SCOTUS AND FISA COURT OF REVIEW: WARRANTLESS SEARCHES FOR SPECIAL PURPOSES ARE OKAY

FISA Court of Review (In re: Sealed Case No. 02-001; Argued 9/9, 2002; Decided 11/18, 2002):

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.26 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. [...]

The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable. [...]

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.

Here's more:

Supreme Court’s Special Needs Cases

The distinction between ordinary criminal prosecutions and extraordinary situations underlies the Supreme Court’s approval of entirely warrantless and even suspicionless searches that are designed to serve the government’s “special needs, beyond the normal need for law enforcement.” Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653 (1995) (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (internal quotation marks omitted)) (random drug-testing of student athletes).32 Apprehending drunk drivers and securing the border constitute such unique interests beyond ordinary, general law enforcement. Id. at 654 (citing Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (1990), and United States v. Martinez- Fuerte, 428 U.S. 543 (1976)).

A recent case, City of Indianapolis v. Edmond, 531 U.S. 32 (2000), is relied on by both the government and amici. In that case, the Court held that a highway check point designed to catch drug dealers did not fit within its special needs exception because the government’s “primary purpose” was merely “to uncover evidence of ordinary criminal wrongdoing.” Id. at 41-42. The Court rejected the government’s argument that the “severe and intractable nature of the drug problem” was sufficient justification for such a dragnet seizure lacking any individualized suspicion. Id. at 42. Amici particularly rely on the Court’s statement that “the gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose.” Id.

But by “purpose” the Court makes clear it was referring not to a subjective intent, which is not relevant in ordinary Fourth Amendment probable cause analysis, but rather to a programmatic purpose. The Court distinguished the prior check point cases Martinez-Fuerte (involving checkpoints less than 100 miles from the Mexican border) and Sitz (checkpoints to detect intoxicated motorists) on the ground that the former involved the government’s “longstanding concern for the protection of the integrity of the border,” id. at 38 (quoting United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985)), and the latter was “aimed at reducing the immediate hazard posed by the presence of drunk drivers on the highways.” Id. at 39. The Court emphasized that it was decidedly not drawing a distinction between suspicionless seizures with a “non-law-enforcement primary purpose” and those designed for law enforcement. Id. at 44 n.1. Rather, the Court distinguished general crime control programs and those that have another particular purpose, such as protection of citizens against special hazards or protection of our borders. The Court specifically acknowledged that an appropriately tailored road block could be used “to thwart an imminent terrorist attack.” Id. at 44. The nature of the “emergency,” which is simply another word for threat, takes the matter out of the realm of ordinary crime control.33

Conclusion

FISA’s general programmatic purpose, to protect the nation against terrorists and espionage threats directed by foreign powers, has from its outset been distinguishable from “ordinary crime control.” After the events of September 11, 2001, though, it is hard to imagine greater emergencies facing Americans than those experienced on that date.

We acknowledge, however, that the constitutional question presented by this case–whether Congress’s disapproval of the primary purpose test is consistent with the Fourth Amendment–has no definitive jurisprudential answer. The Supreme Court’s special needs cases involve random stops (seizures) not electronic searches. In one sense, they can be thought of as a greater encroachment into personal privacy because they are not based on any particular suspicion. On the other hand, wiretapping is a good deal more intrusive than an automobile stop accompanied by questioning.

Although the Court in City of Indianapolis cautioned that the threat to society is not dispositive in determining whether a search or seizure is reasonable, it certainly remains a crucial factor. Our case may well involve the most serious threat our country faces. 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.

Relevant Footnotes:

29 An FBI agent recently testified that efforts to conduct a criminal investigation of two of the alleged hijackers were blocked by senior FBI officials–understandably concerned about prior FISA court criticism–who interpreted that court’s decisions as precluding a criminal investigator’s role. One agent, frustrated at encountering the “wall,” wrote to headquarters: “[S]omeday someone will die–and wall or not–the public will not understand why we were not more effective and throwing every resource we had at certain ‘problems.’ Let’s hope the National Security Law Unit will stand behind their decisions then, especially since the biggest threat to us now, [Usama Bin Laden], is getting the most ‘protection.’” The agent was told in response that headquarters was frustrated with the issue, but that those were the rules, and the National Security Law Unit does not make them up. The Malaysia Hijacking and September 11th: Joint Hearing Before the Senate and House Select Intelligence Committees (Sept. 20, 2002) (written statement of New York special agent of the FBI).

30 The Court in a footnote though, cited authority for the view that warrantless surveillance may be constitutional where foreign powers are involved. Keith, 407 U.S. at 322 n.20.

31 To be sure, punishment of a U.S. person’s espionage for a foreign power does have a deterrent effect on others similarly situated.

32 The Court has also allowed searches for certain administrative purposes to be undertaken without particularized suspicion of misconduct. See, e.g., New York v. Burger, 482 U.S. 691, 702-04 (1987) (warrantless administrative inspection of premises of closely regulated business); Camara v. Municipal Court, 387 U.S. 523, 534-39 (1967) (administrative inspection to ensure compliance with city housing code).

CLEARLY, THIS DECISION BY THE FISA COURT OF REVIEW PROVES THAT THE SCOTUS HAS APPROVED WARRANTLESS SEARCHES OF US CITIZENS; "(Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653 (1995) (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (internal quotation marks omitted))."

CLEARLY, THE FISA COURT OF REVIEW HAS DECIDED THAT WARRANTLESS SEARCHES OF US PERSONS FOR SPECIAL NEEDS IS OKAY.

THE 2001 AUMF CLEARLY DEFINES THE SPECIAL NEED - AND THE TARGETS: AL QAEDA AND ITS AFFILIATES.

SINCE THE "PROGRAMMATIC PURPOSES" OF THE NSA INTERCEPTS PROGRAM AUTHORIZED BY THE POTUS WAS NOT CRIMINAL LAW ENFORCEMENT, BUT NATIONAL DEFENSE (TO INTERCEPT COMMUNICATIONS BETWEEN AL QAEDA, OR ITS AFFILIATES, AND THEIR AGENTS INSIDE THE USA), THE PROGRAM IS BOTH LEGAL AND CONSTITUTIONAL.

END OF STORY.