Chapter 18 - The Fourth Amendment and National Security Part III

Chapter 18 - The Fourth Amendment and
National Security
Part III
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
Why do warrants matter in this case?
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?
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.
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
 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?
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