The House Extends Executive Search Power
On Saturday, the House approved a temporary bill (lasting 6 months) that will allow our government - without a warrant, to eavesdrop on foreign phone calls, emails, and other communications that pass through the United States. More specifically, the bill will give the Executive Branch the right to wiretap Non-United States citizens, when it “reasonably believes” the communication is coming from a suspected terrorist who is outside of our nation’s borders.
In the great Fourth Amendment (Unreasonable Searches and Seizures) debate, which tries to balance civil liberties with security, I tend to be more in favor of protecting our civil liberties. This is because I emphatically believe that a restrained and dependant life hampered by an intrusive government is hardly worth protecting – Kind of like the New Hampshire motto: “Live Free or Die.” Despite this, as a Constitutionalist who believes in original intent, I for the most part, agree with the Bill because it does not violate a protected interest.
Take a look at the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…
Because the early Court interpreted “unreasonable searches” to mean any search without probable cause, and because it is a safe bet that most of these wiretaps will be without probable cause, there is little doubt there will be some unreasonable wiretaps. Despite this, the Fourth does not have unlimited reach in its protections. It only protects the “people.” To wit, it protects American citizens and those who are “part of the national community or who have otherwise developed sufficient connections with this country to be considered part of that community.” There is some debate as to what this description means, but I guarantee it does not cover non-citizens residing outside of the United States.
The one legitimate concern over this Bill is that it could grant government searches lacking probable cause over American citizens who are overseas. This concern has merit, but there is a safeguard, which requires the government to reasonably believe it is not eavesdropping on a person classified under the “people.” Sure this safeguard isn’t much, and I think when the Bill is reevaluated in six months, Congress should consider elevating this reasonableness standard to probable cause. Even if this is done, there is a chance, like with any government search that there will be searches on the innocent; however, this is unavoidable, and this is a necessary evil the Founding Fathers understood when they took their position on the sliding scale between security and civil liberties.