Warrantless searches in the United States

Wartime warrantless searches in the United Sates have a history going back to George Washington - they are traditional.^[1] Government vulnerability to litigation and Cold War abuses led to reform legislation in the 1970's.^[2] Advancing technology caused the legislation to be seen as obsolete as early as 1985.^[3]

From before the founding to World War II

Attorney General Alberto Gonzales' testimony to Congress on February 6th, 2006 briefly surveys warrantless searches through to World War II: "This fact is amply borne out by history. This Nation has a long tradition of wartime enemy surveillance — a tradition that can be traced to George Washington, who made frequent and effective use of secret intelligence. One source of Washington’s intelligence was intercepted British mail. See Central Intelligence Agency, Intelligence in the War of Independence 31, 32 (1997). In fact, Washington himself proposed that one of his Generals “contrive a means of opening [British letters] without breaking the seals, take copies of the contents, and then let them go on.” Id. at 32 (“From that point on, Washington was privy to British intelligence pouches between New York and Canada.”). And for as long as electronic communications have existed, the United States has intercepted those communications during wartime, and done so, not surprisingly, without judicial warrants. In the Civil War, for example, telegraph wiretapping was common and provided important intelligence for both sides. In World War I, President Wilson authorized the military to intercept all telegraph, telephone, and cable communications into and out of the United States; he inferred the authority to do so from the Constitution and from a general congressional authorization to use military force that did not mention anything about such surveillance. See Exec. Order No. 2604 (28 April 1917). So too in World War II; the day after the attack on Pearl Harbor, President Roosevelt authorized the interception of all communications traffic into and out of the United States. The terrorist surveillance program, of course, is far more focused, since it involves the interception only of international communications that are linked to al Qaeda."^[4]

The Cold War

In 1975, the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (the Church Committee), a U.S. Senate committee chaired by Senator Frank Church (D-ID), investigated intelligence gathering by the federal government, including warrantless surveillance.^[5] The Committee report found the "Americans who violated no criminal law and represented no genuine threat to the 'national security' have been targeted, regardless of the stated predicate. In many cases, the implementation of wiretaps and bugs has also been fraught with procedural violations, even when the required procedures were meager, thus compounding the abuse. The inherently intrusive nature of electronic surveillance, moreover, has enabled the Government to generate vast amounts of information - unrelated to any legitimate governmental interest - about the personal and political lives of American citizens."^[6]

The "potential criminal liability of the National Security Agency and the Central Intelligence Agency for operations such as SHAMROCK (interception of all international cable traffic from 1945 to 1975) and MINARET (use of watchlists of U.S. dissidents and potential civil disturbers to provide intercept information to law enforcement agencies from 1969 to 1973)" helped persuade president Gerald Ford in 1976 to seek surveillance legislation, which was ultimately enacted as FISA in 1978.^[7]

In a foreward looking 1985 report, "Electronic Surveillance and Civil Liberties," the nonpartisan Congressional Office of Technology Assessment suggested legislation be considered for a surveillance oversight board.^[8] Congress disbanded this agency in 1995.^[9]

Post Cold War

On July 14, 1994 President Clinton's Deputy Attorney General and 9/11 Commission member Jamie Gorelick testified to the Senate Intelligence Committee that “The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes…and that the president may, as has been done, delegate this authority to the Attorney General.” This “inherent authority” was used to search the home of CIA traitor Aldrich Ames without a warrant. "It is important to understand," Gorelick continued, "that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities."^[10]

References

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