This column was originally published on Human Events on August 29, 2006.
The Fourth Amendment’s prohibition against unreasonable search and seizure is a critical protection for the civil liberties of Americans, and should not be lightly cast aside. But liberal/Left critics of President Bush’s War on Terror are quite wrong in suggesting to the American people that this Amendment requires a judicially issued search warrant before any search or seizure can be made.
The courts have upheld 30 different exceptions to the search warrant requirement of the Amendment. These include cases where the lives of officers or others are threatened, hot pursuit, border searches, school locker searches, or where emergency conditions exist.
The key word in the Fourth Amendment is unreasonable. That means under certain conditions a search or seizure without a warrant may be allowed.
But the ACLU has disdained all such notions of reasonableness in its now temporarily successful jihad against the international surveillance program of the NSA. Under this program, U.S. intelligence officials have monitored and wiretapped phone calls from overseas phone numbers believed to be used by terrorists to phone numbers in the U.S.
As President Bush has said, if Al Qaeda is calling someone in the United States, we want to know about it. Such phone calls may reveal not only terrorist plots, but terrorist cells within the U.S.
After this program was recently revealed by the New York Times, the ACLU has been concocting crackpot lawsuits to have it declared unconstitutional. They finally found an apparently crackpot judge, Anna Diggs Taylor in a Detroit District Court, who yesterday did exactly that.
Judge Taylor, appointed by Jimmy Carter in 1978, has a long history of hard left political activism and Democrat party partisanship. As long ago as 1964, she was a leader in Mississippi for the hard left National Lawyers Guild. She was married to far left Rep. Charles Diggs (D-MI).
Judge Taylor’s opinion wildly states that the President argues "he has been granted the inherent power to violate not only the laws of the Congress but the first and fourth amendments of the Constitution itself." She then takes a shot at the Bush family in saying, "There are no hereditary Kings in America…." She concludes that there is no power for the President’s NSA surveillance program in the Constitution, even though the Constitution extensively grants the President power over national defense, military affairs, and foreign policy.
ACLU Executive Director Anthony Romero hailed Taylor’s ruling calling it "another nail in the coffin in the Bush administration’s legal strategy in the war on terror." In this the ACLU is finally right about something.
Notice how a cabal of left wing extremists has worked together to now almost destroy a major weapon in the War on Terror. First the program is revealed by the increasingly far left New York Times. Then a phony legal war is pursued against the terrorist surveillance by the hard left ACLU. They manage to get the case before a nutcase lefty Federal judge in Detroit, and voila America loses a major weapon against terrorists trying to commit mass murder against us.
Here are the reasons why the NSA surveillance program is reasonable and constitutional even without judicially issued search warrants for each phone number tapped.
First, the surveillance is limited to phone calls from overseas, where U.S. constitutional protections do not apply, using phone numbers tied to terrorists and their activities, into this country. Those calls may well be to terrorist agents and cells in the U.S. and involve terrorist acts of mass murder against American citizens. Indeed, those terrorist acts could involve attacks involving poison gas or other chemical weapons, biological weapons, or even nuclear weapons. So the stakes are of the highest value.
Secondly, the surveillance appears to have been successful in stopping actual attacks against Americans. General Michael Hayden, former director of the National Security Agency and now deputy director of national intelligence, said last December, "This program has been successful in detecting and preventing attacks inside the United States." Indeed, wiretaps and intercepted communications were key to British intelligence stopping the terrorist plot to blow up ten airliners over the Atlantic earlier this month, and this precise NSA surveillance program may have been involved in assisting them.
Thirdly, the surveillance does not involve law enforcement or gathering evidence for criminal proceedings. It involves foreign intelligence gathering information on possible attacks against the American people by foreign combatants, to be used to stop those attacks. Indeed, phone recordings from the wiretaps would never be submitted in a court for prosecutions because then the methods and operation of the program would have to be publicly revealed. For this reason, no liberty is even restricted by the program other than the liberty to commit terrorist acts.
Fourthly, no one has uncovered a single instance of abuse of this program. The plaintiffs in the Detroit case could not prove that they had been wrongly harmed by the program, or even that they had been wiretapped. They were journalists, researchers, and lawyers who claimed that they needed to speak to terrorists abroad for valid reasons, but feared these terrorists would now not talk to them due to fear of the possible NSA surveillance. Because they could not show any actual harm, they did not even have standing to bring the suit, and it is likely to be thrown out on appeal for this reason alone.
Fifthly, the Foreign Intelligence Surveillance Act (FISA) set up special courts for investigators to obtain warrants for domestic surveillance of suspected foreign agents. It does not apply to foreign intelligence surveillance of enemy combatants operating overseas, or to communications to or from those combatants with someone inside the U.S. That comes within the military powers of the President, not domestic law enforcement. It is akin to battlefield intelligence, for which no warrants are needed.
Sixthly, obtaining a warrant even from a FISA court requires a voluminous filing to meet exacting standards. That would be an undue burden on intelligence agents trying to get information to stop an attack on the U.S. from foreign combatants overseas. The attack may be imminent, or the trail may be lost if we do not act immediately. Moreover, we may rightly not impose a probable cause standard before the activities of such foreign combatants are monitored for the essentially military activity of stopping an attack.
Every President since World War II has claimed the same power as President Bush and used warrantless wiretaps for foreign intelligence surveillance. In 1994, then Deputy Attorney General Jamie Gorelick defended President Clinton’s use of that power by saying, "Case law supports that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes."
Until yesterday, no U.S. court has ever ruled that the President did not have this authority. Indeed, the FISA court itself has said that all the "courts to have decided the issue held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." Judge Looney Tunes Taylor never addressed any of these precedents.
For all of these reasons, and others, this rootless decision itself born of extremist plotters, will be reversed on appeal.
Peter Ferrara is the Legal Director of the American Civil Rights Union