Chapter 1 Introduction What are the issues of the day?

What is the fundamental distinction between criminal investigation and anti-terrorism investigations?

What is the principle distinction between criminal law and administrative law, which supports the different warrant requirements for public health and criminal searches?

Where does terrorism fit in this?

Why is probable cause more difficult for terrorism than for criminal investigations?

When does a terrorism investigation become a criminal law investigation?

What constitutional issues are implicated in terrorism but not usually in criminal law?

How is the informational database for assessing the success of traditional law enforcement different from that for assessing the effectiveness of anti-terrorist activities?

What is the outlier problem for terrorism?

What is the credibility problem with terrorism stats?

Chapter 18 - The Fourth Amendment and National Security

Olmstead v. United States, 277 U.S. 468 (1928)

Did this court apply the 4th amendment to wiretaps?

How did you make phone class in those days?

Were phone lines all private?

How might this have influenced the court?

Federal Communications Act of 1934

Makes it a crime for any person ‘‘to intercept and divulge or publish the contents of wire and radio communications.’’

Did the court apply this to federal agents?

Did the court apply it to national security?

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

Did the Court find a constitutional right to phone privacy?

Would this apply to private persons?

What limits did the Omnibus Crime Control Bill of 1968 set on wiretapping?

What if the phone company hears a suspicious conversation as part of routine monitoring?

Did the Bill address national security?

US v US District Court (Keith), 407 US 297 (1972)

What is the underlying crime?

Was there foreign involvement?

What was the nature of the evidence gathering?

Was there a warrant?

How were the searches authorized?

The Government's Argument

Did the Omnibus Crime Control Bill control?

What language excluded this sort of crime?

What is government arguing that this clause means?

Does the court buy this?

What Does the Constitution Require?

What is the real question before the court?

‘‘Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security. . . .’’

What is the argument that the AG is a substitute for a warrant?

Why does the court remind us that it is most suspicious of the government in national security cases?

Why does this undermine the AG as a substitute?

Issues with Warrants

What if they are not prosecuting you - how do you contest a search?

How do you even know they are watching you?.

Why does the government not want to ask a judge to approve a warrant?

Are these legitimate concerns?

What does the court rule?

Does the court leave the door open for statutory modifications of the warrant requirement?

Title III (18U.S.C. §2518(1)(b)-(d) (2000))

What are the specific requirements of Title III for electronic communications?

What other electronic communications are protected by Title III?

Are these greater than the constitutional requirements for a warrant?

Why are these problematic for national security surveillance?

Could this be cured by requiring only the constitutional minimum?

Domestic organizations with foreign objectives
Zweibon v.Mitchell, 516 F.2d 594 (DC Cir. 1975)

What is the group?

What foreign policy problems where they causing?

Did the DC court require a warrant?

What about for wiretapping American citizens living in Berlin?

US v. Ehrlichman, 376 F Supp 910 (1974), affirmed 546 F2d 910 (1976)

Who did the break in?

Whose office did they break into?

Why?

Did the defendants have a warrant?

Who is on trial?

Is this a fight over the admission of warrantless information?

Why do warrants matter in this case?

The Authority

Was there any urgency in this break in, i.e., did they have to get a warrant?

Would a judge have given them a warrant?

What legal issues are involved in this search?

Where do the defendants claim to get the legal authority for the search?

Is this a foreign intelligence case?

Can the president order this?

Why does it not matter anyway in this case?

US v. Truong Dinh Hung, 629 F2d 908 (1982) (post-FISA)

What was Truong doing that lead to this case?

How was he caught?

Why didn't the government arrest him at once?

How did they conduct the investigation?

How was this authorized?

Who do they catch as the source?

Admitting the Evidence

How is this case distinguished from Keith?

What factors did the court base this finding on?

Why do Defendants say the evidence should not be admitted?

Does the nature of the surveillance change once they have established that defendant is selling secrets?

How does the primary nature of the search change at this point?

What test does the government want for deciding when national security surveillance standards apply?

What did the circuit court order?