Warrantless searches in the United States
From Wikipedia, the free encyclopedia
 |
The neutrality or factuality of this article or section may be compromised by weasel words. You can help Wikipedia by improving weasel-worded statements. |
Warrantless searches have been conducted in America since prior to the founding of the United States.[1] Motivated by a history of abuse of warrantless searches under the British Empire the Founding Fathers later included a prohibition against unreasonable searches and seizures in the Fourth Amendment of the United States Constitution,
Contents |
[edit] Historical perspective
Attorney General Alberto Gonzales briefed Congress on February 6, 2006 on the history of warrantless foreign intelligence searches"
"This fact is amply borne out by history. This Nation has a long tradition of wartime enemy surveillance—a tradition that can be traced to George Washington, who made frequent and effective use of secret intelligence. One source of Washington’s intelligence was intercepted British mail. See Central Intelligence Agency, Intelligence in the War of Independence 31, 32 (1997). In fact, Washington himself proposed that one of his Generals “contrive a means of opening [British letters] without breaking the seals, take copies of the contents, and then let them go on.” Id. at 32 (“From that point on, Washington was privy to British intelligence pouches between New York and Canada.”). And for as long as electronic communications have existed, the United States has intercepted those communications during wartime, and done so, not surprisingly, without judicial warrants. In the Civil War, for example, telegraph wiretapping was common and provided important intelligence for both sides. In World War I, President Wilson authorized the military to intercept all telegraph, telephone, and cable communications into and out of the United States; he inferred the authority to do so from the Constitution and from a general congressional authorization to use military force that did not mention anything about such surveillance. See Exec. Order No. 2604 (Apr. 28, 1917). So too in World War II; the day after the attack on Pearl Harbor, President Roosevelt authorized the interception of all communications traffic into and out of the United States. The terrorist surveillance program, of course, is far more focused, since it involves the interception only of international communications that are linked to al Qaeda." [1]
Other historical precedents cited by Attorney General Gonzales were Cold War era black ops and warrantless wiretaps. Abuses of power by the federal government led to reform legislation in the 1970s.[2] Advancing technology began to present questions not directly addressed by the legislation as early as 1985.[3]
FISA Court of Review Ruling in 2002
In 2002, in Re Sealed Case No. 02-001 the United States Foreign Intelligence Surveillance Court of Review examined all the significant appellate decisions. They noted all the Federal courts of appeal having looked at the issue had concluded that there was such constitutional power. Furthermore, if there was such power, "FISA could not encroach on the president's constitutional power." However, In Re Sealed Case "[took] for granted" that these cases are correct.
"The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power......
....Even without taking into account the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close. We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable." [2]
The balancing test from Keith case referred to in the decision is a legal test that asks if the primary use of the warrantless search to collect foreign intelligence as per presidential authority, or was the primary use of the warrantless search to gather evidence to use in a criminal trial.
Executive Orders
Executive orders by other administrations including Clinton's [3] and Carter's [4] authorized the Attorney General to perform warrantless searches for purposes of foreign intelligence threats. These Executive Orders were exercises of executive power under Article II consistent with FISA.
