Warrantless searches in the United States
Encyclopedia
Warrantless searches are searches and seizures
conducted without search warrant
s.
In the United States
, warrantless searches are restricted under the Fourth Amendment
to the United States Constitution
, part of the Bill of Rights
, which provides that "The right of the people to be secure...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."
, agents of the British Empire
conducted warrantless searches on homes of colonists, which was viewed as an abuse of power. The Fourth Amendment barred all warrantless searches; nevertheless, the interpretation and limitations of the Fourth Amendment and the permissibility of warrantless searches under certain circumstances (such as war
time) have been important in the history of executive
and judicial
power in the United States, where it is only legal under martial law.
During the American Revolutionary War
, "the Continental Congress
regularly received quantities of intercepted British
and Tory
mail. See intelligence in the American Revolutionary War
.
In 1975, the Church Committee
, a United States Senate
select committee chaired by Frank Church
of Idaho
, a Democrat
, investigated Cold War
intelligence-gathering by the federal government, including warrantless surveillance. The committee report found the "Americans who violated no criminal law and represented no genuine threat to the 'national security
' have been targeted, regardless of the stated predicate. In many cases, the implementation of wiretaps
and bugs
has also been fraught with procedural violations, even when the required procedures were meager, thus compounding the abuse. The inherently intrusive nature of electronic surveillance, moreover, has enabled the Government to generate vast amounts of information - unrelated to any legitimate governmental interest - about the personal and political lives of American citizens."
The "potential criminal liability of the National Security Agency
and the Central Intelligence Agency
for operations such as SHAMROCK
(interception of all international cable traffic from 1945 to 1975) and MINARET
(use of watchlists of U.S. dissidents and potential civil disturbers to provide intercept information to law enforcement agencies from 1969 to 1973)" helped persuade president Gerald Ford
in 1976 to seek surveillance legislation, which was ultimately enacted as Foreign Intelligence Surveillance Act in 1978.
Abuses of power by the federal government led to reform legislation in the 1970s. Advancing technology began to present questions not directly addressed by the legislation as early as 1985.
In its 1985 report "Electronic Surveillance and Civil Liberties," the nonpartisan Congressional Office of Technology Assessment
suggested legislation be considered for a surveillance oversight board. Congress disbanded this agency in 1995.
testified to the Senate Intelligence Committee
that “The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes…and that the president may, as has been done, delegate this authority to the Attorney General.” This “inherent authority” was used to search the home of CIA spy Aldrich Ames
without a warrant. "It is important to understand," Gorelick continued, "that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities."
secretly authorized the National Security Agency
to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying" as part of the War on Terrorism
.
The revelation of this program caused a widespread controversy, with legal experts and politicians concluding that it violates the Foreign Intelligence Surveillance Act and other legal experts saying that the FISA law only applied to domestic to domestic calls and not to overseas calls and communications that involved a foreign intelligence threat. Bush administration officials such as the Attorney General defended the program by citing that this was a part of the justification that the Clinton administration used in its warrantless search of Aldrich Ames. They claimed that since Ames was spying for a foreign power, presidential power applied and FISA did not.
of telephone
calls created by the United States
National Security Agency
(NSA) with the cooperation of three of the largest telephone carriers in the United States: AT&T
, Verizon and BellSouth
. All three companies were paid to provide the information to the NSA. It is speculated that the database contains over 1.9 trillion call-detail record
s of phone calls made after September 11, 2001. The database's existence has prompted fierce objections from those who view it as constituting a warrantless or illegal search, however the collection of third party information has been authorized by the USA PATRIOT Act
and upheld by the courts.
FISA Court of Review Ruling in 2002
In 2002, in Re Sealed Case No. 02-001 the United States Foreign Intelligence Surveillance Court of Review examined all the significant appellate decisions. They noted all the Federal courts of appeal having looked at the issue had concluded that there was such constitutional power. Furthermore, if there was such power, "FISA could not encroach on the president's constitutional power." However, In Re Sealed Case "[took] for granted" that these cases are correct.
