Is a Warrant Required for Presidential Surveillance of Domestic Threats?

Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

United States v. U.S. District Court for Eastern District of Michigan, 407 U.S. 297 (1972).

This case addresses the following issue:

Does the Fourth Amendment require a warrant before the President can authorize electronic surveillance aimed at stopping domestic threats to the United States?

The President is bestowed great power to complete his or her “fundamental duty…to preserve, protect and defend the Constitution of the United States.” Id. at 310. However, that power is checked by the Constitution itself; most notably, the Bill of Rights. Id. at 313. Thus, even when domestic threats to the government or its property are at issue, the Fourth Amendment requires prior judicial sanctioning in the form of a warrant—foreign threats were deliberately not addressed in this case. Id. at 324.

The criminal defendant in the underlying action here was the member of a radical domestic group. Id. at 301. He and the two other leaders of the group were electronically surveilled at the direction of the President, acting through the Attorney General. Id. The three men were suspected of plotting to “attack and subvert the existing structure of the Government.” Id. During discovery in the prosecution, one defendant requested access to all recordings in the possession of the government which were used to support his indictment. Id. at 300. The Attorney General refused, and when the district court judge ordered the production of such recordings, a writ was filed by the United States. Id. at 301.

The Court weighed the competing interests of the President, in fulfilling his fundamental duty to protect the government, and the individual’s fundamental right to privacy. Id. at 312-13. The Court noted that special consideration was owed because, unlike most “ordinary crimes,” national security cases carry “the investigative duty of the executive[, which] may be stronger” than other cases. Id. at 313. Thus, the question boiled down to “whether a warrant requirement would unduly frustrate the efforts of Government to protect itself from acts of subversion and overthrow.” Id. at 315.

Harkening back to English case law that predated the country, the Court found that the interest in privacy and free speech were too great to excuse the warrant requirement—even in the face of national security threats from domestic groups. Id. at 316-17. The danger the Court saw was that “executive officers of the Government” are not “neutral and disinterested magistrates.” Id. at 317. Instead, as the same individuals charged with prosecuting crimes and thwarting domestic threats, the Executive can’t be adequately positioned to weigh the privacy interest guaranteed by the Fourth Amendment. Id. at 318. Additionally, the Court noted that post-judicial monitoring would only address surveillances that produced prosecutions, leaving “prior review by a neutral and detached magistrate [as] the time-tested means of effectuating Forth Amendment rights.” Id.

One caveat to this decision, which the Court was very, very explicit in acknowledging is the likely difference between domestic and foreign threats. Id. at 308-09, 321-22. The Court was careful to note that it “express[ed] no opinion as to the issues which may be involved with respect to activities of foreign powers.” Id. at 322. Instead, the decision was limited to insuring that “indiscriminate wiretapping and bugging of law-abiding citizens cannot occur.” Id. at 321.