Intelligence Law School - Course 1: Lesson 2.4.4 Misuse of Obiter Dicta in U.S. Intelligence Law


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LESSON 2: PRIMARY LEGAL AUTHORITY IN THE FEDERAL SYSTEM


2.4 Judicial Decisions


2.4.4 Misuse of Obiter Dicta in U.S. Intelligence Law


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2.4.4 Misuse of Obiter Dicta in U.S. Intelligence Law

2.4.4.1 Holding vs. Obiter Dicta in the Keith Case: United States v. U.S. District Court, 407 U.S. 297 (1972)

To give you an example of where dicta is often abused in U.S. intelligence law, there is a critically important Supreme Court case decided back in 1972 called United States v. U.S. District Court.[1]

This case is popularly known as the “Keith case.”

The Keith case is a landmark Supreme Court decision declaring that warrantless domestic electronic surveillance is unconstitutional even when the government’s investigation involves national security.[2]

Ø  Facts: The Keith case involved criminal cases against individuals for committing and conspiring to commit various national security related crimes, including the dynamite bombing of a CIA office in Ann Arbor, Michigan.[3]

o   The government engaged in warrantless surveillance in order to gather evidence on the perpetrators, and the Supreme Court found this unconstitutional.[4]

o   That was the holding of the case and it was unanimous.[5]

o   All eight justices hearing the case concurred in the finding that the warrantless surveillance was unconstitutional.[6]

§  In the dicta, however, Justice Powell commented briefly that the Court’s decision extended only to the type of domestic terrorism that was actually at issue in the case.[7]

§  He opined that there may be some situations involving foreign powers where surveillance might be approved through different, less rigorous standard.[8]

§  That wasn’t a case holding, just opinion about what might come about in the future.[9]

§  In dicta, Justice Powell also made recommendations to Congress about the procedures he felt might be sufficient.

§  Again, this recommendation wasn’t a holding, it was just dicta.[10]

§  The holding of the case was that warrantless domestic surveillance was an unconstitutional violation of the Fourth Amendment.[11]

§  Still, despite this unambiguous holding of the Court many lawyers in the Intelligence Community have seized upon the ambiguity in Justice Powell’s dicta; they often cite it to try to assert that the Court had somehow approved warrantless surveillance in foreign intelligence cases.[12]  

§  That is not what the Court held in the Keith Case, not one bit.[13]

§  The Court held precisely the opposite, and it did so unanimously.[14]

§  Just because the Court contemplated the possibility of a different holding under different circumstances, that was not the holding of the case.

§  It’s highly unethical in legal practice to cite dictum that is contrary to the Court’s actual holding and try to pass it off as binding precedent.

§  If you did that in a brief submitted to a court, the judge would sanction you big time.

 

2.4.4.2 Judicial Intelligence vs. The Intelligence Exceptionalism Defense

The dicta in the Keith Case are also notable because the Court rejected the dubious claim often asserted by intelligence professionals that intelligence matters are far too complex for judges to comprehend.[15]

The Supreme Court firmly rejected this argument.[16]

The Court pointed out that federal courts deal with matters a thousand times more complicated than intelligence gathering all the time.[17]

 

The Court’s sharp rejection of this claim astutely suggested that if an intelligence agent honestly feels that the matters supporting his request for a search warrant are too complex for him to explain effectively in writing to a magistrate, then maybe it’s because his request is unsupported by concrete evidence sufficient to satisfy the Fourth Amendment’s probable cause requirement.[18]

 

