Chapter 18 - The Fourth Amendment and National Security Part III

2 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?

3 The Authority Was there any urgency in this break in, i.e., did they have time 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?

4 Did the Appeals Court Modify the Ruling? The danger of leaving delicate decisions of propriety and probable cause to those actually assigned to ferret out ‘‘national security’’ information is patent, and is indeed illustrated by the intrusion undertaken in this case, without any more specific Presidential direction than that ascribed to Henry II vexed with Becket. As a constitutional matter, if Presidential approval is to replace judicial approval for foreign intelligence gathering, the personal authorization of the President— or his alter ego for these matters, the Attorney General—is necessary to fix accountability and centralize responsibility for insuring the least intrusive surveillance necessary and preventing zealous officials from misusing the President’s prerogative.

5 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?

6 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?

7 The Primary Purpose Doctrine What was evidence that the nature of the search changed in Truong? What does the government need to do at this point if it wants to continue the search? What if the national security search shows up unrelated crimes by persons not involved in national security activities? For example, sellers of clandestine credit card readers who sell to terrorists