Constitutionality of Government Investigations involving US and Foreign Citizens in the US through surveillance by NSA

Constitutionality of Government Investigations involving US and Foreign Citizens in the US through surveillance by NSA


            The United States of America has not always been the land of dreams it is today. Freedom which Americans cherish so much was not a part of the genesis of this great democracy and achieving the same was a consequence of blood and patriotism. American people have strived diligently to attain all levels of freedom since they attained their independence from the British and the need to safeguard this freedom has always been paramount to legislators and electorates alike. While Americans enjoy many rights and freedoms there are some which have taken center stage since by their very nature they can be open to abuse by the very government meant to preserve and indeed enforce rights and freedoms. Most importantly is the freedom of privacy which seeks to stop outside parties from interfering with personal and residential privacy of individuals.

            The American government enacted the fourth amendment as a tool of ensuring that law enforcement agencies did not infringe on the right of the people for privacy if when such actions were not necessary. As technology developed it became possible to put surveillance on suspects without actually having to physically invade in their physical privacy. However legislators felt that this too constituted a breach of the laws guaranteeing privacy of Americans and several laws were formed banning the electronic eavesdropping on Americans (Stone, 2006). However it became important too to leave exceptions since failure to do might have led to a threat against national security. Therefore it was agreed by the three arms of government that it was prudent to leave the president some leeway since it was imperative if he was to exercise his role to defend the country. It became possible to order surveillance if a court grants authority on the basis that such a suspect might be involved in acts that threaten national security. In extreme cases the president might even order surveillance without prior authority as mandated by the various laws made by congress (Yoo, 2005).

Constitutionality of Surveillance

There are many reasons why it became important to allow the government the right to order surveillance on individuals outside and inside the United States. However, the major reason came by due to the September 11 attack on America that strengthened the resolve of American government to go all means to safeguard the lives of citizens and the security of the nation. The issue of the constitutionality of electronic surveillance on individuals arose due to the enactment of the forth amendment which was formed following abuse of executive powers by President Nixon to spy on opponents and activists. So what is the fourth amendment?

The fourth amendment is a part of the collective bill of rights that seeks to protect innocent Americans from unreasonable searches and unwarranted seizures. The fourth amendment expressly requires that all security agencies must possess search warrants in order to conduct searches and in attaining such warrants show probable conduct necessitating such a warrant (Engdahl, 2008). It is important to note however that the amendment seeks to protect citizens from government abuse and does not shield them from civil responsibility. More over, courts ruled that the government through its agencies might conduct routine searches without warrant if in their opinion a crime is about to happen and doing so might prevent its occurrence. The courts also felt that information collected illegally might be used by a grand jury in its consideration to indict a suspected criminal but such information becomes inadmissible in a court of law. Other exceptions to the law included voluntary waiver by a person and a situation where by the individual is suspected to be communicating to a terrorist suspect outside the United States.

Another law that sought to protect the illegal interception of information is the Electronic Privacy communications act of 1986 which sought to include restrictions on wiretapping of information by computers. This act also prevented the accessing by government to stored information. The act further classifies emails as private and the court of appeal strengthened this provision when a case was presented to it for consideration. This act was however altered and in effect weakened by the later enactment of the Patriots act.

For the government to order electronic surveillance on American Citizens, there must be proof that the American subject is in communication with a foreign individual outside the United States and that there is sufficient evidence to believe that that agent wishes to cause harm to the United States.  In this regard there are several acts that have been enacted to guide on surveillance with some resolutions either strengthening or weakening some of these acts (Bamford, 2008).

Foreign Intelligence Surveillance ActThis act was enacted as a compromise of giving the government a leeway to pursue its duty of protecting America while at the same time adhering to the fourth amendment. The act came to effect in 1978 to counter the threat of international and domestic terrorism and it is clear that more than ever such an act is required to protect America. Before the 1970’s presidents were allowed immense powers in pursuit of their constitutional duties and so could use their powers to order surveillance on individuals. This changed however in a case whereby the court contested the legality of the government’s use of electronic surveillance and their attempt to use such information to prosecute suspects accused of bombing a CIA building. Further these powers were brought to light during the Watergate scandal whereby the government was accused of misusing power to use electronic surveillance on citizens including a congressman.

