The Constitutionality of Warrantless Wiretaps
[Guest post by DRJ]
There’s an interesting NY Times’ article by Phillip Bobbitt, a Columbia Law School professor and former NSC member from 1998-1999 during the Clinton Administration, on warrantless wiretaps. Here are some highlights:
On the reasoning and validity of warrantless wiretaps –
“Warrants, which originate in the criminal justice paradigm, provide a useful standard for surveillance designed to prove guilt, not to learn the identity of people who may be planning atrocities.
A statutory fix that simply waived the warrant requirement when both parties to a conversation were foreign would scarcely address this problem.Technology is changing the nature of the threat, not merely the mechanics of collection. The statutory change is unnecessary, I suppose, if you believe that there is in fact no real threat, that it’s all hype by the White House to expand its powers — presumably to some other end — and that all we have to fear is fear itself. Doubtless, some people do believe this. If the editorialists and columnists in the news media make this assumption, they should frankly say so (and hold their breath until the next attack).”
On the Constitutional dangers (or lack thereof) posed by warrantless surveillance –
“Furthermore, there is an unstated assumption that warrantless surveillance is lawless surveillance. There is, however, judicial precedent for warrantless searches, even if you can’t tell this from the public debate. The president of the American Bar Association objected to the new statute by sarcastically observing, “The last time I checked, the Fourth Amendment is still in the Bill of Rights,” which he doubtless believed to be a withering salvo.
In fact, there are many instances in which warrantless surveillance has been held to be permissible under the Fourth Amendment. Searches in public schools require neither warrants nor a showing of probable cause. Government offices can be searched for evidence of work-related misconduct without warrants. So can searches conducted at the border, or searches undertaken as a condition of parole. Searches have been upheld in the absence of a warrant where there is no legitimate expectation of privacy. The Clinton administration conducted a warrantless search — lawfully — when it was trying to determine what the spy Aldrich Ames was up to. The day after Pearl Harbor, President Roosevelt authorized the interception of all communications traffic into and out of the United States.”
On the public, the ACLU, Bush (Bobbitt calls Bush the Great Miscommunicator, which I think is pretty funny), and the current leaders of the Bush Administration NSC –
“Why would we be troubled in any case when a politician in a democracy votes the way he thinks the people want? Polls show that the American public is not as anti-security-minded as the American Civil Liberties Union. That’s why we need an A.C.L.U., I imagine.
One good reason not to want popular politics to guide such decisions arises when the public is not well-informed. Partly this can be laid at the door of the incumbent president, the Great Miscommunicator. But mainly it lies with those people who don’t bother giving reasons, don’t explain or give arguments, who prefer to traduce the people with whom they disagree by attacks on their characters, which are presumed to be insufficiently stalwart.
In Robert M. Gates, the defense secretary, Mike McConnell, the director of national intelligence, and Gen. Michael V. Hayden, the director of central intelligence, we have about as good a team as it is possible to imagine. Most people in Congress know that. Why not assume they are proposing a solution to a real problem? Developments in technology are forcing a long-overdue statutory change — and those developments will be with us long after the politics of the moment have passed.”
Articles like this will be hard for liberals and conservatives to disregard, in part because Bobbitt fires salvos at everyone but especially because his support for the current laws and policies crosses Party lines – a rare occurrence these days.
Excellent and fascinating analysis. Thanks for posting this, DRJ.
Paul (09c70a) — 8/26/2007 @ 2:08 pmHe just lost his seat at the Liberal table. Watch him get savaged.
JD (815fda) — 8/26/2007 @ 6:25 pm“The day after Pearl Harbor, President Roosevelt authorized the interception of all communications traffic into and out of the United States.”
Actually we had been intercepting Japanese diplomatic communications from Tokyo to their embassy in Washington since 1939 in violation of the Federal Communications Act of 1934. Chief of Staff Gen. George C. Marshall authorized it, a major policy shift from his predecessor Gen. Malin Craig. Without it, we would not have broken the high level Purple Code, which among other things gave us the text of Japan’s intention to declare war on the US before the Japanese actually delivered it to Cordell Hull.