"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......
....Even without taking into account the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close. We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable." http://www.fas.org/irp/agency/doj/fisa/fiscr111802.html
The balancing test from Keith case referred to in the decision is a legal test that asks if the primary use of the warrantless search to collect foreign intelligence as per presidential authority, or was the primary use of the warrantless search to gather evidence to use in a criminal trial.
Search and seizure
Search and seizure is a legal procedure used in many civil law and common law legal systems whereby police or other authorities and their agents, who suspect that a crime has been committed, do a search of a person's property and confiscate any relevant evidence to the crime.Some countries have...
conducted without search warrant
Search warrant
A search warrant is a court order issued by a Magistrate, judge or Supreme Court Official that authorizes law enforcement officers to conduct a search of a person or location for evidence of a crime and to confiscate evidence if it is found....
s.
In the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, warrantless searches are restricted under the Fourth Amendment
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
to the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
, part of the Bill of Rights
United States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
, which provides that "The right of the people to be secure...against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause
Probable cause
In United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered. It is also used to refer to the...
, supported by oath
Oath
An oath is either a statement of fact or a promise calling upon something or someone that the oath maker considers sacred, usually God, as a witness to the binding nature of the promise or the truth of the statement of fact. To swear is to take an oath, to make a solemn vow...
or affirmation
Affirmation in law
In law, an affirmation is a solemn declaration allowed to those who conscientiously object to taking an oath. An affirmation has exactly the same legal effect as an oath, but is usually taken to avoid the religious implications of an oath...
, and particularly describing the place to be searched, and the persons or things to be seized."
History
In the Thirteen ColoniesThirteen Colonies
The Thirteen Colonies were English and later British colonies established on the Atlantic coast of North America between 1607 and 1733. They declared their independence in the American Revolution and formed the United States of America...
, agents of the British Empire
British Empire
The British Empire comprised the dominions, colonies, protectorates, mandates and other territories ruled or administered by the United Kingdom. It originated with the overseas colonies and trading posts established by England in the late 16th and early 17th centuries. At its height, it was the...
conducted warrantless searches on homes of colonists, which was viewed as an abuse of power. The Fourth Amendment barred all warrantless searches; nevertheless, the interpretation and limitations of the Fourth Amendment and the permissibility of warrantless searches under certain circumstances (such as war
War
War is a state of organized, armed, and often prolonged conflict carried on between states, nations, or other parties typified by extreme aggression, social disruption, and usually high mortality. War should be understood as an actual, intentional and widespread armed conflict between political...
time) have been important in the history of executive
Executive (government)
Executive branch of Government is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the idea of the separation of powers.In many countries, the term...
and judicial
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
power in the United States, where it is only legal under martial law.
During the American Revolutionary War
American Revolutionary War
The American Revolutionary War , the American War of Independence, or simply the Revolutionary War, began as a war between the Kingdom of Great Britain and thirteen British colonies in North America, and ended in a global war between several European great powers.The war was the result of the...
, "the Continental Congress
Second Continental Congress
The Second Continental Congress was a convention of delegates from the Thirteen Colonies that started meeting on May 10, 1775, in Philadelphia, Pennsylvania, soon after warfare in the American Revolutionary War had begun. It succeeded the First Continental Congress, which met briefly during 1774,...
regularly received quantities of intercepted British
United Kingdom of Great Britain and Ireland
The United Kingdom of Great Britain and Ireland was the formal name of the United Kingdom during the period when what is now the Republic of Ireland formed a part of it....
and Tory
Loyalist (American Revolution)
Loyalists were American colonists who remained loyal to the Kingdom of Great Britain during the American Revolutionary War. At the time they were often called Tories, Royalists, or King's Men. They were opposed by the Patriots, those who supported the revolution...
mail. See intelligence in the American Revolutionary War
Intelligence in the American Revolutionary War
Intelligence in the American Revolutionary War was essentially monitored and sanctioned by the Continental Congress to provide military intelligence to the Continental Army to aid them in fighting the British during the American Revolutionary War...
