Why Get A Warrant?: The President's Admission that He Authorized Warrantless Domestic Surveillance

By SHERRY F. COLB
Wednesday, Dec. 28, 2005

The New York Times recently revealed that the Bush Administration has been ordering the National Security Agency to eavesdrop on telephone conversations and e-mails of U.S. citizens, without first seeking a warrant. President Bush has acknowledged the truth of the reports.

Such warrantless surveillance contravenes both the Constitution and federal statutes. For ordinary domestic surveillance, the U.S. Constitution generally requires a warrant supported by probable cause to believe that the target of the surveillance has committed a crime. Several statutes, including Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the "Wiretap Act"), and the Foreign Intelligence Surveillance Act ("FISA"), similarly require that a warrant generally be obtained when the government wishes to spy on people in this country.

The President contends, however, that these warrant requirements, and the statutes that contain them, do not take into account the current realities of terrorism and must therefore go by the wayside. Bush's claim does not withstand close scrutiny.

What Are Warrants and Why Do We Require Them?

To appreciate the weakness of the President's claims, it is important to understand the role that warrants play in guarding our privacy.

A warrant is a certification by a detached and neutral magistrate - typically, a judge -- that a government official or other person planning to search people is justified in doing so.

The justification itself depends on the nature and scope of the intended surveillance. For example, if the police wish to have a surgeon cut open a suspect to look for a stray bullet from a victim's gun, more is required than if the police want to open a suspect's suitcase to look for marijuana. Generally, however, the constitutional standard is "probable cause," a phrase that roughly means good reason to believe that the search will turn up evidence of crime.

FISA, the statute that governs domestic gathering of foreign intelligence information, contains similar rules, although they are in some ways more flexible and, in other respects, more cumbersome. Notably, for our purposes, FISA creates a Foreign Intelligence Surveillance Court (the "FISA Court") made up of federal district judges, to review FISA surveillance applications.

FISA also creates a Court of Review, made up of federal judges, to hear government appeals of lower FISA Court decisions. Such appeals take place ex parte (or outside the presence of an opponent).

To carry out electronic surveillance of a U.S. citizen or permanent resident alien, FISA requires that there be "probable cause" to believe that the target is a foreign power or an agent of a foreign power. In reviewing whether to grant a surveillance order, the FISA Court judge defers to the agent seeking the warrant and reviews whether there has been "clear error" in the determination that such probable cause exists.

Importantly, the need for a warrant does not -- in either the criminal or the foreign intelligence context -- add anything substantive to the requirements for conducting surveillance. The point of requiring a warrant lies in the incentives that each actor brings to the job of judging whether there is, or is not, sufficient reason to conduct surveillance.

For an ordinary search warrant, the magistrate defers less to the police officer and decides, on her own, whether there really is "probable cause" to believe that a proposed search will uncover evidence of crime. In the case of either FISA surveillance orders or the more conventional search warrants, however, the judge does not insert an additional demand of the evidence -- he simply decides (with more or less deference) whether the officer properly did her job.

Why Require a Warrant? Looking to Incentives

A police officer is engaged in what the Supreme Court has called the "often competitive enterprise of ferreting out crime." The same, of course, could be said of security agents trying to ferret out terrorism. Therefore, an officer or agent might see probable cause where there is none. For similar reasons, people who visit a surgeon and hear the advice "let's operate" often seek a second opinion from a doctor who does not earn a living cutting people open.

A police officer is understood to have a bias in favor of searching, because her job is to be suspicious and to locate criminals. The same is true of officers conducting foreign surveillance.

A magistrate or judge, by contrast, is more likely to have the ability to look at the facts that an officer presents and to judge, somewhat independently, without the zeal that characterizes an officer on the hunt, whether there is indeed good reason to conduct surveillance. Though purely procedural, the step of requiring an officer to seek a warrant can therefore have a needed disciplinary effect on the process and may in fact save the substance of "probable cause" from being secretly and steadily diluted and ultimately eliminated.

