Why the Warrantless Wiretap Issue is so Complicated

This entry will be part five in my series covering what it is that makes modern constitutional issues so complicated. The goals and background of this series are laid out in my prior piece, Why Interpreting the Constitution is so Complicated.

You have probably all heard the stories, from one side or another. Either you have heard that the Bush Administration has gone wild, thrown out the Constitution, and is now listening in on phone conversations of average Americans, or you have heard that because of a very slow, unruly legal process, the Bush Administration needed the ability to listen in on phone conversations between Americans and people outside of America who are likely terrorists, without a warrant. As always, the truth remains somewhat in the middle. Most evidence has shown that the Bush Administration uses this power sparingly, only with those Americans strongly suspected of terrorist ties, and only with phone calls in which at least one participant is outside of the United States. However, the Bush Administration's arguments against warrant requirements fall short, as the FISA Court established in 1978, is actually capable of moving quite rapidly, and has only ever denied one warrant application in its 30 year history.

In other words, the mass panic about the Bush Administration listening in on your phone calls with your mother is probably unfounded. The claim that the Bush Administration needs this power because getting a warrant is too difficult and slow is also likely unfounded. Those issues aside, however, what we are concerned about in this blog series is the constitutional question: Is the Bush Administration's Warrantless Wiretap program Constitutional?

Like always in this series, it depends. What makes this issue unusual, however, is that one of our four constitutional interpretations gives a fairly clear answer, and another strongly implicates one answer, meaning your constitutional interpretation should greatly affect how you view this issue. There are two questions at issue here. First, does the government have the power to tap your phone conversations without a warrant? Second, if not, does the government have the right to tap your phone conversations with someone outside of the United States?

Textualism

Like always, we will start our analysis with Textualism. This is the most simple analysis. The Fourth Amendment reads "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."

The first thing you should notice is that the Fourth Amendment says nothing about telephone or wire conversations. You might think that natural, since telephones did not exist when the Fourth Amendment was written, but that is not sufficient to a Textualist. Remember, the Textualist perspective is that what is written in the Constitution is all there is to the Constitution. As a result, if telephones are to be protected by the Fourth Amendment, Textualists would argue an Amendment is necessary to do so.

You might argue that wiretaps violate one's person and one's effects, but this is not true either. Phone conversations are transmitted across public wires. As a result, while the phone itself may be an effect, and the person's voice may be one's person, the actual transmission, which leaves both the person and the phone and travels across wires, is neither part of one's persons or effects. As a result, under Textualist analysis, the government has the right to tap into any phone conversation it chooses without a warrant, and the second question is therefore mute. As a result, to a strict Textualist, the Bush Administration's program is clearly constitutional.

Original Intent

Original Intent is a little trickier here. After all, we have the Textualist point, but it is undeniable that the Founders were wary of an intrusive government. There are, however, a few things that make Original Intentionalists also think that the answer to question one is yes, and rendering question two moot. First is how the Fourth Amendment treats the closest equivalent of the time to telephone: mail. Nothing in the Fourth Amendment restricts the opening of mail by the government without a warrant. In the writing style of the time, one's "effects" and "papers" were those found in that individual's home. As a result, when these were sent out as mail, they were no longer under the Fourth Amendment's protection. This exclusion implies strongly that the Founders were ok with the government listening in on communications without a warrant. Additionally, who was the first President to use executive power to investigate private communications? George Washington, the very first President, and the President of the Constitutional Convention.

Ultimately, then, most evidence of the Founders' intent points to the idea that they would be ok with President Bush's warrantless wiretap program. As a result, most Original Intentionalists also find that the government has the right to listen in on phone conversations, and that the Bush Administration's program is Constitutional.

Historical Context

Historical Contextualism is a bit more complicated. As stated before, George Washington used his power to listen in on private conversations. Additionally, in wartime and times of national danger, like today, there has been a clear tendency to allow governments to investigate private communications without warrants. This was done during the Civil War, both World Wars, and even the Vietnam War.

However, the history has not always been clear regarding phone conversations. Generally, in every one of these situations, individuals knew that there was a chance that their conversations could be tapped into. Mail censorship was publicly announced during the Civil War and both World Wars, and the Johnson and Nixon Administrations also publicly admitted that they would be opening some mail. The Bush Administration, however, never announced this possibility, and the wiretaps were not known until well after the program had begun and the New York Times broke a story on the program.

The issue of both phone wiretaps and unexpected, unwarranted communications interceptions did not come before the U.S. Supreme Court until 1967. In that year, the Supreme Court heard Katz v. United States, where a man had been convicted of illegal gambling after having the phone booth he placed bets from be recorded by the FBI without a warrant. The Supreme Court threw out the conviction and ruled that any conversation where the participants have a "reasonable expectation of privacy" can only be tapped into with a warrant, including telephone conversations.