In Hawaii, a US territory and covered by the same prohibition, we obtained copies of encrypted communications to and from the Japanese consulate. This was done through the personal efforts of David Sarnoff, head of RCA. But only one-third of the communications were obtained, because the other two cable companies refused the US Navy’s requests for copies. The cables contained regular reports to Tokyo on the dispostion of our fleet at Pearl Harbor.
Roosevelt knew we were doing the intercepts. He was reading the decrypts. But unlike present Democrats, he knew our enemies were serious about attacking us.
Corky Boyd (a8cc75) — 8/26/2007 @ 6:46 pm“Roosevelt knew we were doing the intercepts. He was reading the decrypts. But unlike present Democrats, he knew our enemies were serious about attacking us.”
He also was doing it at a time when the fourth amendment treatment of wiretaps was different.
ak (10527e) — 8/26/2007 @ 7:34 pmak
There was no wiretapping involved. It was interception of wireless communications. It violated the Communications Act, and the people involved knew it. This from David Kahn’s The Codebreakers, the definitve work on crypto intelligence, published in 1976:
“Section 605 of the Federal Communications Act of 1934, which prohibits wiretaps, also prohibits the interception of messages between foreign countries and the United States and territories. General Malin Craig, Chief of Staff from 1937 and 1939, was acutely aware of this, and his attitude dampened efforts to intercept the Japanese diplomatic messages coming into America. But after General George C. Marshall succeeded to Craig’s post, the exigencies of national defense relegated that problem in his mind to the status of a legalistic quibble. The crypanlytic agencies pressed ahead in their intercept programs. The extreme secrecy in which they were cloaked helped them avoid detection. They concentrated on radio messages, since the cable companies, fully cognizant of the legal restrictions, in general refused to turn over any foreign communications to them.”
There was no FISA Court then and the specific reason it was established was to provide Comint cleared judges who could evaluate cases to keep the information out of the public domain. Even the hint we were intercepting encrypted Japanese diplomatic communications would have compromised this extremely sensitive program.
Corky Boyd (a8cc75) — 8/26/2007 @ 10:00 pm[…] 27th, 2007 by scrubone Patterico has a good post on Warrant-less […]
Stuff « Something should go here, maybe later. (a61c4e) — 8/27/2007 @ 12:58 amI think the Clintonistas with the help of the MSM are too smart for the conservatives. Everything is political. This warantless wiretapping (WW)question was just another Democratic ploy.
Moose (dcacef) — 8/27/2007 @ 5:38 amNow that Bush’s term in office is coming to an end, the Clintonistas now say hey”WW is legal, we used it during Bill’s tenure, and guess what Hillary is in town”.
Here’s another example of a permissible warrantless search (via commenter and blogger Paul S.):
Excellent point.
DRJ (bfe07e) — 8/27/2007 @ 12:47 pmIt’s a fine op-ed. Alas, that you should have to describe Prof. Bobbitt as a professor at Columbia Law School, instead of at our alma mater where he served for so many years. It was only as a result of this op-ed that I learned that he moved to Columbia in July. “The Bouncing Phil-Bobb” was one of my favorites at UT-Law.
Beldar (1b82e4) — 8/27/2007 @ 3:31 pmBeldar,
I share your pain. You don’t know how many times I edited the post to add “former UT Law professor” with a link to his faculty profile. However, the folks here are tired of my preoccupation with Texas, so I declined.
DRJ (8b9d41) — 8/27/2007 @ 3:36 pmQuestion for all you conservative lawyers at this site: are you in in agreeement with Bobbitt? If so where the hell were you the last 2 years after the NYT did a hatchet job on the administration. Why didn’t you sages just pound and pound Bobbitts points home back then.
Moose (dcacef) — 8/28/2007 @ 2:49 pmMoose, some of us did. In several forums. Where were you?
Robin Roberts (6c18fd) — 8/28/2007 @ 3:13 pmwhere the hell were you the last 2 years after the NYT did a hatchet job on the administration
The NYT editorial board and story writers were carved up like a Thanksgiving turkey on many of the most prominent blogs for making that ill-advised reckless decision, Moose.
Try to keep up.
