The Fourth Amendment's National Security Exception: Its History and Limits

63 Pages Posted: 2 Mar 2013 Last revised: 28 Oct 2013

See all articles by L. Rush Atkinson

L. Rush Atkinson

Center on the Administration of Criminal Law

Date Written: 2013

Abstract

Each year, federal agents conduct thousands of “national security investigations” into suspected spies, terrorists, and other foreign threats. The constitutional limits imposed by the Fourth Amendment, however, remain murky, and the extent to which national security permits deviations from the amendment’s traditional rules is unclear. With little judicial precedent on point, the gloss of past executive practice has become an important means for gauging the boundaries of today’s national security practices. Accounts thus far, however, have been historically incomplete, leading to distorted accounts of its precedential significance.

Dating back to World War II, national security investigations have involved warrantless surveillance and searches — conduct clearly impermissible in the traditional law enforcement context — authorized under the theory of a “national security” or “foreign intelligence” exception to the Fourth Amendment. Out of a sense of constitutional obligation, however, those who crafted this exception also circumscribed it. Information derived from warrantless searches was treated as inadmissible in subsequent trials, a caveat that tempered the exception but also inhibited the conviction of spies and other foreign agents. For decades, this “purely intelligence” restriction, as FBI Director J. Edgar Hoover called it, served as the constitutional boundary for agents working national security matters.

The “pure intelligence” precedent provides a useful lens for studying the modern surveillance programs now subject to constitutional litigation. Thus far, for example, it appears that no information gathered by recent warrantless surveillance has been used in criminal prosecutions. If continued, this adherence — conscious or inadvertent — to a new, de facto pure intelligence rule mimics the historical constraints placed on national security investigations. It therefore bolsters claims that certain contentious surveillance programs pass constitutional muster under the Fourth Amendment’s national security exception.

Keywords: Fourth Amendment, National Security, Foreign Intelligence Exception, Counterintelligence, Counterterrorism, FISA

Suggested Citation

Atkinson, Lawrence Rush, The Fourth Amendment's National Security Exception: Its History and Limits (2013). 66 Vand. L. Rev. 1343, Available at SSRN: https://ssrn.com/abstract=2226404

Lawrence Rush Atkinson (Contact Author)

Center on the Administration of Criminal Law ( email )

United States
202.415.7683 (Phone)

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