In a forthcoming essay, The Fourth Amendment Goes to War, Professor Robert J. Delahunty defends the October 2001 OLC opinion he and John Yoo wrote while at the Office of Legal Counsel on how the Fourth Amendment applies in the war on terror. The opinion concluded that the Fourth Amendment does not apply “to the use of the military domestically against foreign terrorists,” and that if it did apply, the courts generally would hold the use of the military domestically against foreign terrorists to be constitutionally reasonable without a warrant because the government interest in protecting the nation would outweigh the relevant privacy interests.
Delahunty argues that the opinion is correct, and he concludes by inviting responses:
Despite the shrill criticisms of the opinion, I have yet to see a convincing refutation of it. Let that be a challenge to those of you who think otherwise. I am open to persuasion, as you should be. Let Law and Reason decide.
I think the OLC opinion’s Fourth Amendment analysis is quite weak, so I thought I would take up Delahunty’s offer and explain why I think so. I will first summarize his arguments, and then offer my own response.
I. Professor Delahunty’s Arguments
Delahunty’s basic claim is that the Fourth Amendment applies differently in times of war. There are two basic paradigms for interpreting the Bill of Rights, Delahunty contends: the law enforcement paradigm and the war paradigm. The Bill of Rights as a whole applies differently at war, and after 9/11, we were at war. The OLC opinion properly “read the Fourth Amendment in that light.”
Delahunty bolsters this case by invoking the “special needs” doctrine of Fourth Amendment law that allows warrantless searches and seizures for legitimate government purposes outside of law enforcement if the searches and seizures are reasonable. For example, in United States v. Green, a 2002 case, the Fifth Circuit upheld a roadblock inside a military base in part on the ground that the purpose of the roadblock was “to protect the military post,” not to detect criminal activity. According to Delahunty, this shows how the search for terrorist suspects triggers a very different set of Fourth Amendment rules.
Delahunty finds particular support in United States v. Verdugo Urquidez, a case held that the Fourth Amendment did not apply to the search of a home in Mexico belonging to a Mexican suspect with no voluntary associations with the United States. A part of the Verdugo opinion reasoned that applying the Fourth Amendment to military activities outside the United States would substantially interfere with the ability of the political branches to respond to foreign siruations properly. Delahunty reasons that the same reasoning should apply to military searches and seizures inside the United States: The governmental interest isn’t any less just because a threat occurs inside the United States.
Delahunty asks what would happen if the government received a tip that a terrorist group had concealed a weapon of mass destruction in an apartment building. Securing the whole building and detaining its residents to look for the WMD would violate the Fourth Amendment under Ybarra v. Illinois, but the alternative would risk hundreds of thousands of lives. Delahunty also points to Murray v. United Kingdom, an opinion by the European Court of Human Rights that interpreted Article 8 of the European Convention of Human Rights. Murray allow the detention of an entire family in the course of identifying a terrorist suspect, and noted that responding to a terrorist threat is different from responding to a traditional criminal threat.
II. A Reply to Professor Delahunty
Before responding on the merits, let me point out that the OLC opinion is highly puzzling because it has no facts. Fourth Amendment law is notoriously fact specific, but the OLC opinion speaks only in grand generalities. In particular, the opinion concludes that the Fourth Amendment does not apply “to the use of the military domestically against foreign terrorists.” But what does that mean? What is the use of the military “against” terrorists? Is a use “against” terrorists if it has the general purpose of undermining terrorism, or is a use against terrorist only if it is actually a search or seizure of an actual terrorist and his property? And what is a “use” of the military? Is surveillance a “use”? Is traditional law enforcement a “use”? It’s hard to know what the OLC opinion is actually trying to say without answers to these questions.
On the merits, the most obvious problem is that the alleged choice between two “paradigms” — the law enforcement paradigm and the war paradaigm — has no support in any Fourth Amendment precedent or text. Indeed, Delahnuty does not rely on any actual Fourth Amendment cases or language to make the case for this fundamental choice. Rather, he looks to constitutional cases and text elsewhere in the Constitution, and then offers the theory that the Bill of Rights as a whole must face this choice. For example, Delahunty relies on the text of the Third Amendment, which distinguishes rights to quarter troops “in times of peace” versus “in times of war.” If the text of one section of the Bill of Rights has a particular feature, Delahunty suggests, it presumably carries over to other sections.
