National Security and the Fourth Amendment

• Author: Herman Schwartz
• Pages: 1781-1782

Page 1781

The right to individual privacy and the preservation of national security have jarred against each other for centuries. "National security cases ? often reflect a convergence of First and FOURTH AMENDMENT values not present in cases of 'ordinary' crime," wrote Justice LEWIS F. POWELL for a unanimous Supreme Court in UNITED STATES V. UNITED STATES DISTRICT COURT (1972). The early English cases, such as the WILKES CASES (1763?1770), establishing the right to keep the government out of a home unless it has PROBABLE CAUSE and a judicially approved warrant to enter, arose from successful challenges by political dissidents to searches by royal officers hunting for seditious writings. Preventing such infringements on both personal security and free expression was the main purpose of the Fourth Amendment. Today, Presidents claim inherent executive power to break into homes, to make physical SEARCHES AND SEIZURES, to open mail, and to video-tape, WIRETAP, and bug?again in order to protect national security.

Where the surveillance is directed against national security threats by domestic groups or individuals, the Supreme Court has held that the President has no inherent executive power, and a warrant must first be obtained. The government's needs will not be presumed to outweigh the threats such a power poses for the rights of free speech and personal security; rather, a search against domestic threats must be approved in advance by a neutral magistrate. The Court did suggest that Congress could authorize less stringent procedures for domestic intelligence gathering than for crime detection, but so far Congress has not done so.

Foreign national security issues have been treated very differently. Courts have generally accepted the claim of inherent presidential power to use electronic surveillance, video-tapes, and physical entries against both foreigners and Americans in order to obtain foreign intelligence, without obtaining prior judicial approval. The power is justified on several grounds: the need for stealth, speed, and secrecy to counter foreign threats; the executive's superior experience and knowledge of FOREIGN AFFAIRS and the judiciary's relative lack of competence in such matters; and the executive's primacy in foreign affairs in the constitutional scheme. This power is limited to intelligence gathering, so that when the investigation becomes a criminal investigation and the warrantless interception is made...