Oren:
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.”

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.

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.

Does this statement have any content without a definition of “the battlefield?” I think not.

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.”

Anderson: 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.

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.

I should hasten to point out that I don’t think the Fourth Amendment requires warrants on the battlefield.

Does this statement have any content without a definition of “the battlefield?” I think not.

As for whether the OLC memo takes (or took) such a broad reading, we just don’t know. The Administration has long had a very broad view of how broadly “the battlefield” is in the GWOT, so it’s possible. But we just don’t know, and without that it’s hard to know whether the OLC memo is objectionable.

I’m curious, Oren, how is that under your framework? (That’s what I actually blogged, which is why I ask.)

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.

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.

defendants disclosed that four of Young’s conversations were overheard between September 17, 1970 and June 23, 1971, during wiretap surveillance of the Los Angeles Chapter of the Black Panther Party. Defendants denied the existence of any interceptions of Russo’s conversations and of any other interceptions of Young’s conversations, not covered by the state secrets privilege.

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:

Defendants have alleged sufficient objective facts to place the wiretap of the Los Angeles Chapter of the Black Panther Party (which intercepted all four conversations at issue here) in a rational national security context. We so held in a previous challenge to the legality of the same wiretap. Sinclair v. Kleindienst, 645 F.2d 1080, 1082-85 (D.C.Cir.1981). The Black Panther Party was known to have had “contacts with foreign revolutionaries,” id. at 1082, which, we emphasized, “provide the clearest justification for a national security exception to Title III,” id. at 1084; see also Ellsberg I, 709 F.2d at 71 (MacKinnon, J., concurring in part and dissenting in part) (“[E]xamination … leaves no room to doubt that these warrantless surveillances fell within the putative ‘foreign agent exception’ to the warrant requirement of the Fourth Amendment.”).

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.

FISA was a direct result of the Truong case where the district court upheld the use of warrantless searches in foreign intelligence cases….

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,

First, the government should be relieved of seeking a warrant only when the object of the search or the surveillance is a foreign power, its agent or collaborators.

… 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,

[T]he “special needs” doctrine of Fourth Amendment law [] allows warrantless searches and seizures for legitimate government purposes outside of law enforcement if the searches and seizures are reasonable.

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,

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?

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:

The district court accepted the government’s argument that there exists a foreign intelligence exception to the warrant requirement. The district court, however, also decided that the executive could proceed without a warrant only so long as the investigation was “primarily” a foreign intelligence investigation. The district court decided that the FBI investigation had become primarily a criminal investigation by July 20, 1977, and excluded all evidence secured through warrantless surveillance after that date.

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:

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power. The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable.

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.

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.

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.

Just curious.

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.

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?

/2004 NYTimesMemeGenerator

You say “someone is innocent” — so I assume that means no criminal charges have been filed.

You should probably assume it means nobody has been convicted of any criminal charges.

Subtle difference, I know.

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.

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.

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.

Oren, let’s imagine that I wrote the following about a year before the opinion was published:

What to make of this depends mostly on what you think the phrase “domestic military operations” might mean, and more specifically, what “military operations” are. If “domestic military operations” refers to actual active battlefields in the United States — think the Battle of Gettysburg, or the British attack on Washington in the War of 1812, etc. — then I think that conclusion is very likely correct.

Why? Here caselaw doesn’t do much for us. As far as I know there is no caselaw on anything like this question. Probably as close as you can get is United States v. Verdugo-Urquidez, and that’s still pretty far away. But I think the problem is that the principles of the Fourth Amendment and the principles of an active battlefield are almost 180 degrees apart from each other. Fourth Amendment rules are all about proportionality; by contrast, military strategy often requires overwhelming force. I don’t know how a Fourth Amendment lawyer could be expected to weigh in on questions of military strategy to try to respect some sort of Fourth Amendment constitutional values. What would the lawyer say — that the Army should break into enemy safehouses only during day time, for fear that breaking in at night could interrupt the enemy’s “period of nighttime repose”? That they should “knock and announce” their presence before the Marines take a hill? It’s hard to know how the two worlds are supposed to mix; they are just totally different.

Or at least they are very different if “domestic military operations” is given a narrow meaning, such as an active battlefield. If the phrase has some sort of broader meaning, then you start to run into problems. Obviously, the mere fact that a war is on does not eliminate Fourth Amendment rights. Nor does the fact that the President is commanding the Executive Branch to act to protect the country mean that the Fourth Amendment doesn’t apply. See, e.g., United States v. United States District Court. If the OLC memo took a contrary position, then it’s pretty obviously wrong.

As for whether the OLC memo takes (or took) such a broad reading, we just don’t know. The Administration has long had a very broad view of how broadly “the battlefield” is in the GWOT, so it’s possible. But we just don’t know, and without that it’s hard to know whether the OLC memo is objectionable.

I’m curious, Oren, how is that under your framework? (That’s what I actually blogged, which is why I ask.)

Kazinski: 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.

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.

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.

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.

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.

Curt Fischer: Just because your inference turned out to be true doesn’t mean it was “reasonable”.

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.