Question

Following the terrorist attacks of September 11, 2001, President Bush ordered the use of wiretaps to collect metadata on phone calls being made between the United States and countries where terrorists were suspected of operating. Because this practice involved very broad collection of data, few of the wiretaps were authorized by warrants.

Develop an argument that takes a position on whether the collection of the data was constitutional or that it was unconstitutional.
Use at least one piece of evidence from the following foundational documents:
The Fourth Amendment
The Federalist 51
The Federalist 70

Answer 1

The Bush administration's use of warrantless wiretaps after the 9/11 attacks raises constitutional questions under the Fourth Amendment, which requires warrants for searches. While the Patriot Act expanded surveillance powers, the Supreme Court in Carpenter v. United States reinforced privacy protections. The debate between national security and civil liberties continues in the context of this constitutional framework.

Step-by-step explanation:

The constitutionality of the Bush administration's use of wiretaps without warrants following the September 11, 2001, terrorist attacks can be viewed through several legal and constitutional lenses. Central to this discussion is the Fourth Amendment, which protects against unreasonable searches and seizures and requires that warrants be issued upon probable cause. However, in the wake of 9/11, the administration argued for expanded surveillance powers under the pretense of national security, leading to the implementation of the USA PATRIOT Act and programs such as the Terrorist Surveillance Program by the NSA.

Examining the Fourth Amendment, its text clearly stipulates the need for warrants based on probable cause for searches. The United States v. United States District Court (1972) reinforces this by mandating that government officials obtain warrants even for domestic security issues. Yet, the Foreign Intelligence Surveillance Act Court of Review's In re Directives (2008) suggests there is an exception for foreign intelligence purposes. Federalist Papers such as Federalist 51 discuss the importance of checks and balances to prevent abuse of power, while Federalist 70 advocates for a strong executive to act decisively, which could relate to unilateral actions in terms of national security.

Ultimately, Carpenter v. United States (2018) signaled a shift towards greater privacy protections by finding that cellphone location data requires a search warrant. The debate between national security and civil liberties is ongoing, with the Supreme Court reflecting a more stringent view on the need for warrants aligning with the principles established by the Fourth Amendment.

Answer 2

The collection of data through broad wiretaps after the September 11 attacks can be argued as unconstitutional based on the Fourth Amendment and principles outlined in The Federalist 51 and The Federalist 70.

Step-by-step explanation:

Argument: The collection of data was unconstitutional

The collection of data through broad wiretaps without warrants after the September 11 attacks can be argued as unconstitutional based on the Fourth Amendment. The amendment protects citizens against unreasonable searches and seizures, requiring warrants to be based on probable cause and specifically describing the place to be searched or the person or things to be seized.

In The Federalist 51, James Madison emphasizes the need for a system of checks and balances to prevent the abuse of power. This principle supports the argument that broad collection of data without warrants goes against the idea of limiting governmental power.

Furthermore, The Federalist 70 by Alexander Hamilton highlights the importance of energy and unity in the executive branch. However, broad wiretapping without proper warrants may result in an excessive accumulation of power and undermine the intended balance of power among the branches, potentially violating the principles outlined in this Federalist Paper.

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