There's a new legal justification in town. Since Article I, the unitary executive, plenary Executive power, the AUMF modified FISA, and
Because I'm the President, that's why! don't seem to be cutting it as justification for domestic spying anymore, Attorney General Alberto Gonzalez has come up with yet another novel legal theory to bring the President's secret, illegal wiretapping of U.S. citizens into compliance with the law.
On The Charlie Rose Show last night, the AG ever-so-subtly argued that the President doesn't need a warrant to conduct these taps because of the "special needs" exception to the Fourth Amendment's warrant clause. No, he wasn't referring to the fact that the President is a little bit slower than all the other children; he was attempting to shoehorn one of the greatest violations of the privacy of American citizens in the history of our country into a very limited Fourth Amendment exception reserved for virtually innocuous government action.
Clearly, Gonzalez is hoping to slip this one in under the radar because this has got to be about the worst legal theory ever concocted.
The special needs exception to the warrant requirement was carved out by the Supreme Court for government actions that do not serve a traditional criminal law enforcement purpose. A warrant is not required, for instance, to perform random drug testing on student athletes, or to test the driver of a locomotive that just crashed; one is not needed to search the premises of a highly regulated business, such as a liquor store, for violations of the business regulations that apply; and one is not needed to set up a permanent road block near the national border to prevent illegal immigrants from entering the country.
The exception applies to government actions that are in some sense less than efforts to enforce the criminal law: No one goes to jail based solely on the results of the search; perhaps the subject of the search is kicked off the football team, suspended from his or her job, or the business receives a fine. The President's wiretapping program, by contrast, is an attempt to enforce something far greater than the criminal law, as it is clearly designed to lead to indefinite detentions outside the country (and the reach of the judiciary), possibly without ever being charged with a crime. Somewhere, a student athlete is quaking in his shoulder pads, fearing a trip to Guantanamo if his principal finds out about that joint he smoked before practice.
Under the special needs exception, the target of the warrantless search must be notified, the search must have a defined scope, and the officer performing the search must have limited discretion, all factors in the exception which the Attorney General - the nation's top lawyer - apparently forgot about since none of them seem to apply to the NSA. Either Gonzalez is putting us all on, or else this Attorney General and former Texas Supreme Court Justice knows less about the law than a second-year law student.