Last week, the big news story was that shortly after the attacks of 9/11/01, the President “secretly authorized” the National Security Agency to eavesdrop on international phone calls and e-mail messages in which one of the participants was in the United States — without the court-approved warrants “ordinarily required for domestic spying”; that is, for eavesdrop on communications conducted wholly within the United States.*
The president explained the policy at a press conference, disputing the fact that the order was “secret,” at least from Congress:
So, consistent with U.S. law and the Constitution, I authorized the interception of international communications of people with known links to al Qaeda and related terrorist organizations. This program is carefully reviewed approximately every 45 days to ensure it is being used properly. Leaders in the United States Congress have been briefed more than a dozen times on this program. And it has been effective in disrupting the enemy, while safeguarding our civil liberties.
U.S. Senator Carl Levin (D-MI) had something interesting to say about this:
He cites the law which authorized the use of force in Iraq [sic -- he must have meant the post-9/11/01 use-of-force resolution which did not mention Iraq specifically --DR] as the legal basis for his wiretapping and surveillance program. What he does not do is tell us where in that resolution authorizing force in Iraq does he see that authority. We can’t find any. Where in the Constitution — which not only has an Article II creating an executive branch but has a Bill of Rights protecting the privacy of Americans — where does he find in the Constitution the authority to tap the wires and the phones of American citizens without any court oversight?
I am tempted to answer: “Right after the sentence in the Constitution that guarantees the right to an abortion.” After all, Carl Levin is a well-known supporter of abortion as a Constitutional right. I’d love to hear him admit that there is no more explicit mention of abortion in the Constitution than there is of wiretapping suspected terrorists — a position that the so-called “strict constructionist” school of jurisprudence has been making for a long time.
Ah, but you say — no one ever claimed the right to an abortion was explicitly mentioned in the Constitution. Even the Supreme Court Justice Harry Blackmun, writing the majority opinion in Roe vs. Wade, explicitly admits that, “The Constitution does not explicitly mention any right of privacy,” let alone abortion. Instead, he finds the right to an abortion by reference to the “penumbras of the Bill of Rights,” or as Justice William Douglass put it in Griswold vs. Connecticut, “penumbras, formed by emanations from those guarantees that help give them life and substance.”
So, there you have it, Senator Levin: The president’s authority to wiretap suspected al-Qaeda operatives in the United States comes from the “penumbras, formed by emanations” from the use-of-force resolution passed on September 14, 2001.
(UPDATE, 12/28/05: Alex Tabarrok makes a similar point.)
Seriously, though: My real question is why anyone is surprised by this. A prominent former FBI agent said when he was in the FBI (mid-1960s), it was standard practice for the FBI to conduct warrantless searches. The Clinton Administration’s Project Echelon intercepted so much it’s been called an “information vacuum cleaner.”
Why is all this legal? Because the Supreme Court said it’s legal!
And, the Supreme Court said it’s legal in a decision that has been the very foundation of the liberal view of due process. See, in
Weeks vs. U.S. (1914) (applied to the states in Mapp vs. Ohio (1961)), the Supreme Court decided that the “penalty” for an illegal search was the that evidence obtained through the illegal search could not be used against a defendant in court. This is called the “exclusionary rule.” As California Supreme Court Justice Stanley Mosk noted:
“The two-fold purpose of the exclusionary rule is to deter law enforcement officers from engaging in unconstitutional searches and seizures by removing their incentive to do so, and to relieve the courts from being compelled to participate in such illegal conduct.
There are two problems with this, and serious problem, and a really serious problem: First, freeing a(n otherwise) guilty person because of an illegal search does not really penalize law enforcement officers; it penalizes the general population, who are now subject to suffer future crimes by that individual, and a reduced deterrent to crime for other individuals; it also penalized the victim, who is denied justice. Law enforcement officers are not, generally speaking, “paid by the conviction”; the suffer no more than any other citizen when a criminal goes free. Thus, there is no reason to expect that the exclusionary rule actually deters law enforcement officers from conducting illegal searches at all. The exclusionary rule thus fails to achieve the purpose for which it is intended.
More seriously, by in effect limiting the “penalty” for an illegal search to the exclusion of evidence from a criminal trial, the exclusionary rule effectively gives law enforcement a free hand to conduct as many illegal searches and wiretaps as they want, so long as they do not use the evidence so obtained in a criminal trial. This is why J. Edgar Hoover’s FBI could conduct illegal searches wiretaps all over the place with impunity — if anyone discovered the search and complained, they’d just say, “Fine, we won’t use it against you in court.”** This is fine if you’re guilty of something — but no consolation at all if you’re innocent. The FBI could put a hidden camera in your shower or your bedroom, and if you never do anything illegal, you would have absolutely no recourse. The exclusionary rule effectively superseded the common-law criminal and civil penalties for illegal searches.
In effect, the exclusionary rule serves to narrowly construe the fourth amendment privacy protections to apply only to the guilty. If you are guilty, you will be protected from illegally-obtained evidence from being used against you in court. But if you are innocent — whether accused of a crime or not — they can search and wiretap you as much as they want, and as long as you don’t commit a crime, there’s nothing you can do to stop them.
So to answer Senator Levin’s question: Even if the authority to wiretap al-Qaeda isn’t in the war resolution, and isn’t even in the “penumbras, formed by emanations” of the war resolution or the President’s authority as Commander-in-Chief — in short, even if the wiretaps are actually illegal — the President can go ahead and do them anyway.
And his ability to do so comes from the very capstone of liberal jurisprudence.
*Normally, there is division of labor in eavesdropping — the NSA listens to stuff outside the United States, and the FBI listens to stuff inside the United States. I suspect this is due to the fact that the NSA was set up to protect us from foreign threats and the FBI was originally set up to investigate federal crimes within the U.S.
** Actually, law enforcement could effectively, if not strictly legally, use the information indirectly to prosecute criminals. For example, if they heard through a wiretap that a someone was about to commit a crime at a particular time and place, or had hid the loot someplace, they could go there and witness the crime in the open, or “find” the loot. Though they found out where it was through an illegal wiretap, the actual information obtained in the wiretap did not always have to be presented in court for it to be useful. When it didn’t, the exclusionary rule didn’t even protect guilty people. The only protection it provided was when some evidence was available only illegally, and that evidence was necessary either to convict, or to obtain a legitimate warrant.