This act set out an explicit condition that any wire tapping must be on the condition of collecting foreign intelligence and that surveillance on a party on American soil must only be if the other agent is outside the United States. The act was later expanded to include physical searches provided that the party involved was foreign or that the facility belonged to a foreign agent. This granted the president limited powers to authorize such searches to one year without warranty. The act however had a shortfall, since its main aim was to prevent attacks and therefore it was argued that information collected this way could not be used to prosecute. However the courts let allowed its use if it can be shown that the initial purpose of the surveillance was not for prosecution purposes .

The USA Patriot Act and the Protect America Act

The US patriot act was enacted in 2001 as a tool to empower the government respond appropriately to the threat of terrorism. It allowed security forces to search telephone, letters, emails and other records concerning foreign individuals within the nation believed to be enemies of the state. The law has met severe criticism from some quarters due to its immense powers allowing the FBI to use its powers to order electronic surveillance on individuals without judicial authority. There are those who believe that the act was passed in immense hurry and that its enactment was opportunistic following the September 11 attacks (US Government, 2009).

The protect America act came to law in 2007 and sought to affirm the need to protect American rights while at the same time assist the government in fighting against terrorism. The act removed the requirement to acquire a warrant for foreign surveillance even if one of the parties was within the United Sates. There are those who find the act to be unconstitutional arguing that the immense powers given t o he government could be subject to abuse since there was no oversight.

Cases Shaping the Development of Privacy laws

There are cases that have shaped the various development regarding laws on privacy. This cases were a result of litigation against government by various parties that felt that application of some laws taking away the rights of individuals to privacy were a direct contravention of the constitution. While there are several cases that we can refer to it became important to mention the following.

US vs. US District Court for the Eastern District of Michigan; US Supreme Court 1972 (407 US 297)

            In this case the government charged three individuals with a conspiracy to destroy government property and one of them for the actual destruction of government property. The accused filed a motion to compel the government to disclose information deemed to have been collected using electronic surveillance. The government responded by filing an affidavit of the attorney general seeking to establish that the attorney general had on behalf of the president authorized the use of electronic surveillance on the individuals since it was his view that failure to do would have put the nation in danger of domestic terrorism occasioned by organized criminals. The government further sought to clarify that although the surveillance was warrant less it was reasonable and based on the presidential powers to protect the country. The district court ruled that the surveillance was against the constitution specifically the fourth amendment a decision upheld by the Supreme Court.

The government might have relied on the Omnibus Crime Control and Safe Streets Act which gives government authority to order court approved surveillance on specific suspects depending on the nature of the crime. Contained in the act is a section that recognizes presidential prerogative to protect the nation but the court held that the clause is not a free pass to order warrant less surveillance. The reasoning behind this decision was that the government’s responsibility to provide domestic security must be contrasted against the potential danger that might lead to unreasonable surveillance endangering the much needed right to privacy. It became important to establish therefore that just surveillance could not be achieved without the participation of the judiciary. It was therefore the opinion of the courts that it was necessary for the government to seek judicial approval since in the opinion of the court doing so did not undermine the governmental need to protect the country: to the contrary such recourse gave the act more legitimacy (United States District Court, 2002).

Re Sealed Case; Foreign Intelligence Surveillance Court of Review 2002(310 F 3d 717)

            This was an appeal by foreign intelligence Surveillance Court to the court of review against certain restrictions that had been imposed on the government by other courts regarding surveillance laws. The case was filed by the ACLU since there was no other party in the proceedings except the government with the NACDL acting as the friend of the court. FISA was the law enacted by congress providing the legal framework for surveillance on individuals outside the United States regardless of whether the other recipient was in the US. The government sought to complain that even though FISA gave it power to put surveillance on foreign individuals after convincing the court that those individuals were acting or planning to do so in a manner as to threaten the security of the United States (U S Government, 2009).