This is an interesting normative theory, but it is not found in existing Fourth Amendment law. There is no time of peace/time of war distinction in Fourth Amendment law. Indeed, the most significant expansions of the scope of the Fourth Amendment occurred in a time of war — the Vietnam war, which was raging at the time of the Warren Court criminal procedure revolution. And this revolution carried over to the national security setting in United States v. United States District Court, the leading case on applying the Fourth Amendment in the national security setting (a case that Delahunty somewhat curiously does not cite). In that case, the Justice Department argued that it did not need a warrant to conduct wiretapping for national security purposes when countering a domestic threat. The Supreme Court disagreed:
These contentions in behalf of a complete exemption from the warrant requirement, when urged on behalf of the President and the national security in its domestic implications, merit the most careful consideration. We certainly do not reject them lightly, especially at a time of worldwide ferment and when civil disorders in this country are more prevalent than in the less turbulent periods of our history. There is, no doubt, pragmatic force to the Government’s position.But we do not think a case has been made for the requested departure from Fourth Amendment standards. The circumstances described do not justify complete exemption of domestic security surveillance from prior judicial scrutiny. Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President’s domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case, we hold that this requires an appropriate prior warrant procedure.
This is all quite far from the imagined choice between a “war paradigm” and a “law enforcement paradigm.” Perhaps there should be such a distinction. But the OLC opinion is supposed to be a statement of existing law, not a creative work of normative constitutional theory, and I think the opinion is wrong in seeing a “war paradigm” in existing law.
I was also not persuaded by Delahunty’s discussion of United States v. Verdugo Urquidez. The quoted passage from that case concerned military activities outside the United States. The Court explained that “the result of accepting [the defendant’s] claim would have significant and deleterious consequences for the United States in conducting activities beyond its boundaries” (emphasis added). Indeed, almost every sentence in the paragraph mentions the limitation to extraterritorial searches and seizures. Given that, it is quite a major leap to extend the principle to searches and seizures inside the United States. And the very next sentence suggests one of several possible reasons for the limitation: “The United States frequently employs armed forces outside this country — over 200 times in our history — for the protection of American citizens or national security.” In contrast, such uses inside the country are rare. Of course, that’s not to say that this is the only or even the most persuasive reason to distinguish military searches inside the U.S. and military searches abroad, or that the two cases must be treated differently. My point is only that it’s a major step to say that a hypothetical discussed in the case of the latter justifies the same rule in the case of the former.
The OLC opinion is also odd in how it overlooks the exigent circumstances exception. The memo suggests that the Fourth Amendment must not apply to military operations inside the U.S. (or at least apply very differently) because the contrary would lead to outrageous results — such as not letting the government secure an entire building if an WMD is believed to be hidden inside it. But surely this would fall easily under the exigent circumstances exception to the warrant requirement, which allows reasonable searches and seizures without a warrant in emergency situations. It’s hard to think of a greater emergency than a nuke killing a few hundred thousand people, and the existing exigent circumstances doctrine would easily allow this regardless of whether the military or the police were doing it.
I was even more puzzled by the discussion of how the European Court of Human Rights interpreted Article 8 of the European Convention of Human Rights. Maybe I am just being provincial, but I can’t see how that is remotely relevant to the Fourth Amendment in the United States Constitution.
III. Points of Agreement
I should hasten to point out that I don’t think the Fourth Amendment requires warrants on the battlefield. And this brings me to where I think Delahunty is clearly right: the Fourth Amendment standard for military conduct inside the United States surely is quite different than it would in the traditional law enforcement setting. Between the special needs doctrine, the exigent circumstances exception, and Verdugo-Urquidez, you would have a very different set of rules.
But it’s hard to say much more than that without being presented with some facts, hypothetical or real: As I said earlier, the Fourth Amendment is so fact-specific that grand generalities don’t get you very far. So the opinion is clearly right in its most modest claims, that Fourth Amendment doctrine is sensitive to national security concerns and that the warrant requirement relaxes in light of national security needs. But I think much of the opinion is weak, and its broader claims that the Fourth Amendment does not apply at all to the use of the military in the war on terror is wrong.
Anderson says:
A useful post. Not my field, but omitting U.S. District Court in this context is very odd ... Almost like discussing statutory limits on executive war powers without mentioning Youngstown.
One suspects Delahunty would’ve been better off with “9/11 was really scary” as an explanation, if not as a legal argument.
