From Washington Lawyer, July/August 2014
Surveillance Rule Differs On, Off American Soil
The June 2014 Washington Lawyer cover article, “Cover Blown: NSA Surveillance and Secrets,” has a variety of problems. However, I will focus only on one. The author, Anna Stolley Persky, and the academic and other critics and commentators she cites seem to assume that the Fourth Amendment generally applies to NSA collections of signals intelligence. Not so fast.
Further, Ms. Persky cites Katz v. United States for the proposition that “the right to privacy extend[s] to private conversations over the telephone.” True. But had she read to the end of the opinion, she would have seen the following language in footnote 23: “Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case.” Five years later, in United States v. United States District Court, the U.S. Supreme Court held that electronic surveillance in the context of domestic security does require a judicial warrant. However, of crucial importance, Justice Powell repeatedly emphasizes that “we have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.”
In short, the Supreme Court has never held that Fourth Amendment warrant requirements apply to the collection of signals intelligence in the conduct of foreign intelligence. Only a fool firmly predicts how the Supreme Court will decide issues. However, there are powerful reasons for distinguishing between domestic and foreign contexts. Although domestic criminals can and do commit heinous acts, they do not threaten the United States or its government. By contrast, foreign governments, as in the days of the Soviet Union, and terrorists today may constitute an existential threat.
—Robert L. Deitz
Deitz, a public policy professor at
George Mason University, served as
NSA general counsel from 1998 to 2006