Is The NSA Cross-Border Wiretapping Reasonable?

Contrary to what many apparently believe warrantless searches are not unconsitutional. The Fourth Amendment (here) reads,

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The Constitutional question underlying the President's decision to authorize the National Security Agency to secretly monitor cross-border electronic communications therefore is not whether a warrant was issued but whether the monitoring was reasonable. Judicial oversight is not required by the constitution before the executive does some kind of search of a person, place or thing.

This does not mean that the judiciary never gets involved in warrantless searches. The courts get involved after the fact when the government tries to use the evidence obtained from the search in a criminal proceeding.

For instance, if a person is arrested as a result of the secret monitoring, that person might be able to challenge the evidence obtained as a result of the tap in court. The question for that person would be whether the particular wiretap was reasonable. The court system would give the accused an opportunity to vindicate his own personal right of privacy. If a court determined that the tap violated the accused's reasonable expectation of privacy, the evidence from the wiretap could be suppressed. But if the court decided that the tap was reasonable and didn't require issuance of a warrant, the evidence could be used in a criminal trial.

But there are some instances where the wiretap would not be subject to judicial scrutiny of any kind.

If the tapped person is not arrested and the information derived from the tap leads to the arrest of somebody else, that somebody else would not be able to challenge the secret tap, because the tap didn't affect his own reasonable expectation of privacy.

Or if nobody is arrested as a result of the tap and the information obtained from the surveillance is never used, there would be no need for a judge to review the reasonableness of the monitoring.

For the individual subject to a particular search the question concerns whether the particular surveillance was reasonable. Given the state of the law on the President's power to do this kind of monitoring during a war (see here, here, here, here, for arguments on that issue) and the reduced expectation of privacy an individual has in making an international communication, it is possible that the surveillance would be constitutional.

And while some may believe that we are not in a war, we are. Arguably we are in a congressionally declared war against Al Qaeda. The authorization to use force against Al Qaeda may not have been termed a formal declaration of war, but the Constitution does not prescribe what the formal requirements are for a declaration of war. Arguably a Congressional vote that authorizes the President to use military force against a foreign enemy is a declaration of war. That would include the authorization to use force against Iraq.

A broader constitutional question for the Congress and the voters, is whether the NSA monitoring program is reasonable. The question then is whether it is reasonable for the President to have authorized the NSA to do this monitoring on the scale it was done, in secret, while notifying some Congressmembers but under an oath of secrecy, which it would be criminal to violate, in a time of war. That's an entirely different question, that under our system, would not be up to the courts to decide.

Congress could address it through legislation that makes clear its view that this kind of surveillance is unconstitutional and that outlaws it. Congress could also address it through impeachment proceedings against the President on the ground that it believes the President violated the Constitution. Neither of these events is likely to happen given the partisan makeup of the Congress.

Thus, it falls to the voters to decide whether they view the President's actions as unconstitutional. If the voters believe the President has violated the constitution, it is up to them to vote into office Congressmembers who would promise to go after the President for this and impeach him or who would promise to outlaw this kind of surveillance or to bring it under some other kind of independent oversight.

When one remembers that the reason the jihadists were able to attack us on 9/11 was almost entirely because of a failure of intelligence, it seems pretty unlikely that either the Congress or the voters will go after the President very strongly on this issue. There will be a lot of hand waving and shouting during Congressional hearings but ultimately nothing much will come of it. The only real consequence is that whereas before the New York Times spilled the beans on this in order to kill the Patriot Act the jihadists may have suspected that the US government was monitoring their calls into and out of America, now they know it for certain. That can't be good for the good guys in this war.

-tdr