The Fourth Amendment has long been understood to require the government to secure a search warrant from a judicial officer before conducting a search. Electronic surveillance escaped this requirement until 1968, when Congress enacted a federal law requiring judge-issued warrants for ‘‘normal’’ electronic surveillance. The law, however, said that it was not meant to ‘‘limit the constitutional power of the President to protect the Nation against actual or potential attack or other hostile acts of a foreign power...[or] to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government.’’
In United States v. United States District Court (1972), the government took the position that entirely domestic electronic surveillance was exempted from the statute’s warrant requirement if it were conducted for national security reasons. The defendants in the case were charged with conspiracy to destroy government property; one of them was also charged with bombing a CIA building in Detroit. Suspecting they had been the subjects of secret wiretaps, the defendants asked the trial court to force the government to admit whether it had conducted electronic surveillance. If the government had wiretapped them, the defendants wanted the trial court to determine whether information obtained from the wiretap had tainted the indictment.
The government admitted that it wiretapped telephones used by the defendants but argued that the electronic surveillance was lawful because it was undertaken ‘‘to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government.’’ It argued that disclosure of the facts underlying the electronic surveillance would harm national security.
In an eight-to-zero vote (Justice Rehnquist did not participate), the Supreme Court rejected the government’s argument. Justice Powell’s majority opinion first concluded that the federal electronic surveillance law did not grant the president any new powers to conduct warrantless searches; rather, the text of the law clearly indicated only that it did not take any preexisting power away from the president to protect national security. Turning to the question that the president had the preexisting authority to conduct warrantless electronic surveillance, the Court, citing Katz v. United States (1968), noted that the Fourth Amendment was not limited to physical searches.
The Court rejected the government’s argument that a warrant requirement would interfere too much with the president’s duty to protect domestic security and would jeopardize national security by risking the compromise of informants and other secret assets. The Court was especially concerned that unchecked authority to conduct warrantless electronic surveillance would tempt the Executive Branch to persecute political enemies in the guise of national security. The Court also noted that Congress had trusted federal judges to handle a variety of cases involving sensitive information, such as cases of ‘‘espionage, sabotage, and treason.’’
Finally, the Court emphasized that its decision was narrow in scope, leaving unaddressed whether the government could conduct warrantless electronic surveillance of ‘‘foreign powers or their agents.’’
Justice Douglas joined Justice Powell’s opinion but added a short concurrence that highlighted past and contemporaneous instances of the excesses of the government in the name of national security. Justice White agreed that the government had to turn over the contents of the electronic surveillance of the defendants but argued that the case could be resolved on statutory grounds without having to decide the scope of the Fourth Amendment.
Six years later, Congress enacted the Foreign Intelligence Surveillance Act of 1978 (FISA) to address the question left unresolved in United States District Court regarding surveillance of foreign powers. Under FISA, the government can conduct electronic surveillance without a warrant for up to one year when the Attorney General certifies in writing that the surveillance is directed at communications solely between foreign powers and their agents, that it is unlikely that communications involving a ‘‘United States person’’ will be intercepted, and that there have been ‘‘minimization procedures’’ set forth that further reduce the chance that communications involving United States persons will be kept. Where communications involve a United States person as well as a foreign power or foreign agent, FISA requires that the government obtain a warrant from a special foreign intelligence court.
The significance of United States District Court lies in the Court’s conclusion that national security did not automatically trump the Fourth Amendment, as well as its prompting of Congress to pass the FISA.
References and Further Reading
Cases and Statutes Cited
See also Berger v. New York, 388 U.S. 41 (1967); Electronic Surveillance, Technological Monitoring, and Dog Sniffs; Katz v. United States, 389 U.S. 347 (1968); National Security; Search (General Definition); Search Warrants; Terrorism and Civil Liberties; Wiretapping Laws