Does national security justify warrantless surveillances?

The Fourth Amendment of the United States Constitution declares that: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Fourth Amendment requires a finding of prior-existing probable cause by a judicial magistrate and particularity of description as to persons, places, and things. This directive is imposed upon Executive branch officers who are tasked to ensure that laws are faithfully executed.

In the case of United States vs. United States District Court, 407 US 297 (1972), Justice Douglas, in his concurring opinion, laid down the judicial antecedents which highlighted the significance and purpose of the Fourth Amendment. He declared:

“For it was such excesses as the use of general warrants and the writs of assistance that led to the ratification of the Fourth Amendment . . . [t]he tyrannical invasions described and assailed in Entick, Huckle, and Wilkes, practices which also were endured by the colonists, have been recognized as the primary abuses which ensured the Warrant Clause a prominent place in our Bill of Rights. (U.S. v. U.S. District Court, 328-329).

The recent case of American Civil Liberties Union, et al., vs. National Security Agency, et al. demonstrates a violation against Fourth Amendment rights. In this case, the AMCLU challenged the NSA’s spying program, particularly, the Terrorist Spying Program, as violative of their Fourth Amendment Rights, among others. The court held that plaintiffs have sufficiently alleged that an actual, concrete injury is traceable to the TSP and they are therefore entitled to seek relief from the courts. Plaintiffs alleged “that they would be [un] able to continue using the telephone and email in the execution of their professional responsibilities if the Defendants were not undisputedly and admittedly conducting warrantless wiretaps of conversations.” (American Civil Liberties Union vs. National Security Agency, 21).

On the other hand, defendants argued that wiretaps or domestic surveillances are beyond the purview of protection guaranteed by the Fourth Amendment. However, the court ruled otherwise.

It has been held in the landmark case of Katz vs. United States, 389 U.S. 347 (1967) that the warrant requirement under the Fourth Amendment is also applicable to electronic surveillances. The Court declared that surveillances conducted for domestic security must undergo the process of procuring judicial warrant. If no judicial warrant is procured, the subsequent wiretap or surveillance becomes per se unreasonable and unconstitutional.

            The Fourth Amendment was included in the Bill of Rights to guard against executive abuses of power since the tendency that such freedoms would be violated if the Executive branch is given unbridled access and discretion to conduct such warrantless domestic surveillances is great. (U.S. v. U.S. District Court, 328-329)

The Court therefore made a balance between the interests of the government to protect its citizens and the right of the people guaranteed under the Fourth Amendment. Justice Powell wrote that the inconvenience to the government is “justified in a free society to protect constitutional values.” (Lee)

It is also important to note that Fourth Amendment rights are intertwined with First Amendment rights. (Coburn and Davis 34) As the court wrote in Marcus v. Search Warrants, 367 U.S. 717 (1961): “Historically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure. . . . This history was, of course, part of the intellectual matrix within which our own constitutional fabric was shaped. The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression.” A violation of Fourth Amendment rights results, therefore, to a violation of First Amendment rights. (Coburn and Davis 34)

            Fourth Amendment rights are of paramount consideration under the United States Constitution and it is one of the most important freedoms in the hierarchy of the Bill of Rights. The judicial process of procuring a warrant is therefore indispensable to give validity to acts of searches and seizures, which, as already illustrated above, includes electronic surveillances. That the government is tasked to protect its citizens is not enough justification to do away with these rights. After all, the Executive branch is not above the Constitution.


Coburn, Barry and Davis, Hugh. “Memorandum of Law of Certain Members of Congress in

Support of Plaintiff’s Motion for Partial Judgment.” (an Amicus Curiae Brief for the case of American Civil Liberties Union vs. National Security Agency). November 2, 2006. <>

Tien, Lee. “FISA: Frequently Asked Questions and Answers.” November 2, 2006.


American Civil Liberties Union vs. National Security Agency. Case No. 06-CV-10204.

November 2, 2006.


Katz vs. United States, 389 U.S. 347 (1967).

United States vs. United States District Court, 407 US 297 (1972).