.
In 1975, the Church Committee
Church Committee
The Church Committee is the common term referring to the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, a U.S. Senate committee chaired by Senator Frank Church in 1975. A precursor to the U.S...
, a United States Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
select committee chaired by Frank Church
Frank Church
Frank Forrester Church III was an American lawyer and politician. A member of the Democratic Party, he served as a United States Senator from Idaho from 1957 to 1981....
of Idaho
Idaho
Idaho is a state in the Rocky Mountain area of the United States. The state's largest city and capital is Boise. Residents are called "Idahoans". Idaho was admitted to the Union on July 3, 1890, as the 43rd state....
, a Democrat
Democratic Party (United States)
The Democratic Party is one of two major contemporary political parties in the United States, along with the Republican Party. The party's socially liberal and progressive platform is largely considered center-left in the U.S. political spectrum. The party has the lengthiest record of continuous...
, investigated Cold War
Cold War
The Cold War was the continuing state from roughly 1946 to 1991 of political conflict, military tension, proxy wars, and economic competition between the Communist World—primarily the Soviet Union and its satellite states and allies—and the powers of the Western world, primarily the United States...
intelligence-gathering by the federal government, including warrantless surveillance. The committee report found the "Americans who violated no criminal law and represented no genuine threat to the 'national security
National security
National security is the requirement to maintain the survival of the state through the use of economic, diplomacy, power projection and political power. The concept developed mostly in the United States of America after World War II...
' have been targeted, regardless of the stated predicate. In many cases, the implementation of wiretaps
Telephone tapping
Telephone tapping is the monitoring of telephone and Internet conversations by a third party, often by covert means. The wire tap received its name because, historically, the monitoring connection was an actual electrical tap on the telephone line...
and bugs
Covert listening device
A covert listening device, more commonly known as a bug or a wire, is usually a combination of a miniature radio transmitter with a microphone. The use of bugs, called bugging, is a common technique in surveillance, espionage and in police investigations.A bug does not have to be a device...
has also been fraught with procedural violations, even when the required procedures were meager, thus compounding the abuse. The inherently intrusive nature of electronic surveillance, moreover, has enabled the Government to generate vast amounts of information - unrelated to any legitimate governmental interest - about the personal and political lives of American citizens."
The "potential criminal liability of the National Security Agency
National Security Agency
The National Security Agency/Central Security Service is a cryptologic intelligence agency of the United States Department of Defense responsible for the collection and analysis of foreign communications and foreign signals intelligence, as well as protecting U.S...
and the Central Intelligence Agency
Central Intelligence Agency
The Central Intelligence Agency is a civilian intelligence agency of the United States government. It is an executive agency and reports directly to the Director of National Intelligence, responsible for providing national security intelligence assessment to senior United States policymakers...
for operations such as SHAMROCK
Project SHAMROCK
Project SHAMROCK, considered to be the sister project for Project MINARET, was an espionage exercise that involved the accumulation of all telegraphic data entering into or exiting from the United States...
(interception of all international cable traffic from 1945 to 1975) and MINARET
Project MINARET
Project MINARET was a sister project to Project SHAMROCK operated by the NSA, which, after intercepting electronic communications that contained the names of predesignated US citizens, passed them to other government law enforcement and intelligence organizations...
(use of watchlists of U.S. dissidents and potential civil disturbers to provide intercept information to law enforcement agencies from 1969 to 1973)" helped persuade president Gerald Ford
Gerald Ford
Gerald Rudolph "Jerry" Ford, Jr. was the 38th President of the United States, serving from 1974 to 1977, and the 40th Vice President of the United States serving from 1973 to 1974...
in 1976 to seek surveillance legislation, which was ultimately enacted as Foreign Intelligence Surveillance Act in 1978.
