RSS 2.0 FeedA Civil Liberties Thought Experiment
by Doug MataconisOver at Atlas Blogged, Wulf puts forward an interesting civil liberties/intelligence gathering thought experiment:
Suppose the CIA wants to eavesdrop on Vladimir Putin. They don’t need a warrant. They just listen in on his phone conversations and they are legally within bounds as far as US laws are concerned. Vladimir calls Kim Jong Ill, they listen in. Vladimir calls Osama bin Laden, they listen in. Everything is kosher so far. And then Vladimir calls me. The CIA does not have the legal authority to eavesdrop on my phone calls, but they do have the legal authority to eavesdrop on Putin’s. Can they legally listen to that phone call Putin has with me?
As Wulf points out, if it were a situation where the police had a warrant approved by a judge to eavesdrop on my conversations, and I happened to call you, they would be able to listen to our conversation even though there hasn’t been issued against you.
The hypothetical, though, is slightly different. The CIA is eavesdropping on Putin’s conversation not as part of a law enforcement investigation, but as part of an intelligence gathering operation. During the course of that investigation, they discover that a foreign target (and Putin is only one example, let’s say it’s bin Laden, or Mahmoud Ahmadinejad, or the head of Chinese Intelligence) is communicating with someone in the United States. Should they be required to get a warrant to listen in on a conversation between someone in a foreign country and someone in the United States, especially when that conversation originated in a foreign country ?
From a legal point of view, it frankly depends on the purpose to which the information the government might obtain would be used. If it’s not going to be used in a criminal prosecution, then the fact that Fourth Amendment might have been violated isn’t going to matter. The primary effect of a Fourth Amendment violation is that any evidence obtained in violation of cannot be used in Court — the so-called Exclusionary Rule. If the evidence is never going to be used in Court, or if the domestic recipient of the phone call isn’t a target of the investigation, then the presence or lack of a warrant is, in some sense, irrelevant.
Furthermore, if all the CIA is doing is gathering intelligence, and perhaps acting on said intelligence outside the borders of the United States, then there’s a strong argument that the Fourth Amendment doesn’t even apply.
As Wulf points out, this is what the FISA debate is all about, and the question really is this — if it’s okay for local law enforcement to listen in on a phone conversation between you and I when they have a warrant to listen to my phone calls (but not yours), then why isn’t it similarly acceptable for the CIA to listen in on your conversation with Vladimir Putin when they don’t need a warrant to tap Putin’s phone ?
I think the analogy to a wiretap warrant in a criminal investigation works well enough. In each case the government agency involved is legally monitoring the calls of their target.
I’m not so sure that the fourth amendment exclusionary rule comes into play either regarding the CIA. The CIA does not do domestic law enforcement. Any information they gather on a domestic party to a foreign target’s phone call could only be used if and when they passed that information to domestic law enforcement – I’d assume the FBI.
Then the fourth amendment would come into play and the only use the FBI could likely make of the CIA’s information is to use it to convince a judge to approve a warrant to tap the domestic target.
When you throw FISA into the mix, I believe that would allow intelligence agencies to get a warrant to tap a domestic target with foreign intelligence value. Any intelligence gained under that warrant should certainly be admissible in court.
Comment by Stephen Macklin — October 14, 2007 @ 8:41 amPart of our problem here is the old wall we have put between the CIA and the FBI. That wall had two parts: domestic vs foreign and espionage vs criminal. Our problem is that we refuse to define terrorism as a form of crime; instead we treat it as sometimes criminal, sometimes military, sometimes espionage. With such a confused characterization of terrorism, it’s no wonder that we have a confused response to it.
This confusion leads to especially repugnant results when the government claims immunity to civil suits because such suits would reveal state secrets. It seems to me that we should clearly define the legal status of terrorism as a criminal activity and then apply the well-developed standards of criminal law to deal with it. Our current mishmosh of approaches just begs for abuse.
Comment by Chepe Noyon — October 14, 2007 @ 10:01 am[...] Doug Mataconis seems to think so: The [Putin] hypothetical, though, is slightly different [from the Rammage hypothetical]. The CIA is eavesdropping on Putin’s conversation not as part of a law enforcement investigation, but as part of an intelligence gathering operation. During the course of that investigation, they discover that a foreign target (and Putin is only one example, let’s say it’s bin Laden, or Mahmoud Ahmadinejad, or the head of Chinese Intelligence) is communicating with someone in the United States. Should they be required to get a warrant to listen in on a conversation between someone in a foreign country and someone in the United States, especially when that conversation originated in a foreign country ? [...]
Pingback by A Second Hand Conjecture » A FISA Gedankenexperiment — October 15, 2007 @ 3:55 pmExactly. The fourth is not the only ammendment being compromised. Please read “On a Hill They Call Capital” by Matt Carson. I recently read it and am ready to join the “revolution” myself.
Comment by landerson — October 16, 2007 @ 3:29 pm