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October 26, 2009, 10:17 pmChrisTS says:
I believe that IS the line Yoo is taking.
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October 26, 2009, 10:22 pmArthurKirkland says:
[Deleted by OK. No personal attacks, Arthur.]
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October 26, 2009, 10:31 pmKazinski says:
Yep, I think Delahunty was remiss by not quoting Jackson in Youngstown:
I think the clear distinction Jackson saw in “discussing statutory limits on executive war powers” was the whether the targets were external enemies, or under the direction of external enemies. Of course Keith, Truong and Re: Sealed case, all saw the same distinction.
The 4th amendment clearly applies in a domestic setting against domestic criminals, whatever their motivation. It does not apply against foreign enemies, or their domestic agents.
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October 26, 2009, 10:31 pmJ. Aldridge says:
It didn’t during the the civil war. Imagine having to wait to obtain a warrant before every enemy hiding place could be searched :-)
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October 26, 2009, 10:36 pmAnderson says:
I suppose Delahunty could argue that Prof. Kerr is simply too parochial — that arguments based on 4th Am. law are beside the point, when one is claiming an emergency-powers basis for *setting aside* the 4th Am. (and its interpretations).
Surely there’s an apposite Carl Schmitt quotation ....
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October 26, 2009, 10:42 pmAnderson says:
The 4th amendment clearly applies in a domestic setting against domestic criminals, whatever their motivation. It does not apply against foreign enemies, or their domestic agents.
It seems that much of the time, whether one is really dealing with “foreign enemies” or not, is itself dependent on the results of the search in question.
... “Or their domestic agents”? No warrant needed to search the Rosenbergs’ apartment, Kazinski? Could we trouble you for some case law, or do we just have to rely on “the Constitution is not a suicide pact” (Worst. Jackson. Line. Ever.)?
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October 26, 2009, 10:46 pmKazinski says:
Anderson,
Here is a little case law for you US vs. Truong. I might note that this case deals directly with the 4th amendment, without the muddying of the waters from FISA. I’ve excerpted the relative parts to keep it from getting too long, but please read the whole thing:
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October 26, 2009, 11:12 pmtired of blogs says:
I don’t think the Bush administration proposed to distinguish between domestic terrorists and foreign or foreign-directed terrorists. Timothy McVeigh wasn’t working for anybody abroad. Would the administration have followed ordinary procedure against him, had it known he was en route to Oklahoma City with a bomb?
I heard recently that about 1/3 of the 600+ suspects arrested and/or tried on charges of terrorism since 9/11 are American citizens. Were all of them working for principals abroad? If not, did the administration carefully distinguish between those who were and those who weren’t in seeking or not seeking warrants?
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October 26, 2009, 11:14 pmOren says:
Of course it’s exigent circumstances. If the government was feeling extra-picky about the details, they could just as easily phone a judge (see FRP 41(d)(3)) and have the warrant before the SWAT is even out of the building. Heck, they’d probably have it before the SWAT is even suited up. Talk about a silly example.
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October 26, 2009, 11:20 pmCornellian says:
Our classically educated Framers explicitly contemplated both the Fourth Amendment and the possibility of war and addressed both in the Constitution. If they had wanted to say Inter arma enim silent leges they could certainly have done so.
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October 26, 2009, 11:21 pmCrazyTrain says:
Glad to see you changed your mind on this Orin. When this first came out, you dismissively disagreed with us who thought that that view was very weak. I am trying to find the comment thread. You were pretty dismissive of what we were saying, which is pretty similar to what you are saying now (though in much less detail). You were basically taking the position that no warrant would be needed on the battlefield (being a classic battlefield or area of open insurrection), but then failing to acknowledge that the statement/opinion was taking the position that US cities as they exist today are now part of the battlefield. Wish I could find the comment thread. . . .
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October 26, 2009, 11:21 pmOren says:
And yes somehow his conclusion from Ex parte Milligan is that the government interest in warmaking is paramount.
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October 26, 2009, 11:22 pmThomas says:
I’m not sure what the actual disagreement is, since OK concedes that the 4th amendment doesn’t require warrants on a battlefield. That conclusion is the controversial piece, isn’t it?
Presumably OK’s statement itself would be inappropriate in an OLC opinion, because it is a grand generality, and to offer a full opinion the OLC would need to know the particular facts. I suppose that the OLC could have a draft opinion in the file, ready to finalize when presented with the appropriate facts, but I’m not sure why why we should prefer that approach.
