Right Side of the Rainbow

Philip Bobbitt, a law professor at Columbia and a former senior director of the National Security Council under the Clinton Administration, weighs in on the Protect America Act:rap wmv

Congress just passed, and President Bush hurriedly signed, a law that amends the legal framework for the electronic interception of various kinds of communication with foreign sources. Almost immediately, commentators concluded that the law was unnecessary, that it authorized a lawless and unprecedented expansion of presidential authority, and that Democrats in Congress cravenly accepted this White House initiative only for the basest political reasons. None of these widely broadcast conclusions are likely to be true.

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As Judge Richard Posner has put it, “once you grant the legitimacy of surveillance aimed at detection rather than at gathering evidence of guilt, requiring a warrant to conduct it would be like requiring a warrant to ask people questions or to install surveillance cameras on city streets.” Warrants, which originate in the criminal justice paradigm, provide a useful standard for surveillance designed to prove guilt, not to learn the identity of people who may be planning atrocities.

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Furthermore, there is an unstated assumption that warrantless surveillance is lawless surveillance. There is, however, judicial precedent for warrantless searches, even if you can’t tell this from the public debate.

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In fact, there are many instances in which warrantless surveillance has been held to be permissible under the Fourth Amendment. Searches in public schools require neither warrants nor a showing of probable cause. Government offices can be searched for evidence of work-related misconduct without warrants. So can searches conducted at the border, or searches undertaken as a condition of parole. Searches have been upheld in the absence of a warrant where there is no legitimate expectation of privacy. The Clinton administration conducted a warrantless search — lawfully — when it was trying to determine what the spy Aldrich Ames was up to. The day after Pearl Harbor, President Roosevelt authorized the interception of all communications traffic into and out of the United States. [Emphasis added.]

Here’s yet another instance of constitutionally permissible warrantless searches, one Professor Bobbitt doesn’t mention but that’s on point: pre-flight screening at the airport. Before you board a plane in the United States, Government agents search both you and your bags; they do this not only in the absence of a warrant, but also in the absence of even individualized suspicion. A person found to be in possession of dangerous contraband might face criminal prosecution. But prosecution isn’t the Government’s chief interest here. Its chief interest is in preventing a terrorist from either blowing a plane up or turning it into a guided missile. rap wmv

When data-mining foreign communications, the Government isn’t looking primarily to build a criminal case. Its looking to detect and disrupt potential acts of terrorism. And like the security drones at the airport, the eavesdroppers at the NSA don’t know who they’re looking for until they’ve found him. Initially, the Government knows only that it’s interested in bags and calls. It doesn’t know that it’s interested in Mr. Doe’s bags or calls until it’s already examined them. rap wmv

Obviously, it isn’t practical for the Government to get a warrant before searching every bag or intercepting every call. What’s more, it’s not even permissible. To get a warrant, the Government needs probable cause. But it doesn’t know that it has probable cause until it’s searched the bag or intercepted the call!rap wmv

We live everyday of our lives among people who plan to harm others. But until one of these aspiring criminals tips his hand, there’s nothing to be done about him and no warrant against him can issue. In fact, more often than not, we won’t actually prevent his crime. We’ll only punish it after the fact. This is the price we pay to live in a free country, where the warrant requirement serves as a bulwark against baseless prosecutions.rap wmv

But when the goal isn’t prosecutorial and potentially thousands of lives and billions in property are at risk, we add weight to our interest in security and subtract it from our interest in curbing the Government’s power. For though few are keen to live in a surveillance society, fewer still are keen to live in a suicidal one.rap wmv