Tuesday, December 20, 2005


This evening I heard Jonathan Alter of Newsweek discuss the NSA story with Hugh Hewitt on Hewitt's radio show. Just before a commercial break Jonathan and Hugh were both expressing their views over each other, but, I'd guess I heard Mr. Alter say that the President was secretly spying on the American people. I think I've heard or read others make the same kind of statement.

My earlier post on this topic, NSA1, considered the war powers of Congress, the Commander in Chief powers of the President, and the lack of clear powers by the Supreme Court to constrain either Congress or the President with respect to these powers. My thoughts were that if the NSA was told by the President to secretly spy on members of the enemy, then such actions would fall easily within the Commander and Chief powers of the President. The suggestion that the President was secretly spying on the American people leads me to think some people may see the issues differently. Imagine that, eh?

This time I want to start by considering what it would mean for the President to "secretly spy on the American people" through the use of warrantless phone taps. My first guess about what this means is that the wire taps at issue must have involved phone conversations of 2 citizens of the United States. Such phone conversations could easily be characterized as "spying on 2 of the American people," and therefore as "spying on the American people." But, suppose one of the people involved in the secretly monitored phone conversation was not a citizen of the United States. Could we clearly characterize this secret monitoring as "spying on the American people." In general, I don't think we clearly can. One possible reason for secretly monitoring the phone conversation might be that the government thought that one of the people involved in the conversation was not a citizen and was an enemy of the United States. Another possible reason for secretly monitoring the phone conversation might be to keep track of the American citizen who was on the phone. If this was the case, then that would indeed look like spying on a member of the "American people." I think in that case it is clear that such secret "spying" would be unconstitutional unless it were authorized by court order.

With this I am led to the Fourth Amendment:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

If the subject of investigation in monitored phone calls is a citizen of the United States, then the Fourth Amendment seems relevant to me. This Amendment in our Bill of Rights is the reason I suggested just above that secretly monitoring a U.S. citizen without a warrant would be unconstitutional. Of course, the NSA story itself is about circumstances in which the subject of investigation in the monitored phone calls is not a citizen of the United States. Further, the subject of "investigation" is thought to be a member of enemy forces. I don't believe the right spoken of in the Fourth Amendment is a right held against our government when the person involved is not a citizen of the United States. And, certainly, I don't think the Constitution grants such a right "against unreasonable searches and seizures" to a member of an enemy we are at war against. Further, I hope relatively few of my fellow Americans would want the Constitution to extend such rights to members of enemy forces, and particularly when the enemy has already successfully killed fellow Americans within the borders of our country.

Now, perhaps there is still a concern regarding conversations between a member of the enemy and an American citizen. I can't imagine the concern is defined with respect to the enemy. So, there may be a concern that the American citizen should not be secretly monitored in such conversations without a warrant. If so, then I'm not sure that makes much sense to me. The subject of investigation is not the citizen, but the enemy. It seems coincidental that the monitored conversation of a member of the enemy turns out not to be another member of the enemy, but an American citizen. I suppose some might assert that in such cases we should say the secret monitoring of the American's conversation is an unreasonable search, unless the monitoring was authorized by Court order, which would also require some probable cause to believe the citizen should be monitored. I cannot agree with such an assertion because, a coincidence seems neither reasonable nor unreasonable in general. Coincidences happen. Further, when the very purpose of the secret spying on people involves a member of enemy forces, I think it is quite reasonable to listen in on any conversations by that enemy that we can. If such a conversation happens to include a fellow American, I cannot conclude that government has unreasonably searched that fellow American.

The NSA story seems only to involve "spying on a member of the enemy" without a warrant. Such a warrant seems to me not to be needed in general because the President has the power of Commander in Chief to carry out a war against the enemy. For some reason the President's critics seem more concerned with politics than with fighting a war against an enemy that has killed fellow Americans right here at home. Certainly if the President has authorized warrantless "spying" on the phone conversations of Americans, and such conversations did not involve the belief that at least one party to the conversation was a member of the enemy, then such actions by the President would clearly be unconstitutional. At this point, all I've heard in the story is that the President authorized monitoring phone conversations of the enemy without a Court's prior approval. When the issue involves waging war against the enemy, I don't think the Constitution gives the Judicial branch of government the power to constrain the means by which the President uses his power as Commander in Chief.

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