Abuses of power by the federal government led to reform legislation in the 1970s. Advancing technology began to present questions not directly addressed by the legislation as early as 1985.
In its 1985 report "Electronic Surveillance and Civil Liberties," the nonpartisan Congressional Office of Technology Assessment
Office of Technology Assessment
The Office of Technology Assessment was an office of the United States Congress from 1972 to 1995. OTA's purpose was to provide Congressional members and committees with objective and authoritative analysis of the complex scientific and technical issues of the late 20th century, i.e. technology...
suggested legislation be considered for a surveillance oversight board. Congress disbanded this agency in 1995.
Clinton Administration
On July 14, 1994 President Clinton's Deputy Attorney General and later 9/11 Commission member Jamie GorelickJamie Gorelick
Jamie S. Gorelick is an American attorney, presently representing BP. She was Deputy Attorney General of the United States during the Clinton administration...
testified to the Senate Intelligence Committee
United States Senate Select Committee on Intelligence
The United States Senate Select Committee on Intelligence is dedicated to overseeing the United States Intelligence Community—the agencies and bureaus of the federal government of the United States who provide information and analysis for leaders of the executive and legislative branches. The...
that “The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes…and that the president may, as has been done, delegate this authority to the Attorney General.” This “inherent authority” was used to search the home of CIA spy Aldrich Ames
Aldrich Ames
Aldrich Hazen Ames is a former Central Intelligence Agency counter-intelligence officer and analyst, who, in 1994, was convicted of spying for the Soviet Union and Russia...
without a warrant. "It is important to understand," Gorelick continued, "that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities."
NSA warrantless surveillance controversy
On December 16, 2005, The New York Times printed a story asserting that following 9/11, "President BushGeorge W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
secretly authorized the National Security Agency
National Security Agency
The National Security Agency/Central Security Service is a cryptologic intelligence agency of the United States Department of Defense responsible for the collection and analysis of foreign communications and foreign signals intelligence, as well as protecting U.S...
to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying" as part of the War on Terrorism
War on Terrorism
The War on Terror is a term commonly applied to an international military campaign led by the United States and the United Kingdom with the support of other North Atlantic Treaty Organisation as well as non-NATO countries...
.
- Under a presidential order signed in 2002, the intelligence agency monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.
The revelation of this program caused a widespread controversy, with legal experts and politicians concluding that it violates the Foreign Intelligence Surveillance Act and other legal experts saying that the FISA law only applied to domestic to domestic calls and not to overseas calls and communications that involved a foreign intelligence threat. Bush administration officials such as the Attorney General defended the program by citing that this was a part of the justification that the Clinton administration used in its warrantless search of Aldrich Ames. They claimed that since Ames was spying for a foreign power, presidential power applied and FISA did not.
NSA call database
In May 2006, it was revealed that the Bush administration has also been compiling a databaseDatabase
A database is an organized collection of data for one or more purposes, usually in digital form. The data are typically organized to model relevant aspects of reality , in a way that supports processes requiring this information...
of telephone
Telephone
The telephone , colloquially referred to as a phone, is a telecommunications device that transmits and receives sounds, usually the human voice. Telephones are a point-to-point communication system whose most basic function is to allow two people separated by large distances to talk to each other...
calls created by the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
National Security Agency
National Security Agency
The National Security Agency/Central Security Service is a cryptologic intelligence agency of the United States Department of Defense responsible for the collection and analysis of foreign communications and foreign signals intelligence, as well as protecting U.S...
(NSA) with the cooperation of three of the largest telephone carriers in the United States: AT&T
AT&T
AT&T Inc. is an American multinational telecommunications corporation headquartered in Whitacre Tower, Dallas, Texas, United States. It is the largest provider of mobile telephony and fixed telephony in the United States, and is also a provider of broadband and subscription television services...
, Verizon and BellSouth
BellSouth
BellSouth Corporation is an American telecommunications holding company based in Atlanta, Georgia. BellSouth was one of the seven original Regional Bell Operating Companies after the U.S...
