National Security Law Outline

National Security Law
Professor Jonathon Hafetz
Fall 2010
Seton Hall Law
 
I.                    Searches and Surveillance: National Security versus Civil Rights
a.       The Fourth Amendment and National Security
                                                               i.      The Fourth Amendment Framework
1.      Purpose
a.       Designed to protect against overreaching in investigations of criminal enterprises by providing
                                                                                                                                       i.      The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures
                                                                                                                                     ii.      Requires acquisition of a search warrant
2.      Problem
a.       Tension between security and individual liberties
                                                                                                                                       i.      Individual rights are less protected in the face of national security threats
                                                                                                                                     ii.      Rationale – w/o security there are no liberties
3.      Katz v United States—SC held that warrantless searches are per se unreasonable subject to only certain limitations if reasonable including
a.       Searches incident to arrest (US v Robinson)
b.      Automobile searches (Michigan v Long)
c.       Stop and frisk searches (Terry v Ohio)
d.      Searches of people or things entering and leaving us (US v Hernandez)
e.       Searches of boats on navigable waters (US v Marquez)
f.        Searches of airplanes (US v Negro)
g.       Searches to prevent railroad accidents that cause great human loss (Skinner v Railway)
                                                             ii.      A National Security Exception
1.      Foreign Intelligence Surveillance Act of 1977
a.       Katz v United States –SC held that the 4th amendment’s warrant provision DID apply to electronic surveillance but does not extend to cases involving national security.
b.      United States v. United States District Court (Keith)
                                                                                                                                       i.      Facts –US charged 3 individuals with conspiracy to destroy government property. One of the defendants, Larry ‘Pun’ Plamondon, was also charged with the dynamite bombing of an office of the CIA in Ann Arbor, Michigan. In response to a pretrial motion by defense for disclosure of all electronic surveillance information, Nixon’s attorney general, John Mitchell, claimed he authorized the wiretaps pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 and was not required to disclose the sources. Though warrantless, the act allows for an exception to prevent the overthrow of the government and when “any other clear and present danger to the structure or existence of the Government” exists. The Government contended that since the defendants were members of a domestic organization attempting to subvert and destroy it, this case fell under the exception clause.
                                                                                                                                     ii.      Procedural Posture –Judge Damon Keith of USDC disagreed and ordered the Government disclose all of the illegally intercepted conversations to the defendants. The Government appealed, filing a petition for a writ of mandamus with the Court of Appeals for the Sixth Circuit to set aside the order. The Sixth Circuit also rejected the Government’s arguments and upheld the lower court decision. SC grants writ.
                                                                                                                                   iii.      Decision and Holding –The Supreme Court held that the wiretaps were an unconstitutional violation of the Fourth Amendment and as such must be disclosed to the defense. This established the precedent that a warrant needed to be obtained before beginning electronic surveillance even if domestic security issues were involved.
                                                                                                                                   iv.      Analysis – Note that the decision applied only to domestic issues; foreign intelligence operations were not bound by the same standards. The governing law for electronic surveillance of “foreign intelligence information” between or among “foreign powers” is the Foreign Intelligence Surveillance Act (FISA) of 1978.
                                                                                                                                     v.      Title III (Ordinary Criminal) Electronic Surveillance –requires application for authorization to conduct surveillance containing an explanation of everything
                                                                                                                                   vi.      US v Brown –president may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence.
                                                                                                                                 vii.      US v Butenko –3rd circuit held that electronic surveillance conducted without a warrant would be lawful so long as the primary purpose was to obtain foreign intelligence information.
                                                           iii.      Foreign Intelligence Exception?
1.      United States v. Ehrlichman
a.       Facts –Five defendants stand indicted for conspiring to injure a Los Angeles psychiatrist in the enjoyment of his Fourth Amendment rights by entering his offices without a warrant for the purpose of obtaining the doctor’s medical records relating to one of his patients, a Daniel Ellsberg, then under Federal indictment for revealing top secret documents. They now claim that broad pretrial discovery into the alleged national security aspects of this case is essential to the presentation of their defense, in that it will establish (1) that the break-in was legal under the Fourth Amendment because the President authorized it for reasons of national security, and (2) that even in the absence of such authorization the national security information available to the defendants at that time led them to the good-faith, reasonable belief that the break-in was legal and justified in the national interest.
b.      Decision and Holding – court found
                                                                                                                                       i.      The search of the psychiatrist’s office was clearly illegal under the unambiguous mandate of the fourth amendment