407 U.S. 297 (1972)
Facts: Defendant was charged with bombing CIA offices on a University of Michigan campus, but there is no claim that Ds had any connection with any foreign power. The government subjected Ds to surveillance by wiretap without obtaining a prior judicial warrant.
Issue: Whether the safeguards other than prior authorization by a magistrate would satisfy the 4th amendment in a situation involving national security (whether there was sufficient reasonableness of the search and seizure in question)
Holding: The wiretaps were an unconstitutional violation of the Fourth Amendment and as such must be disclosed to Ds. This established the precedent that a warrant needed to be obtained before beginning electronic surveillance even if domestic security issues were involved.
- Prior Judicial approval is required for the type of domestic surveillance involved in this case and that such approval may be made in accordance with such reasonable standards as the Congress may prescribe.
- Three Part holding
- (1) some sort of prior judicial approval is necessary (not after the fact judicial approval)
- (2) for internal/domestic security surveillance where the subject has no connection to foreign power
- (3) but not necessarily by same standards as the Fourth Amendment requires for ordinary crimes (codified in Title III)
- The court referenced the Omnibus Crime Control and Safe Streets Act (aka Title III), which was an attempt by Congress to promote more effective control of crime while protecting the privacy of individual thought and expression, authorizes electronic surveillance for specified classes of crimes, subject to prior ct order.
- Government Argued: Title III authorizes wire taps in ordinary criminal cases. “In excepting national security surveillances from the Act’s warrant requirement, Congress recognized the President’s constitutional authority to conduct such surveillances without prior judicial approval.”
- Court’s response: Says confers no such power, it does not give the President any authorization to conduct such surveillance absent a warrant. Merely a Congressional disclaimer and expression of neutrality leaving presidential powers where it found them, makes clear Act doesn’t legislate w/respect to national security surveillances.
- At most, it’s an implicit recognition that the President does have certain powers in specified areas (i.e. this section refers to protection against actual or potential attack or other hostile acts of a foreign power)
- Duty of Govt. to protect the Domestic Security: Art. II Section I: President has fundamental duty to preserve, protect, and defend the Constitution
- Implicit in duty is power to protect our government against those who would subvert or overthrow is by unlawful means. Discharge of this duty, through AG, may find it necessary to employ electronic surveillance.
- Given difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent.
Does this require a warrant and how is reasonableness determined?
- Argued: Special circumstances applicable to domestic security surveillances necessitate a further exception to the warrant requirement. Special circumstance result because:
- Secrecy and leaks
- Court says judges can hear things in camera, and are capable of keeping secrets (do it all the time with regular informants)/ Judges no less trustworthy than exec officials.
- Competency – courts not competent to evaluate a large number of complex and subtle factors.
- Court says regularly deals with complex issues, no reason to believe judges will be insensitive or uncomprehending
- Requirement for judicial review would obstruct President in the discharge of his constitutional duty to protect domestic security.
- Court recognizes constitutional basis for the domestic security role, but it must be exercised in a manner consistent with the 4th amendment.
Domestic security surveillance may involve different policy and practical considerations from the surveillance of “ordinary crime.” Given distinctions between Title III criminal surveillance and those involving domestic security, Congress may wish to consider differing standards for the later.