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
This analysis was for the purpose of deciding that FISA searches are reasonable within the context of the Fourth Amendment to the Constitution, but the FIS Court of Review made no attempt to use this analysis as the basis for a decision that the President could engage in electronic surveillance outside of the boundaries of FISA, and the FIS Court of Review did not attempt to establish the constitutional boundaries of the President's alleged inherent authority to conduct warrantless searches to obtain foreign intelligence. Within the framework of this discussion, the FIS Court of Review could have asked whether the USA PATRIOT Act amplifies the authority of the President to use an appropriately tailored roadblock to thwart an imminent terrorist attack, and the answer would have been just as irrelevant to the actual determination made by the FIS Court of Review.
The legality of the Terrorist Surveillance Program was not under consideration by the FIS Court of Review, and although the FIS Court of Review went out of its way to mention the alleged inherent authority of the President to engage in electronic surveillance without warrants, it must be noted that the FIS Court of Review also recognized a significant amount of ambiguity in this area of the law:
Recent testimony before the Joint Intelligence Committee amply demonstrates that the Truong line is a very difficult one to administer. Indeed, it was suggested that the FISA court requirements based on Truong may well have contributed, whether correctly understood or not, to the FBI missing opportunities to anticipate the September 11, 2001 attacks.29 That is not to say that we should be prepared to jettison Fourth Amendment requirements in the interest of national security. Rather, assuming arguendo that FISA orders are not Fourth Amendment warrants, the question becomes, are the searches constitutionally reasonable. And in judging reasonableness, the instability of the Truong line is a relevant consideration.
The Fourth Circuit recognized that the Supreme Court had never considered the constitutionality of warrantless government searches for foreign intelligence reasons, but concluded the analytic framework the Supreme Court adopted in Keith–in the case of domestic intelligence surveillance–pointed the way to the line the Fourth Circuit drew. The Court in Keith had, indeed, balanced the government’s interest against individual privacy interests, which is undoubtedly the key to this issue as well; but we think the Truong court misconceived the government’s interest and, moreover, did not draw a more appropriate distinction that Keith at least suggested. That is the line drawn in the original FISA statute itself between ordinary crimes and foreign intelligence crimes.
It will be recalled that Keith carefully avoided the issue of a warrantless foreign intelligence search: “We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.” 407 U.S. at 321- 22.30 But in indicating that a somewhat more relaxed warrant could suffice in the domestic intelligence situation, the court drew a distinction between the crime involved in that case, which posed a threat to national security, and “ordinary crime.” Id. at 322. It pointed out that “the focus of domestic surveillance may be less precise than that directed against more conventional types of crimes.” Id.
Reducing deaths caused by drunk drivers is a laudable goal, and it is argued that the Supreme Court decision in the case of MICHIGAN DEPT of STATE POLICE v. SITZ (1990) sanctioned a relatively non-intrusive procedure to assist with this goal. However, highway checkpoints are an extremely ineffective method of keeping drunk drivers off the road when measured against the pervasiveness of the problem, and it is disturbing that the Supreme Court allowed rights protected by the Fourth Amendment to be violated for such an ineffective method of safeguarding the public. Because the Supreme Court decision in the case of MICHIGAN DEPT of STATE POLICE v. SITZ approved of the use of highway checkpoints (with guidelines governing checkpoint operations, site selection, and publicity) to screen for drunk drivers, some think this rationale should apply to electronic surveillance to screen for terrorists, but a scenario that would be analogous to the Terrorist Surveillance Program would involve police checkpoints on all highways throughout every day.
Although the FIS Court of Review decision issued on November 18, 2002 is very deferential to the President, and although the FIS Court of Review lakes it for granted that the President has the inherent authority to conduct warrantless searches to obtain foreign intelligence, the FIS Court of Review did not attempt to define the extent to which the President may exercise this alleged inherent authority. If the FIS Court of Review had decided that issue in favor of the President, it would have eliminated the need for the FIS Court of Review to decide whether the Foreign Intelligence Surveillance Court (FISC) had interpreted FISA correctly. Instead, the FIS Court of Review determined the following:
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.
If FISA is only an optional method for the government to obtain foreign intelligence, the FIS Court of Review did not need to concern itself with the issue of whether the government violated the provisions of FISA. Mr. Turner makes the point that the the duties of Congress as outlined in Article I of the Constitution:
"were viewed as exceptions taken from the general vesting of 'executive power' in the president, and thus were uniformly held to be subject to a narrow construction. And none of them even arguably gives Congress power to usurp the President’s 'executive' power to collect foreign intelligence even in peacetime."
This concept of executive power is quite extreme, but FISA is a means to allow the executive to obtain foreign intelligence in a manner that does not trample on the Fourth Amendment to the Constitution. Because the President does not have the authority to act in violation of the Constitution, FISA does not usurp the President's authority.
BORDER SEARCHES
Orin Kerr, Associate Professor of Law at George Washington University, has stated that the Terrorist Surveillance Program may have been legal due to the exception to Fourth Amendment protection that applies to searches and seizures at our international borders, but this logic falls apart with reference to FISA. Most court case decisions regarding searches at the borders (including at airports) have relied in part on the argument that a person crossing the border does not have a reasonable expectation of privacy, and that the mere act of crossing the border creates an exception to the Fourth Amendment requirement that there must be probable cause before a search can be reasonable. This has led to a series of rulings that upheld physical searches and seizures without warrants under circumstances that would not be considered reasonable if the Fourth Amendment standard were under consideration. The basis of the exception to the protection of the Fourth Amendment against unreasonable searches and seizures was articulated by Supreme Court Justice William Rehnquist in the case of UNITED STATES v. RAMSEY (1977):
That searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration. The Congress which proposed the Bill of Rights, including the Fourth Amendment, to the state legislatures on September 25, 1789, 1 Stat. 97, had, some two months prior to that proposal, enacted the first customs statute, Act of July 31, 1789, c. 5, 1 Stat. 29. Section 24 of this statute granted customs officials "full power and authority" to enter and search "any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed . . . ."
This acknowledgment of plenary customs power was differentiated from the more limited power to enter and search "any particular dwelling-house, store, building, or other place . . ." where a warrant upon "cause to suspect" was required. 12 The historical importance of the [431 U.S. 606, 617] enactment of this customs statute by the same Congress which proposed the Fourth Amendment is, we think, manifest. This Court so concluded almost a century ago. In Boyd v. United States, 116 U.S. 616, 623 (1886), this Court observed:
Next Page 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10
(Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).