[edit] The Cold War
In 1975, the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (the Church Committee), a U.S. Senate committee chaired by Senator Frank Church (D-ID), investigated intelligence gathering by the federal government, including warrantless surveillance.[4] The Committee report found the "Americans who violated no criminal law and represented no genuine threat to the 'national security' have been targeted, regardless of the stated predicate. In many cases, the implementation of wiretaps and bugs has also been fraught with procedural violations, even when the required procedures were meager, thus compounding the abuse. The inherently intrusive nature of electronic surveillance, moreover, has enabled the Government to generate vast amounts of information - unrelated to any legitimate governmental interest - about the personal and political lives of American citizens."[5]
The "potential criminal liability of the National Security Agency and the Central Intelligence Agency for operations such as SHAMROCK (interception of all international cable traffic from 1945 to 1975) and MINARET (use of watchlists of U.S. dissidents and potential civil disturbers to provide intercept information to law enforcement agencies from 1969 to 1973)" helped persuade president Gerald Ford in 1976 to seek surveillance legislation, which was ultimately enacted as FISA in 1978.[6]
In a forward looking 1985 report, "Electronic Surveillance and Civil Liberties," the nonpartisan Congressional Office of Technology Assessment suggested legislation be considered for a surveillance oversight board.[7] Congress disbanded this agency in 1995.[8]
[edit] Clinton Administration
On July 14, 1994 President Clinton's Deputy Attorney General and later 9/11 Commission member Jamie Gorelick testified to the Senate Intelligence Committee that “The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes…and that the president may, as has been done, delegate this authority to the Attorney General.” This “inherent authority” was used to search the home of CIA traitor Aldrich Ames without a warrant. "It is important to understand," Gorelick continued, "that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities."[9]
[edit] George W. Bush Administration
[edit] NSA warrantless surveillance controversy
On December 16, 2005, The New York Times printed a story asserting that following 9/11, "President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying" as part of the War on Terrorism. [10]
- Under a presidential order signed in 2002, the intelligence agency monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.
The revelation of this program caused a widespread controversy, with legal experts and politicians concluding that it violates the Foreign Intelligence Surveillance Act and other legal experts saying that the FISA law only applied to domestic to domestic calls and not to overseas calls and communications that involved a foreign intelligence threat. Bush administration officials such as the Attorney General defended the program by siting that this was a part of the justification that the Clinton administration used in its warrantless search of Aldrich Ames, that since Ames was spying for a foreign power that Article II presidential power applied and FISA did not (see Attorney General Gonzalez statement above).
[edit] NSA call database
In May 2006, it was revealed that the Bush administration has also been compiling a database of telephone calls created by the United States National Security Agency (NSA) with the cooperation of three of the largest telephone carriers in the United States: AT&T, Verizon and BellSouth.[11] All three companies were paid to provide the information to the NSA.[12] It is speculated that the database contains over 1.9 trillion call-detail records of phone calls made after September 11, 2001.[13] The database's existence has prompted fierce objections from those who view it as constituting a warrantless or illegal search, however the collection of third party information has been authorized by the Patriot Act and upheld by the courts.
[edit] See also
- NSA warrantless surveillance controversy
- ECHELON
- Information Awareness Office
- Constitution of the United States
- Foreign Intelligence Surveillance Act
- Fourth Amendment to the United States Constitution
- Unitary Executive theory
- "War on Terrorism"
- Cabinet noir
[edit] References
- ^ US Department of Justice (February 6, 2006). Prepared Statement of Hon. Alberto R. Gonzales, Attorney General of the United States. Press release.
- ^ National Security Archive at George Washington University. Wiretap Debate Déjà Vu. Retrieved on 4 February 2006.
- ^ Princeton University. The OTA Legacy. Retrieved on February, 2006.
- ^ Paul Wolf Archive. Church Committee: WARRANTLESS FBI ELECTRONIC SURVEILLANCE. Retrieved on February, 2006.
- ^ Paul Wolf Archive. Church Committee: NATIONAL SECURITY AGENCY SURVEILLANCE AFFECTING AMERICANS. Retrieved on February, 2006.
- ^ National Security Archive at George Washington University. Wiretap Debate Déjà Vu. Retrieved on 4 February 2006.
- ^ National Security Archive. Electronic Surveillance and Civil Liberties. Retrieved on February, 2006.
- ^ Princeton University. The OTA Legacy. Retrieved on February, 2006.
- ^ York, Byron. "Clinton Claimed Authority to Order No-Warrant Searches - Does anyone remember that?", National Review Online, December 20, 2005.
- ^ James Risen, Eric Lichtblau. "Bush Lets U.S. Spy on Callers Without Courts", The New York Times, December 16, 2005.
- ^ NSA has massive database of Americans' phone calls — USA Today, 11 May 2006.
- ^ Hold the Phone — Newsweek, May 22, 2006.
- ^ Data on Phone Calls Monitored — Washington Post, 12 May 2006
