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Leon at

Monday, December 19, 2005  |  posted by Hugh Hewitt

Over at, Leon –evidently a law student– takes up the issue of the president’s power to order warrantless surveillance of American citizens in contact with al Qaeda abroad. Leon writes:

A couple of other brief remarks are in order. References to the case of United States v. United States District Court for the Eastern District of Michigan are making their way around the internet. Supposedly, this case establishes that the President has the constitutional power, carte blanche to conduct warrantless searches when national security is at stake – and that therefore, since the President has such authority Constitutionally, the FISA cannot take it away from him. The only problem with this analysis is that the SCOTUS actually rejected it in the very case that Hugh Hewitt (and numerous others) have cited. I know it’s boring to read the procedural posture, but here it really is a killer – the Government made the argument that the President had such power, but the District court rejected that argument, and the Circuit Court affirmed the District Court, and the SCOTUS affirmed the Circuit Court. Thus, even though the argument is contained in the opinion, it loses.

Now, Leon didn’t link to my post —which is here— or to Professor Kerr’s post on the same case. Had he done so, readers would have immediately seen that Leon is making stuff up, and not only making stuff up, getting the importance of the case completely wrong. To quote Professor Kerr:

The government would have a second argument in case a court doesn’t accept the border search exception: the open question of whether there is a national security exception to the Fourth Amendment that permits the government to conduct searches and surveillance for foreign intelligence surveillance. Footnote 23 of Katz v. United States left this open, and Justice White’s conccurrence in Katz expanded on this point:

Wiretapping to protect the security of the Nation has been authorized by successive Presidents. The present Administration would apparently save national security cases from restrictions against wiretapping. We should not require the warrant procedure and the magistrate’s judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.

The Supreme Court also left this question open in the so-called “Keith” case, United States v. United States District Court, in 1972. Justice Powell’s opinion in the Keith case concluded that there was no national security exception to the Fourth Amendment for evidence collection involving domestic organizations, but expressly held open the possibility that such an exception existed for foreign intelligence collection:

Further, the instant case requires no judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country. The Attorney General’s affidavit in this case states that the surveillances were “deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government.” There is no evidence of any involvement, directly or indirectly, of a foreign power.

The administration presumably takes the position that the President does have such power in cases involving foreign evidence collection, and that the NSA surveillance is such a case. The Supreme Court has never resolved the question, so it’s an open constitutional issue. Nonetheless, between the border search exception and the open possibility of a national security exception, there are pretty decent arguments that the monitoring did not violate the Fourth Amendment. Maybe persuasive, maybe not, but certainly open and fair arguments under the case law.

Let’s hope Leon does better on his finals, and for his future clients.

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