. All three companies were paid to provide the information to the NSA. It is speculated that the database contains over 1.9 trillion call-detail record
Call detail record
A call detail record , also known as call data record, is a data record produced by a telephone exchange or other telecommunications equipment documenting the details of a phone call that passed through the facility or device...
s of phone calls made after September 11, 2001. The database's existence has prompted fierce objections from those who view it as constituting a warrantless or illegal search, however the collection of third party information has been authorized by the USA PATRIOT Act
USA PATRIOT Act
The USA PATRIOT Act is an Act of the U.S. Congress that was signed into law by President George W. Bush on October 26, 2001...
and upheld by the courts.
FISA Court of Review Ruling in 2002
In 2002, in Re Sealed Case No. 02-001 the United States Foreign Intelligence Surveillance Court of Review examined all the significant appellate decisions. They noted all the Federal courts of appeal having looked at the issue had concluded that there was such constitutional power. Furthermore, if there was such power, "FISA could not encroach on the president's constitutional power." However, In Re Sealed Case "[took] for granted" that these cases are correct.
"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......
....Even without taking into account the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close. We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable." http://www.fas.org/irp/agency/doj/fisa/fiscr111802.html
The balancing test from Keith case referred to in the decision is a legal test that asks if the primary use of the warrantless search to collect foreign intelligence as per presidential authority, or was the primary use of the warrantless search to gather evidence to use in a criminal trial.
See also
- NSA warrantless surveillance controversyNSA warrantless surveillance controversyThe NSA warrantless surveillance controversy concerns surveillance of persons within the United States during the collection of foreign intelligence by the U.S. National Security Agency as part of the war on terror...
- Signing statementSigning statementA signing statement is a written pronouncement issued by the President of the United States upon the signing of a bill into law. They are usually printed along with the bill in United States Code Congressional and Administrative News ....
- Imperial PresidencyImperial PresidencyImperial Presidency is a term that became popular in the 1960s and that served as the title of a 1973 volume by historian Arthur M. Schlesinger, Jr. to describe the modern presidency of the United States...
- ECHELONECHELONECHELON is a name used in global media and in popular culture to describe a signals intelligence collection and analysis network operated on behalf of the five signatory states to the UK–USA Security Agreement...
- Information Awareness OfficeInformation Awareness OfficeThe Information Awareness Office was established by the Defense Advanced Research Projects Agency in January 2002 to bring together several DARPA projects focused on applying surveillance and information technology to track and monitor terrorists and other asymmetric threats to national security,...
- Foreign Intelligence Surveillance Act
- Unitary executive theoryUnitary executive theoryThe unitary executive theory is a theory of American constitutional law holding that the President controls the entire executive branch. The doctrine is based upon Article Two of the United States Constitution, which vests "the executive power" of the United States in the President.Although that...
- Cabinet noirCabinet noirCabinet noir was the name given in France to the office where the letters of suspected persons were opened and read by public officials before being forwarded to their destination...
- Executive Order 2604 - Woodrow WilsonWoodrow WilsonThomas Woodrow Wilson was the 28th President of the United States, from 1913 to 1921. A leader of the Progressive Movement, he served as President of Princeton University from 1902 to 1910, and then as the Governor of New Jersey from 1911 to 1913...
(text) - Executive Order 12036Executive Order 12036Executive Order 12036 is a United States Presidential Executive Order signed on January 24, 1978, by President Jimmy Carter that imposed restrictions on and reformed the U.S. Intelligence Community along with further banning indirect U.S. involvement in assassinations. The EO was designed to...
- Jimmy CarterJimmy CarterJames Earl "Jimmy" Carter, Jr. is an American politician who served as the 39th President of the United States and was the recipient of the 2002 Nobel Peace Prize, the only U.S. President to have received the Prize after leaving office...
(text) - Executive Order 12139 - Jimmy Carter (text)
- Executive Order 12949 - Bill ClintonBill ClintonWilliam Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...
(text)