Footnotes

[1] United States v. U.S. District Court, 407 U.S. 297 (1972) (Official Case Syllabus: "The United States charged three defendants with conspiring to destroy, and one of them with destroying, Government property.  In response to the defendants' pretrial motion for disclosure of electronic surveillance information, the Government filed an affidavit of the Attorney General stating that he had approved the wiretaps for the purpose of "gather[ing] intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government." On the basis of the affidavit and surveillance logs (filed in a sealed exhibit), the Government claimed that the surveillances, though warrantless, were lawful as a reasonable exercise of presidential power to protect the national security. The District Court, holding the surveillances violative of the Fourth Amendment, issued an order for disclosure of the overheard conversations, which the Court of Appeals upheld.  Title III of the Omnibus Crime Control and Safe Streets Act, which authorizes court-approved electronic surveillance for specified crimes, contains a provision in 18 U. S. C. § 2511 (3) that nothing in that law limits the President's constitutional power to protect against the overthrow of the Government or against "any other clear and present danger to the structure or existence of the Government." The Government relies on § 2511 (3) in support of its contention that "in excepting national security surveillances from the Act's warrant requirement, Congress recognized the President's authority to conduct such surveillances without prior judicial approval." Held: 1. Section 2511 (3) is merely a disclaimer of congressional intent to define presidential powers in matters affecting national security, and is not a grant of authority to conduct warrantless national security surveillances. Pp. 301-308. 2. The Fourth Amendment (which shields private speech from unreasonable surveillance) requires prior judicial approval for the type of domestic security surveillance involved in this case.  Pp. 314-321; 323-324. (a) The Government's duty to safeguard domestic security must be weighed against the potential danger that unreasonable surveillances pose to individual privacy and free expression.  Pp. 314-315. (b) The freedoms of the Fourth Amendment cannot properly be guaranteed if domestic security surveillances are conducted solely within the discretion of the Executive Branch without the detached judgment of a neutral magistrate.  Pp. 316-318. (c) Resort to appropriate warrant procedure would not frustrate the legitimate purposes of domestic security searches.  Pp. 318-321.").

[2] United States v. U.S. District Court, 407 U.S. 297 (1972).

[3] United States v. U.S. District Court, 407 U.S. 297, 299 (1972) ("This case arises from a criminal proceeding in the United States District Court for the Eastern District of Michigan, in which the United States charged three defendants with conspiracy to destroy Government property in violation of 18 U. S. C. § 371. One of the defendants, Plamondon, was charged with the dynamite bombing of an office of the Central Intelligence Agency in Ann Arbor, Michigan.").

[4] United States v. U.S. District Court, 407 U.S. 297, 323-24 (1972) ("We do hold, however, that prior judicial approval is required for the type of domestic security surveillance involved in this case and that such approval may be made in accordance with such reasonable standards as the Congress may prescribe.").

[5] All eight justices hearing the case concurred in the finding that the warrantless surveillance was unconstitutional. See United States v. U.S. District Court, 407 U.S. 297 (1972) ("Powell, J., delivered the opinion of the Court, in which Douglas, Brennan, Marshall, Stewart, and Blackmun, JJ., joined.  Douglas, J., filed a concurring opinion, post, p. 324.  Burger, C. J., concurred in the result.  White, J., filed an opinion concurring in the judgment, post, p. 335.  Rehnquist, J., took no part in the consideration or decision of the case.”).

Justice Rehnquist recused himself from considering the Keith case because he had been working as an Assistant Attorney General in the Justice Department’s Office of Legal Counsel (“OLC”) at the time the warrantless surveillance had been approved, and he was possibly involved in creating the in-house legal justifications that allowed President Nixon to circumvent the Fourth Amendment rights of Americans he wanted to target. See generally Encyclopedia Britannica, William Rehnquist (Student and Home Edition 2009).

TIP FOR ASPIRING JURISTS: The Rehnquist-method is probably the best way to get yourself nominated to the Supreme Court: (1) Get a position working for the OLC in the Department of Justice; then (2) Be an outspoken and unwavering supporter of unlimited presidential power while you’re there. This gives you your best chance of coming to the attention of the President or someone in the White House with the ear of the President on legal affairs. Consciously or subconsciously, both Democratic and Republican Presidents tend to appoint lawyers with a proven trackrecord of staunch support for expansive Presidential powers whenever they are given the opportunity to fill a vacancy on the Supreme Court. If you aspire to a seat on the highest court in the land, you might want to adjust your opinions about Article II accordingly.

