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27
THE CONSTITUTION
AND
FOREIGN INTELLIGENCE
SURVEILLANCE
ELECTRONIC
Article II of the Constitution vests “the executive power” in the
President, makes him Commander-in-Chief of the armed forces,
gives him the power to make treaties (with Senate concurrence),
and gives him the power to appoint ambassadors (with Senate consent) and receive ambassadors.? The Supreme Court has recognized
that the constitutional scheme provides for presidential primacy in
foreign affairs and assigns him ultimate responsibility to protect
national security.* As recently as 1981, the Supreme Court stated
that “matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention.”* Nowhere is the need for exclusive presidential authority greater than
in protecting this Nation from international terrorism and from
the espionage activities of hostile foreign nations, and such matters
fall squarely within the national security and foreign affairs
realms with respect to which the Supreme Court has repeatedly
stated that no appropriate role for the judiciary exists. The courts
of the United States have consistently held that the Constitution
does not require the President or his authorized representatives to
obtain a judicial warrant or order for the conduct of electronic surveillance of foreign powers and their agents for foreign intelligence
purposes.5 The courts which have considered such foreign intelligence electronic surveillance have held squarely and explicitly that
the President may, consistently with the Fourth Amendment, authorize electronic surveillance of féreign powers and their agents
within the United States without obtaining a judicial warrant.
In United States v. Humphrey and Truong, 629 F.2d 908, 913-14
(4th Cir. 1980), the United States Court of Appeals for the Fourth
Circuit held that the Executive Branch need not obtain a judicial
warrant for foreign intelligence electronic surveillances of agents
of foreign powers. The Court stated:
For several reasons, the needs of the executive are so
compelling in the area of foreign intelligence, unlike the
area of domestic security, that a uniform warrant requirement would, following Keith [see note 5], “unduly frustrate” the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign
threats to the national security require the utmost stealth,
*U-S. Const., art. II, sec. 1 (executive power), sec. 2 (Commander-in-Chief) (treaty power) (amlorial appointment),
and sec. 8 (am
lorial zeceipt).
A 5 [United States r Curtiss-Wright Export Corp., 299
U.S. 304 (1936); see Chicago & Southern
irlines, supra n. 1.
* Haig v. Agee, 453 U.S. 280, 292 (1981); see Harisiades v. Shaughnessy, 342 U.S. 580 (1952)
(matters “relating to the conduct of foreign relations . . . are so exclusively entrusted to the
political branches of government as to be largely immune from judicial inquiry or interference.
_ *The holding of the case of United States v. United States District Court, 407 U.S. 297 (1972),
is not to the contrary. The case, known commonly as the Keith case after the name of the U.S.
district judge involved in the case, stands for the proposition that the Fourth Amendment
generally requires a warrant for domestic security electronic surveillances within the United States.
The Court specifically stated that it did not answer the question whether a warrant is or is not
required for a foreign intelligence electronic surveillance in the United States, which involves
activities of an agent of a forei
r. Id. 321-22. Similarly, Zweibon v. Mitchell, 516 F.2d 594
(D.C. Cir. 1975), cert. denied
$5. 944 (1976), did not deal
with a foreign intelligence surveillance of an agent of a foreign power.
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