As a result, the Historical Contextualist answer to question one is no, the government cannot do warrantless wiretaps of just any phone conversation. The second question is tricky, however. Like the habeas corpus rights I described last week, the Fourth Amendment warrant right is not so much an individual right as it is a check against one branch (the executive) by another (the judiciary). As a result, its protection always applies on U.S. soil (and possible areas where the US has "complete military and civilian control") and practically never applies outside of U.S. soil. The issue of a phone conversation where one party is in the United States and another is not simply has never come up before. During wartime, often any mail sent out of the country was opened by rule. But this was all outgoing, international mail, not some, and writers knew this. As a result, there was no "reasonable expectation of privacy" as there is in a phone conversation.

In 1978, Congress weighed in on many of these issues when it set up the Foreign Intelligence Surveillance Act (FISA). FISA was passed largely in response to the Nixon Administration's abuse of domestic intelligence gathering, and also an expression of Congress's beliefs regarding the Constitution. FISA authorizes the government to tap, without a warrant, telephone conversations within the United States between two foreign citizens in the United States on official business for their country. This was designed primarily for counterintelligence purposes. Additionally, for wiretaps that did require a warrant (generally treated by the law as all other wiretaps, although the law does not specifically state this), FISA set up a secret court.

Congress recognized that the executive excesses had to be cut down on, but there were legitimate reasons to keep warrant applications out of the public record, which is impossible in civil court. While the Constitution requires that all civil trials be open to the public, the Constitution does not require that warrant procedures and other procedural matters outside of the trial setting be public. Congress had never utilized its power to create a secret court for such procedural matters until 1978, when it set up the FISA Court. The FISA Court, Congress hoped, would be fast, efficient, and be able to provide the necessary check on executive power while still keeping the existence and objectives of such wiretaps secret. In the 30 year history of the FISA Court, only one warrant application has ever been denied, and it is widely commended for its fast, efficient handling of cases.

The mishmash of all of this is somewhat complicated. History makes quite clear that both the Congress and the Supreme Court view telephone conversations as protected from warrantless search, unless there is not a reasonable expectation of privacy. Neither has ever addressed a phone conversations from within the United States to without, although the Congressional view has often been expressed at stating that with the success of the FISA Court, such warrantless wiretaps should not be allowed. So, the questions here are, now that the Bush Administration program is exposed, is it no longer reasonable for American citizens to expect their phone calls out of the country to be private, therefore meaning warrants are not necessary for these calls? Additionally, does the success of the FISA Court rid the Bush Administration's premise for their constitutional argument? Finally, when a right exists within the United States, but not without it, does the right exist with a phone conversation where one person is within the United States, and one person is without it? Those questions are for you to decide.

Functionalism

Functionalists largely argue that the separation of powers is more important now than ever. With the executive taking increasingly more power, things like warrants are even more important today than they were 200 years ago. Functionalists also argue that the real purpose of the Fourth Amendment is to allow people to go about their daily lives without harassment, and to prevent the government from casting unnecessarily wide nets with little to no evidence to back up its doing so. Finally, Functionalists argue, with the success of the FISA Court, there cannot even be an argument that such a program is necessary for the security of the country. If such a program is unnecessary, Functionalists argue, then there can be no justification for violating so basic a right as the right of an individual to have an undisturbed, private conversation.

Other Functionalists, however, take the opposing view. This is the viewpoint that the United States faces a threat in terrorism like it has never faced before. As a result, the Constitution must be adapted to allow for reasonable limitations on civil liberties in order to protect the safety of Americans. A wiretap on a phone conversation in which one party is outside the United States, when there is good reason to believe there may be a terrorist connection involved, seems like such a reasonable limitation. These Functionalists point out that the Bush Administration is not just randomly listening in on every phone conversation out there, but rather they are very selective in the conversations they do tap into.

So, the answer to question one from both these groups seems to be no, the government does not have the right to warrantlessly wiretap just any conversation. However, the first group of Functionalists will argue that the answer to question two is also no, leaving the Bush Administration's program unconstitutional while the second group will argue that the answer to question two is yes, leaving the Bush Administration's program constitutional.

So, which is it? Is the warrant requirement too important a part of the Constitution to bend with crises? Do some reasonable limitations need to be made to civil liberties in order to protect the country? The decision, as always, is yours.

Conclusion

The issue of the Bush Administration's Warrantless Wiretaps is much more complicated than either side likes to admit. Its constitutionality is also not simple. While if you are a Textualist or an Original Intentionalist, you probably lean towards the program being constitutional, Historical Contextualists and Functionalists have a much harder time with this issue. Which approach is right? That is up to you.