[6] See United States v. U.S. District Court, 407 U.S. 297 (1972) ("Powell, J., delivered the opinion of the Court, in which Douglas, Brennan, Marshall, Stewart, and Blackmun, JJ., joined.  Douglas, J., filed a concurring opinion, post, p. 324.  Burger, C. J., concurred in the result.  White, J., filed an opinion concurring in the judgment, post, p. 335.  Rehnquist, J., took no part in the consideration or decision of the case.”).

[7] United States v. U.S. District Court, 407 U.S. 297, 321-22 (1972) (“We emphasize, before concluding this opinion, the scope of our decision.  As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.”).

[8] See generally Id; see also United States v. U.S. District Court, 407 U.S. 297, 322 (1972) (“Given [the] potential distinctions between Title III criminal surveillances and those involving the domestic security, Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III.  Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens.  For the warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection.").

[9] The Court’s opinion expressed quite strenuously that it was not issuing a holding related to foreign intelligence. Not only did the Court not issuing a holding on the issue of warrantless foreign intelligence surveillance, but the opinion made it clear that the Court wasn’t even expressing an opinion one way or the other on the matter. See United States v. U.S. District Court, 407 U.S. 297, 321-22 (1972) (“We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.”) (emphasis added).

[10] United States v. U.S. District Court, 407 U.S. 297, 323-24 (1972) ("The above paragraph does not, of course, attempt to guide the congressional judgment but rather to delineate the present scope of our own opinion.  We do not attempt to detail the precise standards for domestic security warrants any more than our decision in Katz sought to set the refined requirements for the specified criminal surveillances which now constitute Title III.  We do hold, however, that prior judicial approval is required for the type of domestic security surveillance involved in this case and that such approval may be made in accordance with such reasonable standards as the Congress may prescribe.")

[11] United States v. U.S. District Court, 407 U.S. 297, 323-24 (1972) ("We do hold, however, that prior judicial approval is required for the type of domestic security surveillance involved in this case and that such approval may be made in accordance with such reasonable standards as the Congress may prescribe.").

[12] See e.g. Testimony of David Kris, Assistant Attorney General for National Security, to the Senate Judiciary Committee, Senate Hearing 111-333, Reauthorizing the USA PATRIOT Act: Ensuring Liberty, September 23, 2009. A video of this excerpt is available at www.youtube.com/watch?v=6A8A7hsDOAw.

In response to a question by Senator Al Franken about whether roving wiretaps satisfy the particularity requirement of the Fourth Amendment’s Warrant Clause, Assistant Attorney General for National Security, David Kris, responded by saying that

“Prior to FISA, every court of appeals to squarely consider the question had actually upheld warrantless foreign intelligence surveillance—that is without an advanced court order. And the Supreme Court had declined to hold that a warrant was required in the so-called Keith case for foreign intelligence surveillance. So, I think you begin with that baseline. FISA by then requiring judicial approval goes above and beyond what the Constitution requires for this kind of foreign intelligence surveillance. I do think there’s an argument, and probably a good argument, that the language that I read to you before—that even if you cannot identify the particular target, but that you describe the specific target that it would satisfy the Particularity Clause that you just cited.”

Mr. Kris’s response to Senator Franken’s question may have been misleading to anyone not thoroughly familiar with the Keith case. This is because he focused exclusively on a small piece of obiter dictum in the Court’s decision that limited its application to the domestic terrorism situation that was directly at issue in the case. The Court’s dicta simply left it to future cases to decide other questions pertaining to foreign intelligence that were not presented to the Court in the case at bar. In fact the Supreme Court was adamant in clarifying that it was not issuing a holding on warrantless foreign intelligence surveillance. The Court even stated that it was not even expressing an opinion in dicta on the other on the matter. See United States v. U.S. District Court, 407 U.S. 297, 321-22 (1972) (“We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.”) (emphasis added).

