Vanderbilt Law Review

First Page



Since 2001, federal prosecutors have indicted and convicted hundreds of defendants for terrorism, espionage, and other national security crimes.' 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's protections and the President's 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's historical influence in security affairs. Claims about historical practice pervade debates over modern surveillance programs, including those about the Bush Administration's 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.