In a 1972 case, the Supremes held that even in the face of great harm, the President is not allowed to authorize warrantless surveillance.
U.S. v. U.S. District Court, 407 US 297
The case was regarding 3 suspects that were planning to bomb something in Ann Arbor, Michigan. The government surveillance was conducted without a warrant and the DOJ argued that should be acceptable because of the potential danger to national security. The Supremes rejected that argument.
There are some very interesting paragraphs in the case.
For example, I pulled out just two of them that seemed particularly relevant:
These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute.
And,
But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech.
UPDATE: Findlaw has some interesting annotations for the 4th Amendment. As mentioned by Kudo below, the courts seem to differentiate between government spying on citizens versus spying on foreign nationals. (Notice my shift from "surveillence" to "spying" -- spying sounds much more evil.) The courts have fairly consistently stated that for spying on citizens, they must have a warrant.
The following is quoted from Findlaw's annotations:
Warrantless ''National Security'' Electronic Surveillance --
In Katz v. United States, Justice White sought to preserve for a future case the possibility that in ''national security cases'' electronic surveillance upon the authorization of the President or the Attorney General could be permissible without prior judicial approval.
The Executive Branch then asserted the power to wiretap and to ''bug'' in two types of national security situations, against domestic subversion and against foreign intelligence operations, first basing its authority on a theory of ''inherent'' presidential power and then in the Supreme Court withdrawing to the argument that such surveillance was a ''reasonable'' search and seizure and therefore valid under the Fourth Amendment. Unanimously, the Court held that at least in cases of domestic subversive investigations, compliance with the warrant provisions of the Fourth Amendment was required.
Whether or not a search was reasonable, wrote Justice Powell for the Court, was a question which derived much of its answer from the warrant clause; except in a few narrowly circumscribed classes of situations, only those searches conducted pursuant to warrants were reasonable.
The Government's duty to preserve the national security did not override the gurarantee that before government could invade the privacy of its citizens it must present to a neutral magistrate evidence sufficient to support issuance of a warrant authorizing that invasion of privacy.
This protection was even more needed in ''national security cases'' than in cases of ''ordinary'' crime, the Justice continued, inasmuch as the tendency of government so often is to regard opponents of its policies as a threat and hence to tread in areas protected by the First Amendment as well as by the Fourth.
Rejected also was the argument that courts could not appreciate the intricacies of investigations in the area of national security nor preserve the secrecy which is required.
The question of the scope of the President's constitutional powers, if any, remains judicially unsettled. Congress has acted, however, providing for a special court to hear requests for warrants for electronic surveillance in foreign intelligence situations, and permitting the President to authorize warrantless surveillance to acquire foreign intelligence information provided that the communications to be monitored are exclusively between or among foreign powers and there is no substantial likelihood any ''United States person'' will be overheard.
UPDATE #2
I forgot to mention it here, but Bush's actions are entirely contrary to the fundamental principle underlying all of our law and that is the
Magna Carta.
The Magna Carta prohibits leaders from being above the law and provides for due process, trial by jury, speedy trial, etc.
By declaring himself above the law he is not only ignoring "the rule of law", but he is ignoring the Magna Carta which, since the year 1215, has stood as the basis for English law and then ours. Even the King may not do anything he pleases -- he must obey the law.
Perhaps we should send a copy of it to the White House.
I've put the case up on my website at:
www.ross4congress.org
Hopefully that link works. If not, send me an email and I will try to fix it.
Rhonda Ross For Congress, MI-09