To take such a statement and use it as support for any affirmative assertion by the Court on the issue of warrantless foreign intelligence surveillance would be ill advised in a litigation setting or in any documents submitted by a lawyer to a judge.

Mr. Kris’s response to Senator Franken might have left all but the most sophisticated observer with the impression that the Supreme Court had upheld warrantless surveillance in the Keith case when in fact the Court held that it was unconstitutional and did so unanimously. See United States v. U.S. District Court, 407 U.S. 297 (1972) ("Powell, J., delivered the opinion of the Court, in which Douglas, Brennan, Marshall, Stewart, and Blackmun, JJ., joined.  Douglas, J., filed a concurring opinion, post, p. 324.  Burger, C. J., concurred in the result.  White, J., filed an opinion concurring in the judgment, post, p. 335.  Rehnquist, J., took no part in the consideration or decision of the case.”).

Still, many conservative commentators approach the Keith decision in the same way as Mr. Kris. For an opposing perspective on this testimony and the constitutionality of roving wiretaps, see Kevin Drum, Roving Wiretaps, Mother Jones, Sept. 23, 2009, at http://motherjones.com/kevin-drum/2009/09/roving-wiretaps (opining that advances in surveillance technology should trump the explicit language of the Fourth Amendment).

For more information about the particularity requirement of the Fourth Amendment that was at the heart of Senator Franken’s question to Mr. Kris, see Edward C. Liu, Congressional Research Serv., Amendments to the Foreign Intelligence Surveillance Act Set to Expire in 2009 (2009), , available at https://intelligencelaw.com/files/pdf/law_library/crs/R40138_3-16-2009.pdf (“The Fourth Amendment imposes specific requirements upon the issuance of warrants authorizing searches of “persons, houses, papers, and effects.” One of the requirements, referred to as the particularity requirement, states that warrants shall “particularly describ[e] the place to be searched.” Under FISA, roving wiretaps are not required to identify the location that may be subject to surveillance. Therefore, some may argue that roving wiretaps do not comport with the particularity requirement of the Fourth Amendment.”).

[13] Not only was the Court’s opinion in the Keith case not intended to constitute a legal holding on the matter of warrantless foreign intelligence surveillance, but the Court made it clear that it wasn’t even expressing an opinion on the matter as dicta. See United States v. U.S. District Court, 407 U.S. 297, 321-22 (1972) (“We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.”) (emphasis added).

[14] This tiny line of dicta used by Mr. Kris in his answer to Senator Franken was actually one of the few times the Supreme Court was even slightly ambiguous on the question of warrantless surveillance throughout the entire Keith opinion. The rest of the opinion makes it clear that domestic electronic surveillance is not entitled to an exemption from the Fourth Amendment’s warrant requirement. To read the Supreme Court’s decision in the Keith case as somehow an endorsement of warrantless domestic surveillance, one would have to ignore practically every line of text in the opinion except the one cited by Mr. Kris to Senator Franken during this hearing.

 

The Court described the warrant clause of the Fourth Amendment is essential to protecting individual liberty from the “well-intentioned but mistakenly overzealous executive officers who are part of any system of law enforcement.” See United States v. U.S. District Court, 407 U.S. 297, 315-16 (1972) (“The warrant clause of the Fourth Amendment is not dead language.  […] It is not an inconvenience to be somehow 'weighed' against the claims of police efficiency.  It is, or should be, an important working part of our machinery of government, operating as a matter of course to check the ‘well-intentioned but mistakenly overzealous executive officers’ who are a part of any system of law enforcement.”).

 

The Court flatly rejected the argument that the President has warrantless domestic surveillance powers that trump the Fourth Amendment rights of American citizens. In Keith, the President was arguing that he had constitutional authority under Article II that would allow him to authorize domestic wiretaps in national security situations without a court order, and his argument was flatly denied by the Court unanimously.  See United States v. U.S. District Court, 407 U.S. 297, 319-20 (1972) (“These contentions in behalf of a complete exemption from the warrant requirement, when urged on behalf of the President and the national security in its domestic implications, merit the most careful consideration.  We certainly do not reject them lightly, especially at a time of worldwide ferment and when civil disorders in this country are more prevalent than in the less turbulent periods of our history.  There is, no doubt, pragmatic force to the Government's position. But we do not think a case has been made for the requested departure from Fourth Amendment standards.  The circumstances described do not justify complete exemption of domestic security surveillance from prior judicial scrutiny.  Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech.  Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent.  We recognize, as we have before, the constitutional basis of the President's domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure.") (emphasis added).

