Concur in Part, Dissent in Part

A commenter asked me what I thought about Orin Kerr’s analysis of the legality of Bush’s wiretaps. Kerr is a serious scholar, and I think his argument deserves a fair hearing; I also believe it is wrong, or more accurately wrong insofar as it implies that Bush’s actions should be upheld under the Fourth Amendment. To dispense with the easy half first, I of course think Kerr is correct that the warrantless wiretaps are not authorized by FISA. I think he’s too generous to this hackish, unserious argument, but since I’ve written a lot about it and we’ve ended up in the same place, there’s no reason to elaborate. I also agree that the arguments based on the Congressional authorization of force and the President’s Article II powers are even more transparently wrong. This brings is to to the final question: is Bush’s policy consistent with the Fourth Amendment?

It should be noted that Kerr does not exactly say that the searches should be upheld under the Fourth Amendment, but merely that there are “some pretty decent arguments” that the policy is not unconstitutional. I am not, however, persuaded. Kerr’s analysis rests on two precedents. The US v. US District Court–I’ve already discussed. Again, as Glenn Greenwald has discussed at length, the substantive arguments made by the case repudiate Bush’s position. It is true, as Kerr says, that Powell said that the case did not consider cases “involving a foreign power,” but 1)I don’t think that stateless terrorist groups fall into this exemption, and 2)even if they do, the opinion is merely noncommittal. It doesn’t say that such searches are constitutional, merely that the cases may be distinguishable. At best, the exception cited by Kerr means that the precedent can’t be cited against Bush; it’s not a precedent in favor of his policy.

The second case cited by Kerr is U.S. v. Ramsey. This case upheld a search of mail crossing the border based on “reasonable cause to suspect” rather than the “probable cause” required by the Fourth Amendment. Kerr argued that this case should be directly applied to wireless communications. This is highly problematic, however. As iocaste points out, the fact that the case involved physical objects was crucial to limiting the potential of the policy to violate First and Fourth Amendment rights. As Justice Rehnquist explained the facts:

Two days after this arrest of Bailey and Ward, Inspector George Kallnischkies, a United States customs officer in New York City, without any knowledge of the foregoing events, inspecting a sack of incoming international mail from Thailand, spotted eight envelopes that were bulky and which he believed might contain merchandise. The envelopes, all of which appeared to him to have been typed on the same typewriter, were addressed to four different locations in the Washington, D.C., area. Inspector Kallnischkies, based on the fact that the letters were from Thailand, a known source of narcotics, and were “rather bulky,” suspected that the envelopes might contain merchandise or contraband rather than correspondence. He took the letters to an examining area in the post office, and felt one of the letters: It “felt like there was something in there, in the envelope. It was not just plain paper that the envelope is supposed to contain.” He weighed one of the envelopes, and found it weighed 42 grams, some three to six times the normal weight of an airmail letter

The fact that snail mail has physical characteristics allows government officials to make distinctions between ordinary correspondence and mail that is likely to contain contraband. T his is not true of phone communications, and as such the precedent isn’t directly applicable; the effects of Bush’s policy are far broader. There’s an additional point to be made here as well. In Ramsey, the executive branch was applying a standard created by Congress. In the current case–as Kerr acknowledges–the executive branch is acting against a policy created by Congress. I’ll have a follow-up post about this for people who aren’t familiar with it, but when it comes to the question of the deference that should be accorded to the executive in cases of national emergency the President is generally assumed to have the greatest power when acting with Congress, and the least when acting against it. The fact that Congress has not given the President the power to conduct the searches he has conducted should also be part of the consideration when weighing the President’s powers against the prohibitions of the Fourth Amendment.

So, with respect to the constitutional argument, we have a policy that contravenes the literal language of the Fourth Amendment, and there isn’t a precedent that directly supports the policy. At best, one can argue that the precedents allow an exception to be made in certain national security cases. And this is true enough: no right is absolute, and if there was a truly compelling national security reason, we could choose to create one in this case. Which brings us back to the question: how compelling is the national security justification? And I return to my original answer: it’s not remotely compelling enough to justify creating a new exception to the Fourth Amendment. Consider the hypothetical developed by Bill Kristol in attempt to justify the policy:

A U.S. president has just received word that American counterterrorist operatives have captured a senior al Qaeda operative in Pakistan. Among his possessions are a couple of cell phones — phones that contain several American phone numbers. In the wake of Sept. 11, 2001, what’s a president to do?

If the president were taking the advice offered by some politicians and pundits in recent days, he would order the attorney general to go to the Foreign Intelligence Surveillance Court. The attorney general would ask that panel of federal judges for a warrant under the Foreign Intelligence Surveillance Act (FISA) to begin eavesdropping on those telephone numbers, to determine whether any individual associated with those numbers was involved in terrorist activities.

This is, of course, dishonest. What in fact the current law in fact permits him to do is to go ahead with the warrant, and then submit an application within 72 hours. And, again, given the low standards used by the FISA court Kristol’s claim that there’s a significant likelihood that the calls of numbers discovered on the cell of a known terrorist couldn’t be monitored is risible. I am far more concerned that the standards of the FISA courts are too perfunctory; to argue that they’re too stringent is an exceptionally implausible assertion with no evidence.

So, I remain where I started. I don’t believe in a de minimis standard for interpreting the Fourth Amendment, even when the President claims “national security” justifications. Congress has set up a viable alternate procedure, and has determined that there needs to be safeguards in place, further suggests that the President should not be given unchecked power in this area. And I don’t think the government and its supporters have come remotely close to justifying an exception. But I also think that the Fourth Amendment argument is moot, because the President lacks any authority to conduct these searches in the first place.