AN UNREASONABLE BILL ON REASONABLE SEARCHES

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81M00980R000600230075-9
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 1
• Document Creation Date: December 15, 2016
• Document Release Date: May 24, 2004
• Sequence Number: 75
• Content Type: NSPR

Robert McClory
An Unreasonable Bill
On Reasonable Searches
I read with interest The Post's April The Fourth Amendment, adopted
14 editorial regarding a bill to regulate soon after our Constitution was rati-
national security electronic surveil- fied, was framed to prevent the new
lance. However, the editorial confused central government from acting in an
a number of key issues, and by that overbearing fashion to quell domestic
confusion came to a less than proper political activities. It was never eontem-
conclusion. plated that that restriction would be
It is true that past administrations used to inhibit executive branch ac-
have insisted that there is a constitu-
tional difference between searches for
intelligence data and for evidence of a
crime," and therefore no warrant is re-
quired to authorize the former. But one
The writer, a representative from Il-
linois, is the ranking Republican on the
Judiciary Committee and the Intelli-
gence Committee's legislation subcom-
mittee.
must go on to note that three U.S.
courts of appeals-the only ones to
have directly ruled on this issue-have
confirmed that a warrant is not a pre-
requisite to the gathering of foreign in-.
telligencei The Fourth Amendment
does not itself require, a warrant in all
cases. Rather, it ensures "the right of
the people to be secure ... against un-
Judge Albert V. Bryan Jr. stated ~in
his recent opinion in the Humph-
rey/Truong espionage case, to require
a warrant for foreign-intelligence elec-
tronic surveillance "would frustrate
the president's ability to-conduct af-
fairs in a manner that best protects the
security of our government."
Because our government needs accu-
rate information to protect our country
from the hostile acts of foreign powers,
it is necessary to. engage in electronic
surveillance of the agents of such pow-
ers. That is true if the agents are foreign-
ers, as well as in the rare situation that
an American citizen is working clandes-
tinely for a foreign power. It would be
inappropriate to go beyond the Fourth
Amendment mandate by requiring a ju-
dicial role in such matters, for the issues
involved are not susceptible to right-or-
issues involved "are delicate [and] com-
plex, and involve large elements of
prophecy. They are and should be
undertaken only by those directly re-
sponsible to the people whose welfare
they advance or imperil."
Finally, it should be seen that by shift-
ing from the president to the judiciary
the responsibility to authorize foreign-
intelligence electronic surveillance, the
courts become a buffer to executive ac-
eountability. If an intelligence, agency
wants to use electronic surveillance for
an improper purpose, an application can
be made to a court for authorization..
The worst that can happen during the
secret proceding is that the application.
will be denied. But, it appears inevitable
that some judges-perhaps bygranting
too much deference to the intelligence
community-might give approval to
abusive actions. No matter ht:w clear
the mistake might appear upon a more
detailed analysis, no executive brancia.
official could be called to task for the
abuse. Anyone questioned need only
make use of the court order as a shield..
The legislative branch is the proper
arm of government to serve as a check
on executive discretion in this area. In
deed, President Carter endorsed the
-5 _~%'LaMyi- reasoning. concept of strong congressional over
issue then becomes what is reasonable Decisions in this area demand con- sight when he backed the creation in
in the foreign-intelligence arena. Alex trade-offs and difficult balancing both the House and Senate of the Intel,
When the executive branch is truly of , priorities. Again quoting Judge' ligence committees. Adequate privacy
acting to gather foreign intelligence, protection can he provided without .re--
even without a warrant it is acting Bryan, "It is not at all certain that a ju- sort to the courts by a law that would
within Fourth Amendment proscrip- dicial officer, even an extremely well.. explicitly regulate when the govern.
tions because it is doing something that informed one, would be in a position to ment could engage in foreign-intelli-
is constitutionally reasonable. The evaluate the threat posed by certain ac- gence electronic surveillance. Cornpli
Fourth Amendment was adopted as a tions undertaken on behalf of or in col- ante with those statutory provisions
reaction to the wide-open, general laboration with a foreign state." would be monitored by the i ongres-
searches allowed under the British sional intelligence committees, an'
writs of assistance and general war- As envisioned by the framers of our anyone found to have committed a
rants. Those writs, which were first is- Constitution, the legislative and execu-
sued to enforce import restrictions, tive were to be the political branches, violation would be subject to civil and
were ultimately used by the British subject to the electorate from time to criminal liability. That e approach, ens-.
government to repress political dissent time. On the other hand, the framers bodied in an alternative measure that I
of Englishmen in the colonies. Insulated the judicial branch from po- have sponsored (H.R. 9745), would bet
t
b
l
er
a
ance the right of Americans to
litical considerations by granting
judges life tenure. The former two are be protected from overreaching activi-
to formulate policies, while the courts ties of their own government and from
are assigned the task of resolving cases the activities of any foreign govern-,
and controversies by making reference ments that could be inimical to the
to those policies. That structure should very existence of the United States.
be abided by-and with particular good
reason-in the area of national secu-
rity. As Justice Jackson wrote for the
Supreme Court in Chicago Southern V.
Waterman Steamship Company, the
Approved For Release 2004/07/08 : CIA-RDP81 M00980R000600230075-9