Tuesday, May 22, 2012

Fourth Amendment v. National Security

This blog tends to focus on the usual police domestic  Fourth Amendment issues.  However, there are lots of issues out there in the area of national security. 

In 2008,  an amendment to the Foreign Intelligence Surveillance Act allowed intelligence agencies to eavesdrop on overseas communications,(including e-mails, calls) more broadly and with less judicial oversight than in the past..  Now, the U.S. government does not have to submit (to a special judge) an  individualized application to monitor a non-American overseas.  The U.S. attorney general and  director of national intelligence can ask for mass surveillance authorizations from the judge. This is basically a warrant procedure except that the usual 4th Amendment requirement  of “particularly describing” is clearly not satisfied.  There are also issues about the applicability of the Fourth Amendment in at least some of the situations.
The ACLU sued the attorney general and the director of national intelligence.  The case is slowly making its way through the judicial system.  The Supreme Court has agreed to hear whether the Plaintiffs have standing (legal authority) to challenge the act. They will not decide on the constitutionality of the law--at least not yet.  The name of the case is Clapper v. Amnesty International U.S.A..


  1. This falls into the category of what's considered reasonable. Screening operations like Border Patrol checkpoints are an expected intrusion when traveling upon open roads. A similar argument could be made that law enforcement eavesdropping is reasonably necessary for protection of the public. Would the terror victims of 9/11 have considered such intrusive action unreasonable? Probably not.

    1. 44:
      Thanks for the comment. If this were a warrantless seizure case, the test would be rasonableness. However, this is a search warrant case. Getting around the specific requirements of the warrants clause ("particularly describing") is a little tougher. The government action here looks like a "general warrant" that was one of the colonists main complaints against the British and the main purpose of the Fourth Amendment. The courts dislike "fishing expeditions." The national security angle, as you suggest, could save the statute. Stay tuned!