Shaky surveillance ruling

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If last week's decision in ACLU v. NSA is left standing, America may have to decide to shut down its commercial passenger airline industry or leave passengers totally at the mercy of terrorists armed with guns, knives, and liquid explosives. For Judge Anna Diggs Taylor has declared the Fourth Amendment "requires prior warrants for any reasonable search, based upon prior-existing probable cause." It is established that airport screenings constitute Fourth Amendment "searches," and in 1989 the Supreme Court noted firearms were only detected in about 0.0004 percent of airport searches -- hardly the "probable cause" needed for a warrant.

Fortunately, the case has already been appealed and will certainly be overturned. One could spend hundreds of pages addressing the errors in the decision, but even a brief summary of a few of its shortcomings should suffice to demonstrate it is an absurd and outrageous opinion.

In discussing "The History of Electronic Surveillance in America," Judge Taylor asserted the Supreme Court in the 1967 Katz case held that "searches conducted without prior approval by a judge or magistrate were per se unreasonable" under the Fourth Amendment, and added that in 1972 the court unanimously held a prior warrant was required "even in domestic security matters." She failed to mention footnote 23 of the Katz case expressly exempted "national security" wiretaps from the holding and the 1972 "Keith" case (United States v. United States District Court) -- to which she repeatedly refers -- emphasized the court only required a warrant for purely domestic national security wiretaps and expressed "no judgment" on the scope of the president's surveillance power regarding "the activities of foreign powers, within or without this country," or their "agents" inside the United States. It thus did not address the issues involved in the current NSA program.

In holding that monitoring the communications of al Qaeda operatives abroad who communicate with people inside the United States also violates the First Amendment, Judge Taylor relied on a precedent striking down a 1950s Little Rock city ordinance requiring the NAACP to submit a full list of its members, which the Supreme Court in Bates recognized would "frighten off potential members and contributors" and thus undermined the amendment's guarantee of peaceable assembly. Does she honestly believe it is unconstitutional for our government to try to frighten off potential members and contributors to international terrorist groups?

Her "separation of powers" analysis is equally unimpressive, relying largely on the president's constitutional duty to "take care that the laws be faithfully executed." She doesn't recognize that, as emphasized by Chief Justice John Marshall in his landmark 1803 opinion in Marbury v. Madison, "an act of the legislature, repugnant to the Constitution, is void" and "not law."

Although Judge Taylor was appointed by President Carter, she fails to note that in 1978 his attorney general, Griffin Bell, told Congress enactment of the Foreign Intelligence Surveillance Act (FISA) could not deprive the president of powers given him by the Constitution. As John Jay clearly explained in Federalist No. 64 in 1788, the new Constitution left the president free "to manage the business of intelligence in such a manner as prudence may suggest."

Nor does she mention that the FISA-established federal appeals court noted in a unanimous 2002 opinion that every court to consider the issue has "held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence information" and concluded that "FISA could not encroach on the president's constitutional power."

Instead of a serious discussion of whether Congress could by mere statute alter the Constitution and seize presidential powers, Judge Taylor chose to declare it "irrelevant" whether FISA is unconstitutional.

Perhaps the most shocking portion of her opinion is the assertion that searches always require "prior warrants" and "probable cause." On the contrary, in several cases the Supreme Court has found "special needs" that justify searches or seizures without either probable cause or a warrant. For example, in National Treasury Employees Union v. Von Raab, the court in 1989 noted the "longstanding principle" that "neither a warrant nor probable cause... is an indispensable component of reasonableness in every circumstance."

These "special needs" cases include such things as health and safety inspections; allowing sobriety checkpoints on highways; permitting the searching of vehicles and individuals at or near national borders; and permitting the searching of passengers and their baggage at airports.

In Von Raab, as in other cases, the court emphasized "the probable-cause standard is peculiarly related to criminal investigations," and quoted with approval a 1974 opinion on passenger searches at airports: "When the risk is the jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane, that danger alone meets the test of reasonableness." As September 11, 2001, attacks demonstrated, modern terrorist attacks can easily cost thousands of lives and billions of dollars in damages.

Nor is it completely clear that the Fourth Amendment even applies to the NSA program being challenged, as it is uncontradicted that every communication in the controversial NSA surveillance program was intercepted outside the United States and involved a foreign national believed or known to be linked to al Qaeda. The Supreme Court in the 1990 Verdugo case held the Fourth Amendment simply does not apply to "actions of the federal government against aliens outside of the United States territory."

If the government has a warrant to wiretap a criminal suspect in this country, it may also record the statements of every person who communicates with that individual without any need for probable cause or an additional warrant. The privacy rights of innocent citizens who communicate with such suspects are essentially "collateral damage."

But Judge Taylor and the American Civil Liberties Union want to impose a higher standard on our government in monitoring communications of al Qaeda terrorists outside the country, forcing NSA to stop listening until the FBI can investigate the people with whom they are communicating in this country (who might well be foreign nationals actively plotting terrorist attacks) and obtain a judicial warrant.

Judge Taylor acknowledges that, under the "state secrets privilege," a court must dismiss a case if the "very subject matter of the action" is a state secret. But since the government has admitted existence of a program involving monitoring al Qaeda communications with people in this country, she concludes that information is no longer classified and the case can be decided without any need to consider the classified details of the program and its potential to save American lives.

This totally ignores the fact that the "reasonableness" of a search for Fourth Amendment purposes is determined, as the Supreme Court explained in its 2002 decision in Board of Education v. Earls, by "balancing the nature of the intrusion on the individual's privacy against the promotion of legitimate governmental interests."(The Earls case also reaffirmed that in some cases involving "safety," a search "unsupported by probable cause" may be "reasonable" and thus lawful under the Fourth Amendment when "special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.")

And as the Supreme Court noted in Haig v. Agee in 1981, it is "obvious and unarguable" that no "governmental interest" is more compelling than "the security of the nation."

Robert F. Turner co-founded the Center for National Security Law at the University of Virginia School of Law in 1981 and is a former chairman of the American Bar Association's Standing Committee on Law and National Security. He wrote his doctoral dissertation on "National Security and the Constitution."