The Liberty Papers

Over 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 ?