I’m not persuaded on the precision point either. OK says he doesn’t think the 4th amendment requires warrants on a battlefield, but what does that mean? Is a military commander carrying out a raider on a terror cell in, say, Chicago “on a battlefield”? We need specifics, don’t we? Are the lines between war and non-war clearer than the lines between battlefield and non-battlefield?
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October 26, 2009, 11:25 pmOren says:
Since there is no functioning civil government in the area, I would venture to say yes.
[ Yes, I’m from Chicagoland, I can insult our fair city. ]
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October 26, 2009, 11:29 pmChrisTS says:
Anderson:
:-)
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October 26, 2009, 11:32 pmChrisTS says:
CrazyTrain:
So, you think Orin Kerr has changed his view on this matter. Why not congratulate him for being open to reason rather than picking at him for ever having had a different view?
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October 26, 2009, 11:34 pmCrazyTrain says:
Here’s one example, though there was a different one from earlier as well. Orin actually did take the position that he takes here, but was saying that people, such as myself, were being “snarky” and just “guessing” that the memo did not refer to Battle of Gettysburg-style operations, and instead was referring to things that were very, very far from that. I, and those of us other “snarky” ones, must have just been real lucky with our guessing on what the memo addressed. Or, perhaps, we were making some pretty obvious inferences on what the memo was about based on past history of that administration and its work product. And it was Orin and others who were turning a blind eye by pretending that there was a serious possiblity that the memo was about a modern-day Battle of Gettysburg.
Not trying to beat up on you Orin, but you have to admit that those of us who guessed right had some pretty good reasons to believe what we believed, and that you were being pretty dismissive of us by saying we were just guessing and calling us “snarky” for being dead right.
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October 26, 2009, 11:35 pmArthurKirkland says:
Which part was out of bounds?
That Richard Nixon would have found the article’s reasoning handy when dealing with domestic enemies during wartime?
That the type of Constitutional warping championed by the article could entitle President Obama — we are still conducting the Long War in Defense of our Nation, after all — to quarantine the author of the article if the President declared the article a threat?
Or the part about the type of legal reasoning that spawned this article being inappropriate for exposure to law students or private clients?
Whichever it was, I apologize for inartful expression.
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October 26, 2009, 11:37 pmCrazyTrain says:
I said I was glad to see he changed his mind, and I am (though I am not sure he did anymore). But if you look at the linked thread, you will see my comments on why his speculation that OLC was writing about a possible Battle of Gettysburg was completely unsupported based on what we knew about the OLC at the time and what they were writing about at the time. The more reasonable inference (in my opinion, the ONLY reasonable inference) was that OLC was writing about something much closer to dealing with suspected al Qaeda terrorists in US cities. Orin dismissed my view as a “guess” and as “snarky.” I was right; he was wrong. In retrospect, I think even he can admit that my view — ie that we pretty much knew that the memo was not about traditional battlefield situations — was correct. Orin was annoyed with media reports of the memo that oversimplified it. But in his annoyance, I think he failed to fully see the side that I, and many many others, in the thread were arguing, ie that you had to close your eyes to everything we knew about OLC in the 7 years prior to possibly believe that they were just shooting from the hip about some imagined, hypothetical, future battle of Gettysburg.
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October 26, 2009, 11:45 pmCurt Fischer says:
Just because your inference turned out to be true doesn’t mean it was “reasonable”.
For example, say I flip a coin. You announce, possibly snarkily, that the only reasonable outcome of the coin toss will be heads. A statistics professor named Orik Nerr tells you that you are mistaken, and that your guess of “heads” is mere speculation. Later on an investigation reveals that the result of my coin flip was heads.
How would you distinguish the past VC thread about the terrorist memos from my hypothetical coin toss?
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October 26, 2009, 11:55 pmCrazyTrain says:
I agree that you are 100 percent correct on that — just because I was right does not make my theory at the time right or even reasonable. However, I am saying that my theory was very, very strongly supported by the evidence we had before us. I postulated a theory, I offered evidence to support the theory (mainly, everything we knew about the subject matter of memos from that time). My theory was based on the scientific method, and it turned out to be true. The competing “theory” was not really based on anything, but I (and many others in the thread) were told that we were just “guessing” — we were guessing in the same way Darwin was guessing. We were using the knowledge we had to come up with a theory that was strongly supported by the evidence. That our theory turned out to be right does not *itself* prove that our theory was reasonable, but in this context, it is evidence not only that our theory was reasonable but that it really was the most reasonable theory at the time, and the competing theory that Yoo, et al. were writing about a “bona fide battlefield” was not based on any evidence; it was just idle speculation, and it not surprisingly turned out to be wrong.
