Idealism and Argument

There was very little in the white paper that surprised me. Congress authorized the President to use military force to hunt down al Qaeda, and gathering intelligence is inherently part of using military force. Referring to Quirin v. United States, the paper convincingly argues that if al Qaeda is acting within the borders of the United States, the President may use military and military-related assets to respond to them, and I don’t think many sane people would disagree with that. But this begs the question of why the President and his minions did not seek warrants for doing so, particularly given the flexible and secret mechanism provided by FISA. The response is, “They didn’t have to, after all, we do warrantless searches of people we don’t even suspect of crimes all the time”:

…the Supreme Court repeatedly has made clear that in situations involving “special needs” that go beyond a routine interest in law enforcement, the warrant requirement is inapplicable. See Vernonia, 515 U.S. at 653 (there are circumstances “‘when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable’”) (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)); see also McArthur, 531 U.S. at 330 (“When faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable.”). … one application in which the Court has found the warrant requirement inapplicable is in circumstances in which the Government faces an increased need to be able to react swiftly and flexibly, or when there are at stake interests in public safety beyond the interests in ordinary law enforcement. One important factor in establishing “special needs” is whether the Government is responding to an emergency that goes beyond the need for general crime control. See In re Sealed Case, 310 F.3d at 745-46.

Thus, the Court has permitted warrantless searches of property of students in public schools, see New Jersey v. T.L.O., 469 U.S. 325, 340 (1985) (noting that warrant requirement would “unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in the schools”), to screen athletes and students involved in extracurricular activities at public schools for drug use, see Vernonia, 515 U.S. at 654-55; Earls, 536 U.S. at 829-38, to conduct drug testing of railroad personnel involved in train accidents, see Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 634 (1989), and to search probationers’ homes, see Griffin, 483 U.S. 868. Many special needs doctrine and related cases have upheld suspicionless searches or seizures. See, e.g., Illinois v. Lidster, 540 U.S. 419, 427(2004) (implicitly relying on special needs doctrine to uphold use of automobile checkpoint to obtain information about recent hit-and-run accident); Earls, 536 U.S. at 829-38 (suspicionless drug testing of public school students involved in extracurricular activities); Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 449-55 (1990) (road block to check all motorists for signs of drunken driving); United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (road block near the border to check vehicles for illegal immigrants); cf. In re Sealed Case, 310 F.3d at 745-46 (noting that suspicionless searches and seizures in one sense are a greater encroachment on privacy than electronic surveillance under FISA because they are not based on any particular suspicion, but “[o]n the other hand, wiretapping is a good deal more intrusive than an automobile stop accompanied by questioning”). To fall within the “special needs” exception to the warrant requirement, the purpose of the search must be distinguishable from ordinary general crime control. See, e.g., Ferguson v. Charleston, 532 U.S. 67 (2001); City of Indianapolis v. Edmond, 531 U.S. 32, 41 (2000).

You can see where Gonzalez is going with this with respect to the government’s desire to collect information regarding communications with suspected terrorists.

I have two reactions to this — first of all, holy crap, that’s a lot of different searches that police can undertake without warrants and even without suspicion. I’m not sure that I agree with all of those precedents, either. Sitz authorizes a suspicionless drunk-driving stop; Martinez-Fuente authorizes a suspicionless search for illegal aliens. Both were found to be “distinguishable from ordinary general crime control.” No reason at all to believe that any particular person is committing a crime, and no warrant yet the searches are allowed noentheless.

Now, it does seem to me that the level of intrusion involved in these searches are minimal, especially when compared with the highly intrusive nature of a wiretap. The white paper earlier concedes that the reasonability of a search is determined by balancing the government’s need for the information against the intrusiveness of the means of obtaining that information. Asking someone to stop and speak to a police officer, while not even getting out of the car, is a good deal different than being asked to get out of the car and perform a field sobriety test. A wiretap is about as intrusive upon one’s reasonable expectation of privacy as one can reasonably get.

Second, if we accept the government’s claims at face value (which I have so far) that the only communications being monitored are those between a U.S. citizen and a suspected al Qaeda member, then isn’t there already a suspicion of criminal activity going on? Yes, I realize the argument that terrorism is better considered as a military problem than a criminal one, but we haven’t got the Constitutional system in place to relegate everything to a military decision-making regine. So if we’re really talking about people having conversations with serious bad guys, then why aren’t there warrants being requested and issued? As I’ve pointed out before (and as lots of people also have pointed out before me) it’s no great burden to get the warrant since the government can start wiretapping today and get the warrant three days from now. If the NSA finds out that Johnny is talking to Abdul, and Johnny is a suspected al-Qaeda member, then that seems to be to be enough reasonable suspicion — probable cause, even, depending on how strong the intelligence is on Johnny — to justify the issuance of a warrant.

The white paper nowhere argues that the government could not have practicably obtained these warrants. It argues instead that there was no Constitutional obligation to have done so, and the authorization of the use of military force against al Qaeda relieved whatever obligations might otherwise have been in place to seek a FISA warrant.

This can’t be right. If it is, then Congress wrote the President a “blank check” when it authorized the use of force. The Supreme Court has specifically said that was not the case, even when giving a very deferential reading of Congress’ actions and the powers delegated to the President thereunder. Hamidi v. Rumsfeld, 542 U.S. 507, 526 (plurality opinion by Justice O’Connor). This reading of the delegation of power to the President is overbroad and overreaching; Congress wanted the President to take out the bad guys in short order and he did his best to comply. Congress did not abdicate its role as a co-equal branch of the government, nor did it attempt to strip the courts of their power as a co-equal branch of the government, nor did Congress agree to a proclamation of martial law. Although the President has been authorized to use military force to go after our enemies, there are still limits to his power and I am convinced now that he has acted in excesss of them and to the detriment of the civil rights of American citizens.

The Wife thinks I’m being overly idealistic about all of this. Good. I’m glad to find I still have some idealism left in me after spending half my lifetime involved in issues of politics, policy, and law. I’m glad to discover that I still care about what’s good about America, that I’m unwilling to sacrifice being an American just because some religious nut out there wants to blow us up. We can blow him up first and not stop being Americans in the process. That’s what I want the President to do. If that means gathering intelligence from U.S. citizens, then the least he can do is get a warrant a few days after the fact. That’s simply not too much to ask.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


  1. One thing I have not read is the actual nature of the wiretapping. Apparently, under FISA the wire tapping must be approved ahead of time by the attorney general and even for the retroactive approval there must be probable cause.The wire tapping I assume is of the data mining type, wherein algorithms are used to flag calls, so there would never be probable cause.So, if my suspicions are right, the administration can either use algorithms and not FISA or not use the algorithms at all. Since it is statistical analysis, there will be many wiretaps that are on people who have done nothing wrong and are not associating with criminals. What then is the appropriate balance? One response would be that you cannot balance our right to privacy, that no wiretapping can be done if it impacts any percentage of law-abiding people. This seems like the wrong response, but I don’t know the right one.

  2. I agree, it’s not deferential enough to the government, which has a legitimate need to gather information, to insist on a near-absolute right to privacy. But an algorithm-based search (which is really the only practical way to get anything valuable out of the enormous amount of communication going on) is necessarily too deferential to the government. I think the line has to be drawn at “reasonable suspicion” that the phone call, e-mail, or other communication has some relationship to terrorist activity.

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