, shall we?

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In effect, our conservative friends are hanging their hat on the claim that Bush’s warrantless electronic surveillance of US citizens is “reasonable” since we are engaged in a “war.” Doesn’t it make sense, they say, to allow any President (or at least a Republican President) the leeway to tap our phones and search our email at a time of such “grave national peril?”

The trouble with this line of argument is that it ignores a series of cases in the Supreme Court which have severely limited what constitutes a “reasonable search” for purposes of evading the warrant requirement in wiretap cases.

More after the fold . . .

Cross posted at Daily Kos.

In Berger v. New York, the Supreme Court struck down a New York “eavesdropping” statute under which judges were authorized to issue warrants without meeting the probable cause standard. The warrants would have permitted police officers to trespass on private premises to install listening devices upon a showing of reasonable ground to believe that evidence of crime may be thus obtained, and particularly describing the person or persons whose communications, conversations or discussions are to be overheard or recorded.”. In the opinion issued on behalf of the majority, Justice Clark wrote:

New York’s broadside authorization rather than being “carefully circumscribed” so as to prevent unauthorized invasions of privacy actually permits general searches by electronic devices, the truly offensive character of which was first condemned in Entick v. Carrington, and which were then known as “general warrants.” The use of the latter was a motivating factor behind the Declaration of Independence. . . .

. . . We believe the statute here is equally offensive. First, as we have mentioned, eavesdropping is authorized without requiring belief that any particular offense has been or is being committed; nor that the “property” sought, the conversations, be particularly described. The purpose of the probable-cause requirement of the Fourth Amendment, to keep the state out of constitutionally protected areas until it has reason to believe that a specific crime has been or is being committed, is thereby wholly aborted. Likewise the statute’s failure to describe with particularity the conversations sought gives the officer a roving commission to “seize” any and all conversations. . . . As with general warrants this leaves too much to the discretion of the officer executing the order. Secondly, authorization of eavesdropping for a two-month period is the equivalent of a series of intrusions, searches, and seizures pursuant to a single showing of probable cause. Prompt execution is also avoided. During such a long and continuous (24 hours a day) period the conversations of any and all persons coming into the area covered by the device will be seized indiscriminately and without regard to their connection with the crime under investigation. Moreover, the statute permits, and there were authorized here, extensions of the original two-month period Ÿ presumably for two months each Ÿ on a mere showing that such extension is “in the public interest.” Apparently the original grounds on which the eavesdrop order was initially issued also form the basis of the renewal. This we believe insufficient without a showing of present probable cause for the continuance of the eavesdrop. Third, the statute places no termination date on the eavesdrop once the conversation sought is seized. This is left entirely in the discretion of the officer. Finally, the statute’s procedure, necessarily because its success depends on secrecy, has no requirement for notice as do conventional warrants, nor does it overcome this defect by requiring some showing of special facts. On the contrary, it permits unconsented entry without any showing of exigent circumstances. Such a showing of exigency, in order to avoid notice, would appear more important in eavesdropping, with its inherent dangers, than that required when conventional procedures of search and seizure are utilized. Nor does the statute provide for a return on the warrant thereby leaving full discretion in the officer as to the use of seized conversations of innocent as well as guilty parties. In short, the statute’s blanket grant of permission to eavesdrop is without adequate judicial supervision or protective procedures.

[Note: All footnotes and citations have been omitted. If you feel the need to read the full text, please go to the link for this case previously provided.]

In short, open ended warrants issued by a State government to permit electronic surveillance of an individual for an indefinite time, issued without probable cause and only on the reasonable belief that evidence of a crime may be obtained, are a no-no.

The Berger decision was followed a few years later by the case of Katz v. United States, in which the Supreme Court addressed the issue of the Executive Branch’s power to wiretap. The Supreme Court held that compliance with the warrant requirement of the Fourth Amendment was necessary before the Federal Government could employ wiretaps against US citizens.

Justice Stewart, in his opinion for the Court, wrote:

“Over and again this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes,” United States v. Jeffers, 342 U.S. 48, 51 , and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment – subject only to a few specifically established and well-delineated exceptions.