            The bone of contention lay on the courts insistence that law enforcers must not advise intelligence officials nor participate in a process that sought to invoke any part of FISA. Furthermore the courts also required that meetings between the FBI and Criminal division must involve the presence of personnel from justice department. The government found it faulty for FISA to forbid it to use electronic surveillance to collect information intended to be used for the prosecution of foreign individuals. FISA only provides for approval if such agent is deemed to be directly threatening the security of the country, acts of sabotage or clandestine activities within the country. The government argued that it was necessary to prosecute these agents to prevent further aggression. A court had held that though surveillance might be conducted without warrant prosecution there after cannot rely on this surveillance since it does not meet the requirement of the fourth amendment. Later on another court held that though such evidence can be used for prosecution it should not have been the reason behind the surveillance.

Directives Pursuant to Section 105B of the Foreign Intelligence Surveillance Act decided by FISCR on Aug 22, 2008

            This was brought about by a petitioner who sought to challenge the legality of the Protect America act that compelled communications provider to submit information concerning their clients outside US believed to be involved in criminal activities. The Court ruled that there was no breach of the constitution and ordered obedience towards that specific law leading the petitioner to bring a review of the act. The petition required the appellate to review the importance of national security against the fundamental right to privacy. The PAA gave the executive power to order surveillance on individuals outside the country including American citizens outside the country without warrant. However the act provided a certain criteria to be followed in making such decisions. The petitioner also felt that to grant the executive such authority would lead to abuse since there were no measures to stop such abuses from occurring.

The court held that although it was important for the government to follow the constitution and respect people’s freedoms and rights, it was important too for the government to guarantee all security. Further the court argued that so long as the government continued to demonstrate accountability in evoking the act then it was indeed necessary if the government is to fulfill its function. The court therefore held that the act was necessary as it was and dismissed the appeal (

United States Foreign Intelligence Court of Review, 2008).


            As noted earlier the United States is faced with hostility from quarters that feel the country is interfering with their freedoms whichever they maybe. It has there fore become important to protect the country especially after the September 11 attack. In this regard collection of vital intelligence becomes important in order to avert future attacks. It is there fore logical that citizens must be willing to support a reasonable loss of privacy in a bid to have their security guarantee. As has been evidenced by the above cases, it is also the opinion of the courts that the executive must be given adequate space to operate efficiently to fulfill its obligations to protect the country.

            The constitutionality of electronic surveillance of individuals within American therefore is an issue that differs depending on which side of the political divide one sits. Courts have differed on the issue but the basic need to protect all Americans against external attack leads the judiciary to grant some exceptions and therefore allow such surveillance. For many it is simply a small price to pay to keep the terrorists out if not in prison. However, it is wrong for presidents like Bush to side step the constitution sometimes and order the NSA to carry out illegal surveillance on innocent Americans (Joyner, 2005).

Works Cited

 Bamford, J. (2008). The Shadow Factory: NSA Eavesdropping on America. New York: Doubleday Publishers.Engdahl, S. (2008). Domestic Wiretapping. Chicago: Greenhaven Press.

Joyner, J. (2005). Outside the Beltway: Bush Allowed Warrantless Phone Surveillance After 9/11. Retrieved April 29, 2009, from, G. (2006). The Huffignton Post: Why the NSA program is Illegal. Retrieved April 29, 2009 from

Foreign Intelligence Court of Review. (2008). Directives Pursuant to Section 105b of the Foreign Intelligence Surveillance Act.  Retrieved April 29, 2009 from

United States v. United States Dist. Ct., 407 U.S. 297 (1972). (2002). Retrieved April 29, 2009  from S Government. (2009). Department of Justice: The Protect America Act. Retrieved April 29, 2009 from

US Government. (2009). Department of Justice: Patriot Act. Retrieved April 29, 2009 from, G. (2005). The Powers of War And Peace: Presidential powers. Chicago: University of Chicago Press.