All Enemies, Foreign and Domestic: Erasing the Distinction between Foreign and Domestic Intelligence Gathering under the Fourth Amendment

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INTRODUCTION....................344

I. THE EVOLUTION OF THE WARRANT AND PROBABLE CAUSE REQUIREMENTS ......... 348

H. THE POLICY RATIONALES FOR WARRANTS AND PROBABLE CAUSE IN THE DOMESTIC INTELLIGENCE-GATHERING CONTEXT ....................355

A. Warrants Provide a Neutral and Detached Decisionmaker ....................356

B. Warrants Prevent Overdeterrence....................359

C. Warrants Protect Minority Groups from Discrimination....................364

D. Warrants Prevent Stifling of Political Dissent....................368

E. Warrants Protect Against Police Perjury and Judicial Bias....................371

III. BETTER SOLUTIONS TO INTELLIGENCE-GATHERING ABUSE ....................374

A. Limitation on the Use of Seized Evidence for Purposes Other than Domestic Intelligence or Counterterrorism ....................375

B. Require Politically Accountable Executive Officials to Approve All Warrantless Domestic Surveillance....................377

C. Harsh Penalties for Those Who Abuse Their Authority....................378

D. Expanded Whistleblower Protection for Insiders Who Expose Illegal Surveillance....................378

E. Oversight and Reporting Requirements....................379

F. Expanded Administrative Remedies for Violations of the Fourth Amendment....................379

G. Other Solutions....................380

CONCLUSION....................381

INTRODUCTION

Imagine two scenarios. In the first, an American citizen with a connection to al Qaeda conspires with his cohorts, also American citizens, to attack the United States using biological warfare agents. He surveils potential sites for the attack-a high-rise tower, an athletic stadium, a government facility-and acquires some of the materials needed to carry out the attack. Meanwhile, his coconspirators are busy in their makeshift lab concocting the biological agent to be used in the attack. The members of the group communicate with each other and with their financial and ideological backers overseas via cell phone, email, and in person. They live in an American city, biding their time as they wait for their superiors to give them the final go-ahead.

The second scenario is identical to the first, except that no overseas superiors direct and finance the operation. Instead, our terrorist cell is out on its own, unconnected to-though ideologically compatible with-al Qaeda. Even without its master in a foreign land, the group has the resources necessary to carry out the attack. In effect, the threat posed in both scenarios is identical.1

Despite the indistinguishable threats posed by these two groups, the United States government is substantially more likely to thwart an attack by the group in the first scenario. The President has greater authority to conduct counterterrorism surveillance and intelligence gathering against groups with foreign connections than against groups with no foreign connections. This dichotomy derives from the Supreme Court's decision in the Keith case, which held that a warrant is required for a domestic intelligence search to comport with the Fourth Amendment.2 Thus, unlike investigations into groups with foreign connections, domestic terrorist investigations are subject to far more stringent requirements under the Fourth Amendment.3

Over the last few years, much of the scholarship on the Fourth Amendment and intelligence gathering has focused on foreign intelligence gathering within the United States.4 President Bush's January 2005 authorization of warrantless electronic surveillance of al Qaeda-related communications with overseas connections has generated a wealth of commentary, most of it analyzing whether such conduct violates the Foreign Intelligence Surveillance Act (FISA),5 or whether Congress can constitutionally limit the President's power to conduct foreign intelligence surveillance within the United States. …