Wanted: More informed debate than "illegal, illegal!"
Yesterday, the Chronicle ran a staff editorial criticizing the use of "warrantless searches" for national security purposes.
Unsurprisingly, the editorialists overreached:
The Constitution grants the president certain powers but withholds others. The power to conduct warrantless searches is explicitly denied to the government.
That's not quite true. Over at NRO, Andrew McCarthy points out that the federal government has well-established powers to:
Detain American citizens for investigative purposes without a warrant;
Arrest American citizens, based on probable cause, without a warrant;
Conduct a warrantless search of the person of an American citizen who has been detained, with or without a warrant;
Conduct a warrantless search of the home of an American citizen in order to secure the premises while a warrant is being obtained;
Conduct a warrantless search of, and seize, items belonging to American citizens that are displayed in plain view and that are obviously criminal or dangerous in nature;
Conduct a warrantless search of anything belonging to an American citizen under exigent circumstances if considerations of public safety make obtaining a warrant impractical;
Conduct a warrantless search of an American citizen's home and belongings if another person, who has apparent authority over the premises, consents;
Conduct a warrantless search of an American citizen's car anytime there is probable cause to believe it contains contraband or any evidence of a crime;
Conduct a warrantless search of any closed container inside the car of an American citizen if there is probable cause to search the car — regardless of whether there is probable cause to search the container itself;
Conduct a warrantless search of any property apparently abandoned by an American citizen;
Conduct a warrantless search of any property of an American citizen that has lawfully been seized in order to create an inventory and protect police from potential hazards or civil claims;
Conduct a warrantless search — including a strip search — at the border of any American citizen entering or leaving the United States;
Conduct a warrantless search at the border of the baggage and other property of any American citizen entering or leaving the United States;
Conduct a warrantless search of any American citizen seeking to enter a public building;
Conduct a warrantless search of random Americans at police checkpoints established for public-safety purposes (such as to detect and discourage drunk driving);
Conduct warrantless monitoring of common areas frequented by American citizens;
Conduct warrantless searches of American citizens and their vessels on the high seas;
Conduct warrantless monitoring of any telephone call or conversation of an American citizen as long as one participant in the conversation has consented to the monitoring;
Conduct warrantless searches of junkyards maintained by American citizens;
Conduct warrantless searches of docks maintained by American citizens;
Conduct warrantless searches of bars or nightclubs owned by American citizens to police underage drinking;
Conduct warrantless searches of auto-repair shops operated by American citizens;
Conduct warrantless searches of the books of American gem dealers in order to discourage traffic in stolen goods;
Conduct warrantless drug screening of American citizens working in government, emergency services, the transportation industry, and nuclear plants;
Conduct warrantless drug screening of American citizens who are school officials;
Conduct warrantless drug screening of American citizens who are school students;
Conduct warrantless searches of American citizens who are on bail, probation or parole.
As McCarthy points out, those are simply established powers; he hasn't taken up inherent executive powers related to foreign policy and national security.
John Schmidt, a former advisor to President Clinton, addresses that angle in an op-ed for the Chicago Tribune:
President Bush's post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.
The president authorized the NSA program in response to the 9/11 terrorist attacks on America. An identifiable group, Al Qaeda, was responsible and believed to be planning future attacks in the United States. Electronic surveillance of communications to or from those who might plausibly be members of or in contact with Al Qaeda was probably the only means of obtaining information about what its members were planning next. No one except the president and the few officials with access to the NSA program can know how valuable such surveillance has been in protecting the nation.
In the Supreme Court's 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad.
Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.
In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."
Judge Richard Posner also weighs in, in an op-ed for the Washington Post:
These programs are criticized as grave threats to civil liberties. They are not. Their significance is in flagging the existence of gaps in our defenses against terrorism. The Defense Department is rushing to fill those gaps, though there may be better ways.
The collection, mainly through electronic means, of vast amounts of personal data is said to invade privacy. But machine collection and processing of data cannot, as such, invade privacy. Because of their volume, the data are first sifted by computers, which search for names, addresses, phone numbers, etc., that may have intelligence value. This initial sifting, far from invading privacy (a computer is not a sentient being), keeps most private data from being read by any intelligence officer.
The data that make the cut are those that contain clues to possible threats to national security. The only valid ground for forbidding human inspection of such data is fear that they might be used to blackmail or otherwise intimidate the administration's political enemies. That danger is more remote than at any previous period of U.S. history. Because of increased political partisanship, advances in communications technology and more numerous and competitive media, American government has become a sieve. No secrets concerning matters that would interest the public can be kept for long. And the public would be far more interested to learn that public officials were using private information about American citizens for base political ends than to learn that we have been rough with terrorist suspects -- a matter that was quickly exposed despite efforts at concealment.
The entire op-ed is worth reading, as the eminently reasonable judge presents an eminently reasonable argument. As he intimates, it's well worth considering and debating the means we use to obtain intelligence critical to national security, although it's more of a political debate than a legal debate. Partisans who scream that national security surveillance techniques used by the Bush Administration (and predecessors) are "illegal" and leave it at that really don't add much to that debate.