Hamilton versus Jefferson

Last week the New York Times reported that President George W. Bush had directed the National Security Agency (NSA) to intercept communications between suspected Al Qaeda members and people in the United States. NSA has long intercepted solely foreign communications. Indeed, such intercepts are a major source of intelligence. Until the practice was revealed in court proceedings, the NSA gained valuable intelligence from Osama Bin Laden’s satellite phone communications.

Wiretapping or other surveillance of electronic communications within the United States usually falls within the purview of the Federal Bureau of Investigation (FBI) in its capacity for domestic law enforcement. In a domestic law enforcement case, such “searches” are generally authorized by a warrant issue by a judge upon presentation of probable cause.

In cases of gathering foreign intelligence, the law and practice become more complex. Whether one approves of the searches ordered by the president or not, there is a fairly long judicial trail permitting such searches under the “commander-in-chief” provisions of the Constitution. At the very least wide latitude is granted and the limits of such latitude have not been clearly circumscribed.

The Courts have consistently explicitly allowed electronic surveillance in national security cases. Indeed, in United State v. Buck in 1977, the Ninth Circuit Court concluded that “[f]oreign security wiretaps are a recognized exception to the general warrant requirement.” Summarizing the history of the jurisprudence on the matter in 2002, the United States Foreign Intelligence Surveillance Court of Review [page 48] concluded that “…court[s] to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information… We take for granted that the President does have that authority and, assuming that is so, [the Foreign Intelligence Surveillance Act] could not encroach on the President’s constitutional power.”

Bush is not the first modern president to claim and exercise such inherent authority even on those engaged in foreign intelligence on US soil. President Jimmy Carter used this authority in the prosecution of Truong Dinh Hung, a person prosecuted for spying on behalf of the Socialist Republic of Vietnam. Evidence against convicted spy Aldrich Ames under President Bill Clinton was also acquired by a warrantless search. Indeed, Clinton’s former Deputy Attorney General Jamie Gorelick argued that the “Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes.”

Ultimately, the debate about such warrantless searches revolves around the broadness of two Constitutional provisions. Article II of the US Constitution invests the prerogatives of the Commander-in-Chief of the Armed Forces. Gathering intelligence in the fulfillment of this responsibility (not for general law enforcement) is a presumptive power of the President. On the other hand, the Fourth Amendment to the Constitution prohibits “unreasonable” searches.

This friction between these provisions mirrors an ongoing tension between different governing philosophies at odds since the ratification of the Constitution: the Hamiltonian and Jeffersonian views.

Alexander Hamilton a chief apologist for the Constitution, in the Federalist Papers, strongly argued for a strong central government and a strong executive in particular. As Hamilton explained, “Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks…” Of those opposed to the ratification of the US Constitution, many cited the power granted the president as too sweeping. Hamilton certainly would have been comfortable with Bush’s exercise of executive authority.

By contrast, Thomas Jefferson (at least while not serving as President) would have argued against such authority. Jefferson deeply distrusted government, any government, and would have believed that procedural impediments should always tie executive authority.

The irony is that a largely free and democratic republic would have never survived over two centuries but for the Hamiltonian bow to the practical exigencies of government. It was Hamilton who first argued that there were “implied” powers inherent in the federal government. On the other hand, the Jeffersonian ideal of limited government continues to provide important salutary rhetorical constraints on the growth of government power.

The current debate is yet another extension of the Hamilton and Jeffersonian dialogue begun two centuries ago. However, lest we get too carried away with the current debate, it should be remembered that the three largest erosions of individual liberty in the last few years have been the extension of eminent domain powers, limits on freedom of speech implicit in campaign finance reform, and the prohibition of protests around abortion clinics.

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