The Bush Administration's Terrorist Surveillance Program and the Fourth Amendment's Warrant Requirement: Lessons from Justice Powell and the Keith Case

Abstract

This article was written for a symposium issue of the University of California at Davis Law Review on the fortieth anniversary of Katz v. United States. The article analyzes the Bush Administration's claim that the President has the authority to order warrant less electronic surveillance of communications between American citizens and persons abroad suspected of having connections with foreign terrorists groups. When evaluating this claim, my article focuses on a case that could be characterized as more constitutionally robust and stronger Katz. That case is United States v. United States District Court, also known as Keith. The Keith ruling held that the President did not have the power to authorize warrant less wiretaps in national security cases. Today, in light of the war on terror and the Bush Administration's claim of inherent authority to conduct warrant less electronic surveillance for foreign intelligence purposes, the Keith decision is a more pertinent and significant case than Katz.

The Keith case, a product of the Burger Court, merits our attention today for several reasons. One remarkable aspect about Keith, at least in retrospect, is not just the result which, at the time, the press and public saw as stunning, but also the fact no Justice voted to uphold the government's claim that warrant less wiretaps in national security cases were reasonable under the Fourth Amendment.

Another important aspect about Keith is that it not only rejected President Nixon's claim, but it did so in a manner that unmistakably embraced the warrant requirement, a core precept of the Warren Court's Fourth Amendment jurisprudence.

Finally, understanding the scope and rationale of Keith is important today because its logic is equally applicable to the Bush Administration's claim that it has the power to monitor telephone and e-mail communications between American citizens and persons suspected of having connections with foreign terrorist organizations. The Administration has argued that the Fourth Amendment's warrant requirement does not apply to the Terrorist Surveillance Program conducted by the National Security Agency. When evaluating this claim, it is instructive to recall how the Keith Court responded to President Nixon's similar claim that he had the power to authorize warrant less wiretaps in domestic security scenarios: the Court rejected it.

What Keith said about the President's authority in domestic security cases equally applies to warrant less electronic surveillance inside the nation's borders of American citizens whom the government suspects have ties to terrorist groups. In fact, there is no principled, constitutional difference between the Keith case and what the Bush Administration has done with the Terrorist Surveillance Program.

Keywords: Katz v. United States, warrantless electronic surveillance of American citizens, presidential authority to order warrantless surveillance, terrorism, United States v. United States District Court, a.k.a., Keith, Fourth Amendement, warrantless wiretaps, Terrorist Surveillance Program

JEL Classification: K39, K40, K42, K49