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October 27, 2009, 12:06 amOrin Kerr says:
Crazy Train,
I certainly don’t mind changing my mind: I always like that, as it means I’m learning. Alas, I don’t think you can credit me with that here: What changed was that the memo was actually published.
If my memory serves me correctly, when the frenzy came about about a reference to this opinion, before the opinion was released, many people started imagining positions the memo might take and slamming the Bush Administration about their guesses as to what it might say or mean. I cautioned against that, as there were modest versions of what that reference might have meant: I wanted to wait until the actual memo was released before criticizing it.
What has changed, then, is that the actual memo is now public, and we can read it and say whether it is persuasive. That’s my sense, at least: If you can show that I blogged something that is actually inconsistent with this, I will send you a free signed copy of the forthcoming Second Edition of my casebook.
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October 27, 2009, 12:21 amOrin Kerr says:
CrazyTrain,
Looking over the thread, and the earlier post I wrote before the memo was released, it looks like you are criticizing me for not seeing the certainty that you would be right in thinking that the opinion would be broad. That is, I said the memo would be unpersuasive if it were broad, but it was possible it was narrower as we didn’t know the scope without seeing it. That judgment seems right to me. As I say in the post, the opinion doesn’t actually say its scope: The reasoning is generally pretty weak, but the opinion doesn’t actually say what it refers to.
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October 27, 2009, 12:37 amOren says:
Orin, I suppose this goes to how you conceive of your role as a legal academic. If your goal is purely to produce reasoned analysis of the relevant facts (once they are available), then withholding judgment is a laudable policy.
On the other hand, if part of your goal is to provide judgment relevant to current political matters, it becomes necessary to formulate an opinion based on less than complete facts (you can hedge, of course).
Perhaps you have no desire to engage in the latter (certainly your posts are more technical than political), in which case I suppose all is well.
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October 27, 2009, 1:04 amSoronel Haetir says:
A more interesting question in the apartment building scenario, what happens to evidence of the the other crimes going on in the building? Both with and without a warrant. Also does it change at all if it turns out that the primary search comes up with no evidence of any WMD?
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October 27, 2009, 1:07 amMark N. says:
If American citizens are alleged to be acting as “domestic agents” of “foreign enemies”, that constitutes treason, which conveniently enough the framers have thought of: the government may convict them upon “the Testimony of two Witnesses to the same overt Act, or [a] Confession in open Court”. If someone has not been thus convicted, I see no grounds for treating them, on mere allegation, as foreign agents not to be granted the usual Constitutional protections.
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October 27, 2009, 1:10 amOrin Kerr says:
Oren writes:
Oren, let’s imagine that I wrote the following about a year before the opinion was published:
I’m curious, Oren, how is that under your framework? (That’s what I actually blogged, which is why I ask.)
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October 27, 2009, 1:18 amMichael Alexander says:
How would a fourth amendment claim arrise in a situation where the military acted against foreign terrorists? I am guessing it would only serve as the basis of a civil action (I know nothing about this) or as the basis of a motion to suppress evidence. As the basis of a motion to suppress evidence, a criminal charge would have had to have been filed. If the US simply deported foreign terrorists and did not bring criminal charges, wouldn’t that eliminate the possiblity of fourth amendment claims in criminal cases? But, if criminal charges were filed, wouldn’t we have to live by the criminal rules?
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October 27, 2009, 1:40 amOrin Kerr says:
Michael,
Presumably litigation would be most likely where the government is attempting to act against terrorist but ends up searching or seizing the person or property of someone who is innocent.
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October 27, 2009, 1:45 amMichael Alexander says:
You say “someone is innocent” — so I assume that means no criminal charges have been filed. Does that mean it would be a civil action against the gov’t?
I do see a fact example. I have not read the OLC piece, but in his article he quotes it when he states “[t]hus, for example, we do not think that a military commander carrying out a raid on a terrorist cell would be required to demonstrate probable cause or to obtain a warrant.” I assume you believe this is a little thin, but it is something.
