Abstract

Many individuals argue that warrants, whether for domestic or foreign intelligence gathering in the United States, should be required because they provide a check on executive discretion. This Comment challenges that assertion. Instead, it argues that warrants provide only marginal privacy-protecting benefits while imposing real costs on intelligence gathering. Instead of emphasizing warrants in the domestic intelligence gathering context - defined as intelligence gathering against threats with no foreign connections - the Fourth Amendment's reasonableness touchstone should supplant the focus the Supreme Court has placed on warrants and probable cause in determining compliance with the Fourth Amendment. Reasonableness inherently involves the weighing of the various interests on both sides of an issue, and can therefore readily take account of the waxing and waning of threats posed against the United States. That is, Fourth Amendment doctrine can fluctuate in relation to the degree of threat posed by particular targets, and its enforcement mechanisms can be relaxed where doing so is reasonably necessary to counter-act those threats. This Comment adds to the contemporary debate over domestic surveillance by examining the policy rationales for a warrant requirement in the context of the unique conditions and demands of domestic intelligence gathering. It ultimately finds that none of the normal justifications for requiring warrants can support the warrant requirement in this context. Instead, it argues that through a combination of legislative action and expansion of existing Supreme Court precedent in other areas, our nation can best safeguard the values of the Fourth Amendment while still giving the Executive the flexibility necessary to conduct vital domestic counter-terrorism activities.