With all the kerfufluffle going on about the NSA terrorist suveillance program, today they have an editorial piece from Alberto Gonzales, the new Attorney General and the former White House counsel who apparently authored the opinion in favor of the program.
Mr. Gonzales' position is that the surveillance program is authorized by the Congressional Authorization for Use of Military Force ("AUMF"). The AUMF granted the president the ability to use military force against the terrorists wherever they may be. He then states that the NSA is a component of the United States' military force. He then references a portion of the FISA, which states that persons are prohibited from engaging in electronic surveillance, "in electronic surveillance under color of law except as authorized by statute." Since Congress passed the AUMF, there is a statue authorizing the the NSA to legally circumvent FISA.
That, of course, is not the scary part. And Mr. Gonzales makes the statement that the program was only for international wiretapping.
In my opinion, the scary part comes in the next paragraph. Mr. Gonzales writes,
Lastly, the terrorist surveillance program fully complies with the Fourth
Amendment, which prohibits unreasonable searches and seizures. Like sobriety
checkpoints or border searches, this program involves "special needs" beyond
routine law enforcement, an exception to the warrant requirement upheld by the
Supreme Court as consistent with the Fourth Amendment.
So according to the Attorney General of the United States, wiretapping is the 21st Cenury equivalent of a sobriety checkpoint. Which leads me to wonder how much he has read on the legality of sobriety checkpoints since Texas is listed as a state which specifically prohibits their use. I am not sure what he means by a "border searches". However, if he means passing through customs, where the 4th Amendment does not apply, then he seems to be moving towards just ignoring the 4th Amendment altogether.
Now, I am sure that he does not really intend this. Just as much as the DOJ staffer who wrote this for him does not wish, presumably, to see the 4th Amendment dissappear under the color of fighting terrorism. However, how much does the Attorney General's statement hold up?
The Supreme Court case which decided the legality of sobriety checkpoints is Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990). There the Supreme Court weighed the balance between the need of the state versus the intrusion into the individual's privacy. The Sitz court found that the state had significant need to eradicate the problem of drunk driving because of the harms which it cause. In a similar way today, no one can rationally dispute the government's need to eradicate violent terrorists who have demonstrated the ability to cause death and destruction.
The court went on to examine the intrusion of the search and seizure (the checkpoint stop), found that there was a slight intrusion. The average stop lasted 25 seconds during which time the majority of the people stopped (126) were asked 2 questions before going on their way. Only if they met certain criteria were drivers pulled out of their cars and subjected to a field sobriety test.
Of course, according to Mr. Gonzales, this is the equivalent to wiretapping. The Supreme Court, on the other hand has had something different to say about that. In fact, the Government did try to state that wiretapping (in domestic criminal cases) should not require a warrant. The government's lawyers at the time urged for the creation of an exception to the Fourth Amendment, in the same where there are exceptions to the warrant requirement for Terry stops and seizures due to hot pursuit or searches based on consent. Justice Stewart, writing the opinion in Katz v. Unitd States, 389 U.S. 347 (1967) , flatly rejected this proposal. Saying allowing the government to bypass the warrant requirement would leave the determination of whether the search would violate the Fourth Amendment solely in the hands of the police. See 389 U.S. at 355.
Now, admittedly, Katz is a case concerining a purely domestic crime. However, a few years later, the Supreme Court in United States v. United States District court found that even where the governement is using the wiretaps to prevent the overthrow of the U.S. government by violence, a warrant is still required. Justice Powell, writing the opinion, stated, "These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch." 407 U.S. 297, 316 - 17. Justice Powell went on to note that,
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.Justice Douglas, writing in his concurrence, went even further. He stated,
The Warrant Clause has stood as a barrier against intrusions by officialdom into the privacies of life. But if that barrier were lowered now to permit suspected subversives' most intimate conversations to be pillaged then why could not theirNow I believe that, probably, wiretaps of international calls and communications from known Al Qaeda sources has resulted in intelligence that has probably saved lives. However, if the government has been going beyound merely the international calls, then it has stepped over the line. This is not to say that the government should re-erect the wall between foreign intelligence and domestic intelligence/criminal prevention. It was wrong then, it would be wrong now. What I am saying is that, since it is constitutional for the president to order international surveillance, which may include international telephone calls where one party is in the U.S. (see In re: Sealed Case No. 02-001,) and , then use that to get the warrant. There is a 72 hour window in which to obtain one under the way the law stands now. Furthermore, the court in In re: Sealed Case held that in many respects the traditional probable cause factors required for a wiretap warrant under FISA are lower than they would be for a simple criminal activity. (Although it does require a couple of things that a criminal wiretape warrant would not. The Sealed Case court noted that there was a requirement that the person survailled be believed to be an agent of a foreign power, that there be a nexus between the target and the communication, etc.)
abodes or mail be secretly searched by the same authority? To defeat so terrifying a claim of inherent power we need only stand by the enduring values served by the Fourth Amendment. As we stated last Term in Coolidge v. New Hampshire, 403 U.S. 443, 455 : "In times of unrest, whether caused by crime or racial conflict or fear of internal subversion, this basic law [407 U.S. 297, 333] and the values that it represents may appear unrealistic or 'extravagant' to some. But the values were those of the authors of our fundamental constitutional concepts. In times not altogether unlike our own they won . . . a right of personal security against arbitrary intrusions . . . . If times have changed, reducing everyman's scope to do as he pleases in an urban and industrial world, the changes have made the values served by the Fourth Amendment more, not less, important." We have as much or more to fear from the erosion of our sense of privacy and independence by the omnipresent electronic ear of the Government as we do from the likelihood that fomenters of domestic upheaval will modify our form of governing. 14 [407 U.S. 297, 334]
What then is the government afraid of?
So why is Mr. Gonzales' article so scary? Because it shows he is willing to justify the ends by whatever means. In an open ended conflict like this, where essentially the opposition has no state or legal entity, that kind of thinking can eliminate the freedoms which we seek to protect and export to other nations.
Anyways, this is my opinion alone. And I will now probably have someone listening into my phone calls.