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October 27, 2009, 1:52 amMCM says:
You should probably assume it means nobody has been convicted of any criminal charges.
Subtle difference, I know.
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October 27, 2009, 5:05 amCleanville Tziabatz says:
9/11 changed everything about 4a law and practice. Some acknowledge the change, while others are deep in the River Nile. It would be poetic justice if McCane is the case where the 9/11 justices finally ess-can the exclusionary rule.
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October 27, 2009, 6:22 amJoe T. Guest says:
Oh, this is terrible. The 5th Amendment prohibits the denial of life, liberty or property without due process of law, yet here we are letting our troops go around shooting people and taking their guns without having given them a fair hearing. It’s utter lawlessness, and I blame John Ashcroft.
/2004 NYTimesMemeGenerator
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October 27, 2009, 8:41 amAnderson says:
(1) But it’s hard to say much more than that without being presented with some facts, hypothetical or real:
A get-out-of-jail-free card’s value is only diminished by its being fact-specific. So if the memo was not good-faith legal analysis, but merely a get-out-of-jail-free card, vagueness is to be expected.
(2) “[t]hus, for example, we do not think that a military commander carrying out a raid on a terrorist cell would be required to demonstrate probable cause or to obtain a warrant.”
I am trying to think why a “military commander,” rather than a SWAT team or the ATF or FBI, would need to “carry out a raid on a terrorist cell” in the domestic U.S.
(3) Kazinski, whatever the merits of the Truong opinion, I cannot quite imagine its rationale sufficing to justify the more intrusive searches apparently envisioned by Delahunty.
If you think that Truong is correctly decided, does that mean you think FISA is unconstitutional insofar as it limits the executive powers recognized by the court?
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October 27, 2009, 9:14 amPersonFromPorlock says:
The weakness of the war paradigm in the current situation is that we aren’t at war. If, through inference from congressional actions, the courts have declared us to be at war they have exceeded their remit, since only Congress has the power to make that declaration.
I know this is a dead horse but if the government’s going to play fast and loose with the Constitution, the Congress ought to man up and say “a state of war exists” explicitly. It has had eight years to do so and has not, so I say no state of war exists, regardless of our being under attack.
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October 27, 2009, 10:09 amAnderson says:
Cleanville, do you troll at OTB under the moniker “Triumph”?
Just curious.
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October 27, 2009, 10:21 amjosh says:
What I want to know is, what does Glenn Greenwald think of this post?
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October 27, 2009, 11:20 amHoward Gilbert says:
Soldiers are not trained in police procedures or law. When deployed in a military operation, they do not obtain or even think about warrants.
It is the responsibility of the national command to not deploy soldiers in a police operation. The military is therefore not exempt from the Fourth Amendment, but it is a matter of Monday morning quarterbacking.If a judge finds months later that the circumstances were not a proper military operation and a warrant was required, then the person whose rights were violated has a cause of action against the US.
In that sense, you have to reverse the logic. It is not that warrants are not required for a military operation, but rather than when warrants are required, it is not a legitimate military operation and should have been conducted by the police.
The most likely scenario in the current conflict is not Gettysburg, but Mumbai. A commando raid by an enemy unit arriving in fast rubber boats launched from a ship off the East Coast. Although local police might respond, it would be legitimate to also use military forces. Once committed to such a battle, soldiers can enter any building, detain people, and use such force as is necessary to accomplish the mission. If they happen to stumble into your basement filled with pot plants, that is probably not admissible as evidence in any criminal case.
Now you may say there are exigent circumstances. That provides a rationale in current legal terms for the activity. However, you are trying to apply legal language to a situation where that law does not apply. The military, once legitimately deployed in defense of the US against an external invader, do not require warrants ever, their actions are inherently reasonable, and the Fourth Amendment is silent about such activity. In the history of the US, no military unit has ever obtained a warrant for anything. A warrant is authority from the Article III branch of government to do something. The Article III branch has no authority that is required or even helpful to military operations, which operate solely under Article II authority.
There is no case law because previous generations have understood this principle. Since the Civil War, one might look for incidents in the New Mexico raids by Poncho Villa, or the martial law in Hawaii after Pearl Harbor. However, there are not a lot of examples of actual attacks by a foreign force inside the US, so you have to use some logic to guess the outcome when an issue has never been litigated.
