The Fourth Amendment\u27s National Security Exception: Its History and Limits

Since 2001, federal prosecutors have indicted and convicted hundreds of defendants for terrorism, espionage, and other national security crimes.\u27 And for every prosecution, there are dozens of investigations into foreign threats that never result in a trial. Between 2001 and 2010, for example, the federal government obtained 16,306 foreign intelligence warrants in the course of its security operations. Between 2004 and 2011, the Federal Bureau of Investigations ( FBI ) issued 119,192 National Security Letters for records deemed to be pertinent to national security investigations. Despite these numbers, security investigations and prosecutions proceed on uncertain constitutional footing. The rights of terrorism suspects to receive Miranda warnings, confront accusers, and obtain civilian trials are unclear.6 Similar constitutional questions surround the Fourth Amendment and its application to national security matters. The balance between the Fourth Amendment\u27s protections and the President\u27s inherent power to defend the nation has become a focus of litigation in recent years yet still remains murky. To clarify the constitutional parameters of national security investigations, this Article examines the Fourth Amendment\u27s historical influence in security affairs. Claims about historical practice pervade debates over modern surveillance programs, including those about the Bush Administration\u27s warrantless wiretapping program and recent amendments to the Foreign Intelligence Surveillance Act ( FISA ). These historical treatments remain cursory, however, and have failed to detail how the Fourth Amendment regulated national security operations in the pre- September 11 era

The Bureaucratic Politics of the Federal Bureau of Investigation

This is a comprehensive study of how the administrative powers of the Federal Bureau of Investigation (FBI) have evolved in response to external political forces. To analyze the changes made to FBI administrative powers, this project will assess theories of public administration, bureaucratic politics, various congressional statutes, court rulings, and executive policies that have affected the bureau’s capacity to perform investigations and intelligence operations

The Poverty of Posner\u27s Pragmatism: Balancing Away Liberty After 9/11

This review of Richard Posner\u27s Not a Suicide Pact: The Constitution in a Time of National Emergency argues that Posner\u27s particular brand of pragmatic utilitarianism is particularly ill-suited to constitutional interpretation, as it seems to negate the very idea of precommitment that is so essential to constitutionalism. Instead, Posner treats the Constitution as little more than an invitation to pragmatic policy judgment, and then employs that judgment through speculative cost-benefit balancing to find constitutionally unobjectionable most of what the Bush Administration has done thus far in the war on terror, including coercive interrogation, incommunicado detention, warrantless wiretapping, and ethnic profiling. Indeed, Posner\u27s Constitution would permit the Administration to go much further than it has - among other things, he defends indefinite preventive detention, banning Islamic extremist rhetoric, mass wiretapping of the entire nation, and making it a crime for newspapers to publish classified information. All of this is permissible, Posner argues, because unless the Constitution bend[s] in the face of threats to our national security, it will break. Ironically, Posner reaches these results with a constitutional theory more in keeping with Chief Justice Earl Warren than Justice Antonin Scalia. Eschewing popular conservative attacks on judicial activism, Posner argues that given the open-ended character of many of the Constitution\u27s most important terms, it is not objectionable, but inevitable, that constitutional law is judge-made. He dismisses the constitutional theories of textualism and originalism favored by many conservative judges and scholars as canards. But having rejected textualism and originalism, Posner proceeds unwittingly to offer a book-length demonstration of what textualists and originalists most fear from constitutional theorists who emphasize the document\u27s open-ended and evolving character. In Posner\u27s approach, the Constitution loses almost any sense of a binding precommitment, and is reduced to a cover for judges to impose their own subjective value judgments on others. The review first discusses Posner\u27s analysis of several specific security-liberty issues, in order to illustrate how his method works in concrete scenarios. I then turn to the broader implications his theory has for constitutional law, which in my view are quite dangerous

REFORMS IN THE CRIMINAL JUSTICE SYSTEM. LESSONS LEARNED FROM THE REPUBLIC OF LITHUANIA

The paper consists of two parts: one - analysis of obtaining permission to conduct pre-trial investigative action from economic aspects and another on the lessons learned in the Republic of Lithuania during the reforms in the civilian security sector.An essential component of an effective pre-trial investigation is not just investigative actions prescribed by criminal procedure laws, their procedures for conduction during one of the criminal process stages – a pre-trial investigation, qualification of investigators, prosecutors, their skills, secondary law that regulates conduction of investigative actions in details. Also, how does the investigative action work at the preliminary stage of conducting the investigative actions? Is it effective and efficient? For example, in obtaining permission for such actions as a search, covert surveillance, or wiretapping. The author analyses investigative actions from an economic point of view in the first part of this paper.              The paper aims to introduce obstacles, misunderstandings, and committed mistakes before launching and during the implementation of the reforms in the Lithuanian criminal justice system after the collapse of the Soviet Union, namely, in the civilian security sector. The author of this paper presents his experience through bullet points named “lessons learned” of being a participant in the above-mentioned reforms. The outcomes of this paper are going to be important in light of the reform in the civilian security sector launched and still going on in Ukraine after the Revolution of Dignity of 2014. It helps to avoid mistakes that were made during reforms in the Republic of Lithuania. 

Nixon\u27s Wars: Secrecy, Watergate, and the CIA

Watergate is considered the most infamous political scandal in American history. It resulted in the resignation of President Richard M. Nixon, and it had a profound, lasting, and damaging impact on the American people’s trust in government. The story of Watergate is often intertwined with that of President Nixon—his corruption, paranoia, abuse of power, and dramatic political demise. This thesis argues that the crisis of Watergate was rooted not merely in the personality and conduct of the tragically flawed Nixon, but in the deep, systemic government secrecy that developed in the United States at the onset of the cold war. There are four central ways in which this institutional secrecy affected the Watergate affair: (1) The emergence of a “national security” ideology in the United States in the immediate postwar years gave rise to hidden foreign policies and secret, often illegal, government activities; (2) the growing public awareness and discontent regarding this secrecy in the 1960s, particularly concerning US involvement in Vietnam, which thereupon led to the increasing regularity of national security leaks (media disclosures of state secrets); (3) the mentality of President Nixon and his subordinates concerning the use of illegal clandestine operations (“dirty tricks”) to combat perceived domestic enemies—a practice that had been employed by US intelligence and law-enforcement agencies for decades; and (4) the involvement of the CIA in the events surrounding Watergate, which demonstrates the secrecy and autonomy prevalent in the intelligence community, often to the detriment of American democracy

J. Edgar Hoover, Speech Before the House Committee on Un-American Activities (26 March 1947)

J. Edgar Hoover fought domestic communism in the 1940s with illegal investigative methods and by recommending a procedure of guilt by association to HUAC. The debate over illegal surveillance in the 1940s to protect national security reflects the on‐going tensions between national security and civil liberties. This essay explores how in times of national security crises, concerns often exist about civil liberties violations in the United States