Al Gore: NSA Surveillance Violates The Constitution Updated

[treestar]

45. Let's see what the courts think

Everyone has an opinion.

Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment. See United States v. Truong Dinh Hung, 629 F.2d 908, 912-14 (4th Cir. 1980), cert. denied, 454 U.S. 1144, 71 L. Ed. 2d 296, 102 S. Ct. 1004 (1982); United States v. Buck, 548 F.2d 871, 875 (9th Cir.), cert. denied, 434 U.S. 890, 54 L. Ed. 2d 175, 98 S. Ct. 263 (1977); United States v. Butenko, 494 F.2d 593, 605 (3d Cir.) (en banc), cert. denied, 419 U.S. 881, 42 L. Ed. 2d 121, 95 S. Ct. 147 (1974); United States v. Brown, 484 F.2d 418, 426 (5th Cir. 1973), cert. denied, 415 U.S. 960, 39 L. Ed. 2d 575, 94 S. Ct. 1490 (1974); but see Zweibon v. Mitchell, 170 U.S. App. D.C. 1, 516 F.2d 594, 633-651 (D.C. Cir. 1975), (dictum), cert. denied, 425 U.S. 944, 48 L. Ed. 2d 187, 96 S. Ct. 1685 (1976). The Supreme Court specifically declined to address this issue in United States v. United States District Court [Keith, J.], 407 U.S. 297, 308, 321-22, 32 L. Ed. 2d 752, 92 S. Ct. 2125 (1972) (hereinafter referred to as " Keith &quot , but it had made clear that the requirements of the Fourth Amendment may change when differing governmental interests are at stake, see Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967), and it observed in Keith that the governmental interests presented in national security investigations differ substantially from those presented in traditional criminal investigations. 407 U.S. at 321-324.


Against this background, Congress passed FISA to settle what it believed to be the unresolved question of the applicability of the Fourth Amendment warrant requirement to electronic surveillance for foreign intelligence purposes, and to "remove any doubt as to the lawfulness of such surveillance." H.R. Rep. 1283, pt. I, 95th Cong., 2d Sess. 25 (1978) ("House Report&quot . FISA reflects both Congress's "legislative judgment" that the court orders and other procedural safeguards laid out in the Act "are necessary to insure that electronic surveillance by the U.S. Government within this country conforms to the fundamental principles of the fourth amendment," S. Rep. No. 701, 95th Cong., 2d Sess. 13, reprinted in 1978 U.S. Code Cong. & Ad. News 3973, 3982 ("Senate Report 95-701&quot , and its attempt to fashion a "secure framework by which the Executive Branch may conduct legitimate electronic surveillance for foreign intelligence purposes within the context of this Nation's commitment to privacy and individual rights." S. Rep. No. 604, 95th Cong., 1st Sess. 15, reprinted in 1978 U.S. Code Cong. & Ad. News 3904, 3916 ("Senate Report 95-604&quot . In constructing this framework, Congress gave close scrutiny to departures from those Fourth Amendment doctrines applicable in the criminal-investigation context in order

[89] to ensure that the procedures established in [FISA] are reasonable in relation to legitimate foreign counterintelligence requirements and the protected rights of individuals. Their reasonableness depends, in part, upon an assessment of the difficulties of investigating activities planned, directed, and supported from abroad by foreign intelligence services and foreign-based terrorist groups. The differences between ordinary criminal investigations to gather evidence of specific crimes and foreign counterintelligence investigations to uncover and monitor clandestine activities have been taken into account. Other factors include the international responsibilities of the United States, the duties of the Federal Government to the States in matters involving foreign terrorism, and the need to maintain the secrecy of lawful counterintelligence sources and methods.

http://biotech.law.lsu.edu/cases/nat-sec/duggan.htm