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October 27, 2009, 12:16 pmSteve says:
The most likely scenario in the current conflict is not Gettysburg, but Mumbai. A commando raid by an enemy unit arriving in fast rubber boats launched from a ship off the East Coast.
Again, this is a good example of why specifics would have helped Delahunty’s opinion. If he was simply writing about the rules that would apply in the case of an actual enemy invasion, it would have been nice to know that.
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October 27, 2009, 1:13 pmKazinski says:
Anderson:
I don’t think FISA is unconstitutional per se, you have to look at the history of FISA to properly interpret it. FISA was a direct result of the Truong case where the district court upheld the use of warrantless searches in foreign intelligence cases, but said the evidence could not be used in a criminal trial, from the 4th Circuit decision:
So Congress came up with a method of issuing warrants in a manner that would preserve the secrecy required for espionage investigations, and still allow criminal charges to be brought. So it was designed to enhance the President’s arsenal of tools in national security cases, not restrict him. The FISA Court of Review in Re: Sealed Case is the highest court to have looked at the matter in depth, their conclusion:
So that is kind of a trick question, why would you interpret FISA to reach an unconstitutional result? FISA wasn’t designed to restrict the President’s constitutional power, it was designed to preserve the option of criminal charges in a foreign intelligence investigation.
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October 27, 2009, 1:47 pmzuch says:
Prof. Kerr [in advancing Delahunty’s argument]:
If the search is reasonable, the Fourth Amendment permits it. The issue is whether a particular search must be done pursuant to a [proper and complete from a 4th Am. standpoint] warrant to be “reasonable”. Presupposing it’s “reasonable” is begging the question.
Cheers,
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October 27, 2009, 1:47 pmzuch says:
Kazinski quotes Truong:
... but one of the reasons for the warrant specificity requirement is to let an independent magistrate make sure that the target of the search is in fact a proper target. Chopping this out and letting the executive decide who is such a “foreign [...] agent” defeats the spirit if not the letter of the Fourth Amendment.
Cheers,
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October 27, 2009, 2:07 pmzuch says:
Kazinski:
I don’t think so. Truong was decided after passage of FISA (but the events at issue had occurred before the passage of FISA so FISA was inapplicable). FISA was more in response to the Church Commission (and other congressional) findings of Nixon’s abuses.
Cheers,
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October 27, 2009, 2:29 pmVisitor Again says:
The agent of a foreign power designation may be manipulated to include almost any radical orgnization. Take a look at Ellsberg v. Mitchell, 807 F.2d 204 (1986), in which the governmental
Those four conversations were mine. I have the FBI logs of them in storage. At the time, 1970 and 1971, I was a poverty lawyer. One of the calls was to a member of the Black Panther Party concerning her welfare case, which I was handling. Another concerned me asking for directions to a meeting at which the Party was to draw up plans for a convention to rewrite the U.S. Constitution. I was going to be a legal advisor on that effort. I’ve forgotten what the other calls were, but they were equally innocuous. I looked forward to the court explaining how interception and decemination of these calls, covered by the attorney-client privilege, could be justified by the national security exception. Here is all we got from Scalia:
To regard the Black Panther Party as a foreign agent is ludicrous. To justify interception and dissemination of privileged attorney-client conversations regarding innocuous matters is even more ludicrous.
The Government never admitted these interceptions during the Pentagon Papers trial in 1972 and 1973 despite the fact that there was an outstanding order for disclosure of all electronic surveillance of the defendants, their lawyers, including me, and consultants. It wasn’t until years later, in the civil suit we brought, that the Government admitted these interceptions. Yet the Sinclair case had already been decided when the Pentagon Papers case went to trial in January, 1973.
By the way, apparently the Government has interceptions of my conversations covered by the state secrets privilege in addition to the Black Panther Party interceptions. I have no idea what those concern.
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October 27, 2009, 2:33 pmVisitor Again says:
In referring to the Sinclair case in my previous post, I meant United States v. U.S. District Court, decided by the Supreme Court, and holding that there was no domestic national security exception to the fourth amendment requirement of a warrant for electronic susrveillance.
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October 27, 2009, 2:42 pmAnderson says:
Thanks, V.A. The Nixon-era record of deceit and malfeasance in the name of “national security” is a strong reminder of the fundamental necessity to have a judicial check on the executive in the matter of searches.
