Page:ACLU v. NSA Opinion (August 17, 2006), US District Court, East-Michigan.djvu/28



The FISA was essentially enacted to create a secure framework by which the Executive branch may conduct legitimate electronic surveillance for foreign intelligence while meeting our national commitment to the Fourth Amendment. It is fully described in United States v. Falvey, 540 F. Supp. 1306 (E.D.N.Y. 1982), where the court held that FISA did not intrude upon the President's undisputed right to conduct foreign affairs, but protected citizens and resident aliens within this country, as "United States persons." Id. at 1312.

The Act was subsequently found to meet Fourth Amendment requirements constituting a reasonable balance between Governmental needs and the protected rights of our citizens, in United States v. Cavanagh, 807 F.2d 787 (9th Cir. 1987), and United States v. Duggan,743, F.2d 59 (2d Cir. 1984).

Against this background the present program of warrantless wiretapping has been authorized by the administration and the present lawsuit filed.

V. The Fourth Amendment
The Constitutional Amendment which must first be discussed provides: "The right the of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." - Amend. IV.

This Amendment "...was specifically propounded and ratified with the memory of ... Entick v. Carrington, 95 Eng. Rep. 807 (1765) in mind", stated Circuit Judge Skelly Wright in Zweibon v. Mitchell, 516 F.2d 594, 618 n.67 (D.C. Circ. 1975) (en banc) (plurality opinion). Justice Douglas, in his concurrence in the Keith case, also noted the significance of Entick in our history, [*29]