Consider an analogous context. Imagine that a person is accused of a crime but that the arresting officer, rather than a jury, will decide whether the prosecutor has proved guilt beyond a reasonable doubt. This procedure would likely seem grossly unfair to most Americans. If the defendant is not guilty, how likely is the arresting officer to detect that fact, given her investment in the apparent guilt of someone that she has personally arrested?

To be sure, bias is not the same thing as dishonesty (although a bias can certainly give rise to dishonesty, such as when a defendant's mother provides a false alibi in an attempt to save her son from the death penalty). To be biased, simply put, is to have a set of loyalties and interests that could interfere with one's ability objectively to process and measure facts. (Most parents, for example, believe that their children are above average, but they cannot all be right).

When To Forego a Warrant

We have seen that a warrant serves the crucial function of bringing in an arbiter who is more neutral than an executive branch official, to pass on the question of whether a proposed search is justified on the facts. The warrant serves this function in the ordinary criminal investigation context, and it does so as well in the FISA context, in which the federal government wants to uncover terrorist activities and applies to the FISA Court for authorization.

But there are times when seeking a warrant may not be practical. President Bush, in responding to criticisms regarding recent revelations about warrantless monitoring since 2001, has suggested, in defense of his actions, that our current era and the "war on terror" represent, broadly, one of those times. How persuasive is that defense?

In the context of ordinary law enforcement and the U.S. Constitution, the police have authorization to avoid the requirement of a warrant for a particular search or seizure. For example, when an officer is in the "hot pursuit" of a fleeing (alleged) felon who runs into his own home, the officer may enter the house to apprehend the accused felon. In such a situation, there is no time to stop and obtain a warrant before entering the home. The officer, under these conditions, may judge on her own whether she has probable cause to go into the house and arrest the target. The U.S. Supreme Court has recognized such situations as presenting "exigent circumstances" that permit police to act without a warrant.

In the foreign intelligence surveillance area, there is a similar rule. When officials wish to monitor a telephone line for terrorist communications, for example, and the monitoring must begin before there is time to appear before the FISA Court, the Attorney General may authorize a warrantless tap, as long as he gives notice to a FISA Court judge and then applies for a warrant within 72 hours of the commencement of surveillance.

To find the president's defense of his warrantless surveillance persuasive, we accordingly must accept his claim that seeking a warrant, even under the flexible standards of FISA, is simply too burdensome in an age of terrorism. Such a claim, however, is -- on its face -- unpersuasive. Not every terrorism lead will require immediate action, and if a few hours delay is acceptable, then there should be enough time to obtain a warrant. When immediate action is necessary, moreover, it is possible -- within the confines of FISA -- to act immediately, provided that judicial review is sought within three days. The President has thus far offered no explanation for what sort of threat would preclude the seeking of even an after-the-fact warrant.

How The Attacks of 9/11 and Their Aftermath Bear On The Warrant Requirement

When pressed for an answer to such an obvious question, the President invokes national security. He suggests that the only way to survive in an age of terrorism is through secret surveillance with no accountability beyond the executive branch. The problem with such a suggestion is that it is both wrong and dangerous.

The suggestion is wrong because we now know that the problem on September 11th was not the failure to have gathered intelligence. It was the failure to read the intelligence we already had (about flight schools and planned airplane attacks on the World Trade Center towers), to which the administration had ready access. The problem, in other words, was too much -- and poorly organized -- information, rather than not enough. The continuing broad surveillance of U.S. citizens, without oversight, thus promises only to aggravate matters.

The suggestion that terrorism requires warrantless surveillance is dangerous too, because there is no stopping point to the argument that "we're doing everything, regardless of the law, to prevent the loss of life." The argument justifies unprovoked wars, torture, endless invasions of privacy, and the creation of a dictatorship the structure of which might come to resemble that of the very enemies from which the President wishes to protect the people of the United States.

The warrant requirement is a critical component of our democracy. Right now, it ensures that someone outside of the Bush Administration might be in a position to criticize and veto decisions that could be biased, mistaken, and ultimately fatal to the freedom that Bush and his critics alike hold dear.


Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her columns on criminal law and procedure, among other subjects, may be found in the archive of her work on this site.