June 13, 2011 | National Review Online

Dems Unserious on Surveillance

The legal basis for protecting trial lawyers just got even weaker.

It’s now been more than two months since the Pelosi Democrats — following their pied pipers at MoveOn.org and the ACLU, as well as their party’s two presidential contenders — gutted the foreign surveillance authority vital to our national security.

The controversy stems from the Democrats’ refusal to grant immunity from suit to telecommunications companies that cooperated with the Bush administration’s warrantless monitoring of cross-border communications during the post-9/11 threat.  The 9/11 atrocities, you may recall, involved foreign terrorists whose exertions inside the United States were choreographed by their jihadist superiors outside the United States.

Huge litigation fees are at stake for the Democrats’ trial-lawyer friends.  The Left’s most reliable donors have filed several bogus lawsuits seeking billions from the telecoms and the government.  (To repeat, though I am a longtime critic of our nation’s surveillance laws, for the sake of full disclosure I note that my wife works for Verizon.)

So House Democrats made a cold calculation in February when they allowed the foreign intelligence collection powers of the Protect America Act to lapse.  They elevated the trial lawyers’ interest in a big payday over the public interest in aggressive information gathering against people trying to kill Americans.  They figured, with enough bombast about the “rule of law,” few would notice that they were vesting our terrorist enemies overseas with unprecedented U.S. privacy rights.

The Left’s portrayal of President Bush as an imperious lawbreaker has always been the stuff of farce.  To be sure, the warrantless surveillance program operated for a time outside the judicial supervision imposed by the 1978 Foreign Intelligence Surveillance Act.  FISA, however, did not and could not divest the commander-in-chief of his constitutional power to protect the nation from foreign threats.  That was the position of the Democrat (President Carter) who signed FISA into law, and of the Democrat (President Clinton) who approved an amendment extending FISA to physical searches.

Moreover, it is the position of the highest judicial authority created by FISA itself.  It is interesting that, though Democrats wax exuberant over the ill-conceived FISA regime, these testimonials never get around to mentioning the Foreign Intelligence Surveillance Court of Review — the federal appellate tribunal chartered by FISA to rule on disputes over the law’s application.  That’s because in 2002, even though FISA had been on the books for nearly a quarter-century, the Court of Review explained:

The [Fourth Circuit in the Truong case], as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information….  We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

And now, the Democrats legal position has become even more untenable, thanks to an unlikely Bush ally:  the U.S. Court of Appeals for the Ninth Circuit, generally regarded as the nation’s most liberal.  In a significant Fourth Amendment decision on Tuesday, a three-judge panel unanimously held that laptop computers, including the e-mail communications stored in them, may be searched without a warrant if a person attempts to carry them into or out of the United States.

The decision, called United States v. Arnold, was a straightforward application of the border search doctrine.  The Supreme Court has long held that the executive branch does not require a warrant, or even any basis (like “reasonable suspicion” or “probable cause”), to scrutinize persons or items traversing our borders.  This search power is based, as the justices put it in 1979, on our nation’s “inherent sovereign authority to protect its territorial integrity.”

The defendant in the Ninth Circuit case was trying to bring child pornography into the country.  He attempted to convince the court that because computers contain “expressive content,” a warrantless border search infringed not only his Fourth Amendment privacy but his First Amendment free-expression rights.

The panel would have none of it.  Importantly, in rejecting this claim, Arnold adopted the analysis of an earlier Fourth Circuit ruling in a case called United States v. Ickes.  As the Ninth Circuit recounted, the Ickes court declined to carve a First Amendment exception to the border-search doctrine for, among other reasons, “such a rule would … protect terrorist communications[,] which are inherently ‘expressive.’”  (Other internal quotation marks omitted.)

Only Democrats, it appears, are determined to protect terrorist communications.  And they are doing it against the accumulating weight of legal authority.  The Supreme Court has held for decades that international mail — i.e., communications which cross our borders — may be searched without a warrant.  In a 1977 decision (United States v. Ramsey), Chief Justice Rehnquist explained, “There is no reason to infer that mailed letters somehow carry with them a greater expectation of privacy than do letters carried on one’s person.”

Similarly, there is no reason to infer that the e-mailed or wired communications of any person, much less a foreign terrorist, carry a greater expectation of privacy than would the very same communications if the person instead physically brought them into the country, stored on a laptop.  Indeed, the physical search is more intrusive and hence more violative of privacy.  Still, the courts have uniformly held no warrant is necessary.  The national security interest is simply too strong.

But the purported illegality of such warrantless searches is the fig leaf by which today’s Democrats are justifying the trial lawyers’ suits — notwithstanding the teaching of the Foreign Intelligence Court of Review, the position of prior Democrat administrations, the jurisprudence of border searches, and that line of authority’s direct application to electronic and mailed communications, which are routinely searched without judicial warrants.

The Bush administration’s warrantless surveillance program, which monitored the cross-border communications of suspected terrorists, aimed to protect the American people against a reprise of 9/11.  Yet, in the world according to today’s Democrats, the government can search your communications with impunity when you cross the border, but it needs to get court permission to search Osama bin Laden’s because he, unlike you, sent his by clicking the “SEND” icon or dialing the phone.

Who says they’re not serious about national security?

Andrew C. McCarthy is author of Willful Blindness: Memoir of the Jihad and director of the Center for Law and Counterterrorism at the Foundation for the Defense of Democracies.

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