Fourth Amendment Takes a Holiday?

The Congress has gone home for the holidays, leaving undecided the Administration’s high priority effort to immunize telecommunications companies from responsibility for wiretapping without a warrant since 2001. In 2005 the New York Times disclosed the Administration’s program of tapping international phone communications, including communications with people in the U.S. and communications with Americans who are abroad. The Fourth Amendment to the Constitution requires a warrant based on probable cause to support a wiretap, yet the Administration concluded that its implied war powers permitted it to proceed without any judicial control. The Congress, in 1975 legislation and again since the New York Times disclosure, has provided that a warrant is needed to initiate a wiretap involving American persons (including citizens and resident aliens). The warrant may be obtained from the secret FISA court, but even this step was bypassed by the intelligence agencies. The American Bar Association has denounced the warrantless wiretap program. In its Report 302 it states: The government’s argument that the President and the NSA have limited the program to circumstances where they have “reason to believe” that at least one party to the communication is a member of Al Qaeda or organizations affiliated with or supporting Al Qaeda does not provide reasonable protections against unjustified invasions of the privacy of innocent persons or a safeguard against abuse from a long-term program. The “very heart” of the Fourth Amendment requirement is that the judgment of whether the evidence justifies invasion of a citizen’s privacy be made by a “neutral and detached magistrate.” United States v. United States District Court, 407 U.S. at 316 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 453 (1971)). The government’s wiretaps over the past six years were done (at least some of the time) by phone companies who should have known better. Immunizing the telecommunications companies from the effects of their conduct, past, present or future, sets a very wrong precedent. The phone companies are the gatekeepers, and they are on full notice, since Watergate days and before, that when they place a tap without a warrant - at the behest of the government or otherwise - they are acting illegally. Perhaps the members of the Senate will gain the courage over their Christmas recess to protect and uphold the Constitution, and to kill this undesirable piece of legislation when they get back to Washington.