It is difficult to imagine how any of those exceptions could ever apply to the sort of search and seizure involved in this case. Even electronic surveillance substantially contemporaneous with an individual’s arrest could hardly be deemed an “incident” of that arrest. . . . Nor could the use of electronic surveillance without prior authorization be justified on grounds of “hot pursuit.” And, of course, the very nature of electronic surveillance precludes its use pursuant to the suspect’s consent.

[Note: All footnotes and citations have been omitted. If you feel the need to read the full text, please go to the link for this case previously provided.]

In other words, the federal government may not employ electronic surveillance against Americans without complying with the warrant requirement. The Supreme Court found no exception applicable that would convert a warrantless electronic search into a “reasonable” search for purposes of satisfying the Fourth Amendments prohibition against unreasonable searches and seizures.

The third case in this series, and the most important one for our purposes, United States v. United States District Court, specifically addressed the issue of the President’s power to employ electronic surveillance measures in cases involving domestic subversion. As Justice Powell neatly stated the issue in his unanimous opinion for the Court:

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.

Here the Court squarely faced the question of whether warrantless wiretaps of Americans carried out for national security purposes were permissible under the Fourth Amendment. The government originally argued that the president authority was based upon “inherent” presidential power, but that argument was withdrawn. Instead, the Solicitor General argued to the Supreme Court that electronic surveillance in cases of domestic subversion was a “reasonable” search and seizure which did not require a warrant under the Fourth Amendment.

The Court strongly disagreed with that assertion. Justice Powell writing for the Court, stated:

[Note: Please excuse the extent of my quotation from this opinion, but, as it is the case which is most directly on point regarding the Bush wiretaps, I felt it deserved a lengthier excerpt. As with the other cases discussed herein, all footnotes and citations have been omitted. If you feel the need to read the full text, please go to the link for this case previously provided.]

[The Court’s decision in Katz] implicitly recognized that the broad and unsuspected governmental incursions into conversational privacy which electronic surveillance entails necessitate the application of Fourth Amendment safeguards.

. . . Though the Fourth Amendment speaks broadly of “unreasonable searches and seizures,” the definition of “reasonableness” turns, at least in part, on the more specific commands of the warrant clause. Some have argued that “[t]he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable,” United States v. Rabinowitz. This view, however, overlooks the second clause of the Amendment. The warrant clause of the Fourth Amendment is not dead language. Rather, it has been

“a valued part of our constitutional law for decades, and it has determined the result in scores and scores of cases in courts all over this country. It is not an inconvenience to be somehow `weighed’ against the claims of police efficiency. It is, or should [407 U.S. 297, 316] be, an important working part of our machinery of government, operating as a matter of course to check the `well-intentioned but mistakenly overzealous executive officers’ who are a part of any system of law enforcement.” Coolidge v. New Hampshire.

. . . These Fourth Amendment freedoms cannot properly be guaranteed if domestic 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. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. Katz v. United States. But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech.

. . . The Government argues that the special circumstances applicable to domestic security surveillances necessitate a further 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. We are told further that these surveillances are directed primarily to the collecting and maintaining of intelligence with respect to subversive forces, and are not an attempt to gather evidence for specific criminal prosecutions. It is said that this type of surveillance should not be subject to traditional warrant requirements which were established to govern investigation of criminal activity, not ongoing intelligence gathering.

But we do not think a case has been made for the requested departure from Fourth Amendment standards. The circumstances described do not justify complete exemption of domestic security surveillance from prior judicial scrutiny. Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President’s domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure.

Thus, we conclude that the Government’s concerns do not justify departure in this case from the customary Fourth Amendment requirement of judicial approval prior to initiation of a search or surveillance. 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.

In brief: No spying on American citizens without a warrant. Even, or most especially, if that surveillance is done for the national security purposes.

So if, in your perusal of the vast right wing echo chamber, you read that these broad ranging wiretaps by Bush were “reasonable” and therefore didn’t require any warrants under the Fourth Amendment, be sure to add your own comment pointing out to the author of such blather the decisions of the Supreme Court in the Berger, Katz and (most especially) US v. District Court cases. At the present time, these are the Supreme Court precedents that govern Bush’s warrantless wiretapping, and under their rulings what he did clearly violated the Fourth Amendment.

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