Paul (09c70a) — 8/28/2007 @ 4:53 pmDid any of you write editorials in the major newspapers? Did any of you write articles in law journals covering this issue?
I bet if you polled the public a majority would say WW is illegal.
Moose (dcacef) — 8/29/2007 @ 4:39 amAlso, why aren’t you pounding Bobbitt on being 2 years late. He is your old professor, ask him why he didn’t say anything sooner.
Don’t be afraid, you’ve graduated from law school :-).
I think that carved up turkey is still gobbling.
Moose,
Your last comment shows that your point is to make waves, not valid points.
Philip Bobbitt has been writing on this subject for some time and previously served as the “director for Intelligence, senior director for Critical Infrastructure and senior director for Strategic Planning at the National Security Council.” He doesn’t need you or me to lecture him on national security but I’m not afraid to discuss this subject with him. Professor Bobbitt and I are the same age, and he was never my professor.
DRJ (bfe07e) — 8/29/2007 @ 5:23 amMoose, actually I believe that the issue has been polled and surveillance of terrorist suspects polls pretty high.
Robin Roberts (6c18fd) — 8/29/2007 @ 5:56 amDRJ,
Moose (dcacef) — 8/29/2007 @ 12:43 pmYou gotta be kidding regarding that 06 editorial by Bobbitt :
“…and an overaggressive executive branch seemingly heedless of the law…”
“…This is not to play down the damage done to our war aims by the executive branch’s repeated appearance of an indifference to law. A president does have an obligation to assess the constitutionality of statutes, but when he secretly decides a measure is unconstitutional and neglects to say so (much less why), he undermines the very system of public consent for which we are fighting….”
But now it’s okay, Bill used it ,and Hillary is in town. He is a Clintonista and you conservative lawyers are being politically duped.
That turkey is still gobbling and you fools think it is dead.
You guys must have a strong fraternity.
Moose,
Prof. Bobbitt is willing to discuss how we go about fighting terrorism and that’s a rare commodity in Washington DC today. I don’t have to agree with everything he says to appreciate that he views terrorism as a serious problem that should be discussed. A similar example is Senator Joe Lieberman, who is not a practicing lawyer although he may have a law degree. I could care less whether someone is a lawyer – I care whether what they say makes sense.
DRJ (bfe07e) — 8/29/2007 @ 1:02 pmThat turkey is still gobbling and you fools think it is dead.
You guys must have a strong fraternity.
So, what have YOU done about it, Moose?
Besides bellyache about it two years after the fact?
Paul (09c70a) — 8/29/2007 @ 1:50 pmHey Moose,
Here’s a bunch of links to lawyers, among others, who wrote about the NYT debacle on their blogs, all of it in condemnation.
That’s right, lawyers.
And to make sure you don’t ‘miss’ it, here is the Washington Post’s first lead editorial after the NYT hatchet job: Thank You for Wiretapping.
Now get to it.
Paul (09c70a) — 8/29/2007 @ 2:25 pmWow, a touchy group. I read some of the referenced material. Very analytical and not forceful.You guys are missing the point.
Moose (dcacef) — 8/30/2007 @ 11:20 amThis guy Bobbitt has just pulled a sleeze ball act. Purely politics and you guys should expose him for it even if he was your professor or is a lawyer. This is not about WW being legal, this is about political maneuvering.
Maybe I am a grouchy old conservative also.
I just got a chance to read Philip’s article and found it very interesting and a bit of a departure from his past position where he opined that the current administration was trampling the rule of law. I have a great deal of respect for him, despite the fact that he supported the war in Iraq, even after finding out that they had no WMDs.
His position on the fourth amendment is particularly surprising. His examples all suggest that we have no expectation of privacy in out computer communications.. Yet some courts have specifically found that we do.
Had they not neglected to mention his new book I would suspect that it was a marketing ploy. Philip once said that the best way to make a fortune of a book was to get it banned. BTW, he is only visiting at Columbia.
sally atticum (f4620c) — 9/9/2007 @ 3:35 pmThere are differences between statutory protections and constitutional ones in this area.
Robin Roberts (6c18fd) — 9/9/2007 @ 3:42 pm