Approved For Release 2008/09/15 : CIA-RDP86B00338R000200330014-1
28
speed, and secrecy. A warrant requirement would add a
procedural hurdle that would reduce the flexibility of executive foreign intelligence initiatives, in some cases delay
executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive
operations.
More importantly, the executive possesses unparalleled
expertise to make the decision whether to conduct foreign
intelligence surveillance, whereas the judiciary is largely
inexperienced in making the delicate and complex decisions that lie behind foreign intelligence surveillance.
The executive branch, containing the State Department,
the intelligence agencies, and the military, is constantly
aware of the nation’s security needs and the magnitude of
external threats posed by a panoply of foreign nations and
organizations. On the other hand, while the courts possess
expertise in making the probable cause determination involved in surveillance of suspected criminais, the courts
are unschooled in diplomacy and military affairs, a mastery of which would be essential to passing upon an executive branch request that a foreign intelligence wiretap be
authorized. Few, if any, district courts would be truly competent to judge the importance of particular information
to the security of the United States or the “probable
cause” to demonstrate the government in fact needs to recover that information from one particular source.
Perhaps
most
crucially,
the
executive
branch
not
only
has superior expertise in the areas of foreign intelligence,
it is also constitutionally designated as the pre-eminent authority in foreign affairs.
The President and his deputies are charged by the constitution with the conduct of the foreign policy of the
United States in times of war and peace. Just as the separation of powers in Keith forces the executive to recognize
a judicial role when the President conducts domestic secu-
rity surveillance, so the separation of powers requires us
to acknowledge the principal responsibility of the President for foreign affairs and concomitantly for foreign intelligence surveillance.
In sum, because of the need of the executive branch for
flexibility, its practical experience, and its constitutional
competence, the courts should not require the executive to
secure a warrant each time it conducts foreign intelligence
surveillance. [Citations omitted.]
Similarly, in United States v. Brown,
484 F.2d 418, 426 (5th Cir.
1973), cert. denied, 415 U.S. 960 (1974), the U.S. Court of Appeals
for the Fifth Circuit stated:
. .. [BJecause of the President’s constitutional duty to
act for the United States in the field of foreign relations,
and his inherent power to protect national security in the
context of foreign affairs, we reaffirm
.. . that the Presi-
dent may constitutionally authorize warrantless wiretaps
Approved For Release 2008/09/15 : CIA-RDP86B00338R000200330014-1