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October 27, 2009, 2:51 pmDilan Esper says:
FISA wasn’t designed to restrict the President’s constitutional power, it was designed to preserve the option of criminal charges in a foreign intelligence investigation.
This is a weird way of putting it. FISA was premised on the President NOT having unlimited constitutional power to conduct national security surveillance. Otherwise, it’s unconstitutional.
Now it is true that as a part of Congress’ exercising ITS constitutional power to set rules for national security surveillance and bind the President, Congress decided that the evidence gathered pursuant to valid FISA warrants could be used in court. But there’s no sense in which FISA (and the Omnibus Crime Control Act of 1968, which bars wiretaps that don’t comply with FISA or some other statute) is premised on the President having some amorphous power to conduct national security surveillance without Congress’ permission. Unless the surveillance power is in Article I, not Article II, FISA makes no sense.
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October 27, 2009, 3:12 pmOren says:
You left out the important punchline: “If the administration has taken the broad view that the 4A does not apply to US cities because we are in a war in Afghanistan, they are out of their minds.” That is, you hedge on not knowing about how broadly they construed the ‘battlefield’ but you never discussed the (hypothetical) consequences of a broad definition. There’s an odd asymmetry — you explain why they are right if their definition is narrow but not why they are wrong if their definition is broad.
I think you fit quite neatly into the first category of being careful only to say things that are correct given the facts instead of stretching the judgment to meet the facts as they are. That is the academic/intellectually correct position.
On the other hand, it would have been nice to have a credible conservative voice say publicly refute (even if no one was making the claim!) the notion that Chicago could be treated like a battlefield. Worst case, you end up sounding somewhat silly in rebutting a non-existent claim.
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October 27, 2009, 3:20 pmAnderson says:
Oren and Orin need to have a beer summit.
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October 27, 2009, 3:31 pmyankee says:
Does this statement have any content without a definition of “the battlefield?” I think not.
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October 27, 2009, 5:44 pmVisitor Again says:
True, but when you have Scalia and other judges saying that warrantless electronic surveillance of the Black Panther Party is justified because it is a classic case of the foreign agent exception to the fourth amendment’s warrant requirement in view of the Party’s contacts with foreign revolutionaries, one has to conclude that we’re not going to get any kind of meaningful check on the executive branch from the judiciary. The Black Panther Party always made its own decisions, and it is preposterous to say the Party was an agent of anyone else. To say that is simply to lie, and Scalia and those other judges ought to be ashamed of themselves. Scalia is a liar. Notice how he avoids any mention of the innocuous attorney-client nature of the four interceptions of my conversations. Even if one accepts the ludicrous foreign agent justification, why was dissemination of these conversations in FBI logs acceptable since they had nothing to do with national security?
By the way, this was Scalia’s last opinion as a circuit judge before he became a Supreme Court justice. Lying in the service of the executive branch always seems to win promotion. His opinion also marked the end of our 15-year legal struggle over these wiretaps, although we did seek certiorari, which was denied.
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October 27, 2009, 6:27 pmOren says:
Don’t be facetious. Just because something has a gray area doesn’t mean that it does not mean anything in any case. If you want to be pedantic, read it as:
“The Fourth Amendment does not apply in any place that is obviously a battlefield.”
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October 27, 2009, 8:33 pmSteve says:
In the immediate wake of 9/11, I believe it was reasonable to think that we might be contending with large numbers of “foreign agents” within our borders and that maybe the law would have to adapt. With the benefit of hindsight, it’s no longer reasonable and thus I find it hard to believe anyone is still defending these sorts of arguments.
I would like to think, for example, that the Jose Padilla debacle never would have gone down that way if the government understood that he would be a one-off.
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October 27, 2009, 9:25 pmyankee says:
The problem here is that there seems to be a phenomenally wide range of variation of views of what constitutes a battlefield. The Bush Administration essentially took the view that since we were in a global war on terror, the entire world was the battlefield. When there’s such a great divergence of views the speaker needs to provide some indication of where the clear areas are.
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October 27, 2009, 10:22 pmWeekly Web Watch 10/26/09 – 11/1/09 « EXECUTIVE WATCH says:
[...] taken against terrorists, even on U.S. soil. Orin Kerr responds, arguing that Delahunty is constructing an overbroad scheme that provides no guidance for interpretation of current law nor for the interpretation of specific [...]