 

The Court stated repeatedly throughout the opinion that warrantless intelligence surveillance was particularly dangerous to individual liberty because of the vagueness of its purpose and historical tendency to be used to stifle lawful public criticism or attack the First Amendment activities of citizens with unconventional views.  See United States v. U.S. District Court, 407 U.S. 297, 314 (1972) (“History abundantly documents the tendency of Government -- however benevolent and benign its motives -- to view with suspicion those who most fervently dispute its policies.  Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs.  The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect "domestic security." Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent.”).

 

The Court stated that “[t]he price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power.” United States v. U.S. District Court, 407 U.S. 297, 314 (1972) (“Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society."). 

 

And finally, the Court held unanimously that domestic electronic surveillance without a warrant is unconstitutional even when performed for national security reasons.

 

If it makes Mr. Kris feel better, however, the Court did apologize to the Attorney General for creating extra paperwork for him and his staff; although the Court weakened its apology a bit by saying that the AG’s “inconvenience is justified in a free society to protect constitutional values.” See United States v. U.S. District Court, 407 U.S. 297, 321 (1972) (“Thus, we conclude that the Government's concerns do not justify departure in this case from the customary Fourth Amendment requirement of judicial approval prior to initiation of a search or surveillance. Although some added burden will be imposed upon the Attorney General, this inconvenience is justified in a free society to protect constitutional values.  Nor do we think the Government's domestic surveillance powers will be impaired to any significant degree.  A prior warrant establishes presumptive validity of the surveillance and will minimize the burden of justification in post-surveillance judicial review.  By no means of least importance will be the reassurance of the public generally that indiscriminate wiretapping and bugging of law-abiding citizens cannot occur.”) (emphasis added).

[15] United States v. U.S. District Court, 407 U.S. 297, 320 (1972) ("We cannot accept the Government's argument that internal security matters are too subtle and complex for judicial evaluation.  Courts regularly deal with the most difficult issues of our society.  There is no reason to believe that federal judges will be insensitive to or uncomprehending of the issues involved in domestic security cases.  Certainly courts can recognize that domestic security surveillance involves different considerations from the surveillance of "ordinary crime." If the threat is too subtle or complex for our senior law enforcement officers to convey its significance to a court, one may question whether there is probable cause for surveillance.").

[16] Id.

[17] United States v. U.S. District Court, 407 U.S. 297, 320 (1972) ("We cannot accept the Government's argument that internal security matters are too subtle and complex for judicial evaluation.  Courts regularly deal with the most difficult issues of our society.  There is no reason to believe that federal judges will be insensitive to or uncomprehending of the issues involved in domestic security cases.  Certainly courts can recognize that domestic security surveillance involves different considerations from the surveillance of "ordinary crime." If the threat is too subtle or complex for our senior law enforcement officers to convey its significance to a court, one may question whether there is probable cause for surveillance.").

[18] United States v. U.S. District Court, 407 U.S. 297, 320 (1972) ("We cannot accept the Government's argument that internal security matters are too subtle and complex for judicial evaluation.  Courts regularly deal with the most difficult issues of our society.  There is no reason to believe that federal judges will be insensitive to or uncomprehending of the issues involved in domestic security cases.  Certainly courts can recognize that domestic security surveillance involves different considerations from the surveillance of "ordinary crime." If the threat is too subtle or complex for our senior law enforcement officers to convey its significance to a court, one may question whether there is probable cause for surveillance.").

 


© 2012 David Alan Jordan. All rights reserved.