Why Wiretap Warrants?

A law professor argues that search warrants are “utterly beside the point” when the object is to detect terrorism schemes rather than to gather evidence against a suspect.

Law professor Philip Bobbitt of Columbia University concludes in a New York Times op-ed that critics are misguided in their assessment of a new law allowing warrantless wiretaps of electronic communications in terrorism cases involving overseas suspects.

These critics have claimed the law tramples the Fourth Amendment. Bobbitt says the argument doesn’t hold up in light of court cases approving warrantless searches undertaken as a condition of parole, conducted at the border or in other special circumstances. Similarly, he concludes that searches of electronic communications routed through the United States to detect suspicious patterns shouldn’t require a warrant.

“Warrants, which originate in the criminal justice paradigm, provide a useful standard for surveillance designed to prove guilt, not to learn the identity of people who may be planning atrocities,” he writes.

Bobbitt cites Judge Richard Posner in support of his argument. Posner wrote in the New Republic (sub. req), “Once you grant the legitimacy of surveillance aimed at detection rather than at gathering evidence of guilt, requiring a warrant to conduct it would be like requiring a warrant to ask people questions or to install surveillance cameras on city streets.”

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