24th Annual Bill of Rights
Art and Essay Contest, 2007-2008

TOPIC:  WARRANTLESS WIRETAPS:
              Does Government access to telephone calls and emails
              without a warrant violate the Constitution?

1st Prize, High School
by M.X., a 12th-grade Pacific Grove High School student

Warrantless Wiretaps Is Unconstitutional

The U.S. Constitution was created to "establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty." It also set up a system of checks and balances to make sure that no branch of government became too powerful. To further guarantee the liberty of the American People, the Bill of Rights was ratified, ensuring basic freedoms such as the freedom of speech, press, and religion, while other amendments laid the basis for rights concerning search and seizure, privacy, and the due process of law. But in response to 9-11, President Bush declared war on terrorism, and took several measures to aid in the waging of that war. Warrantless wiretapping is the most controversial. While wiretapping may be well intentioned, such a measure not only violates the Fourth Amendment, but also grants excessive power to the President, blurring the separation of powers necessary to the system of checks and balances.

The President violates the Fourth Amendment using the Patriot Act, which allows the gathering of information without a warrant. The Patriot Act encroaches upon the liberties set down for us in the Constitution in many ways. The Fourth Amendment to the Constitution reads: "The right of the 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." The Patriot Act allows police – without any "warrant" beyond a suspicion of terrorism – to enter and search a suspect's home. Police are not even required to inform a suspect that such a search has taken place. This board power is termed "sneak and peek." The Patriot Act allows a warrant to be obtained retroactively – after a search and seizure has taken place. If the president has the power to interpret the Constitution so loosely, how can American citizens be assured that the Bill of Rights will not be overturned.

In addition to the violation of the Fourth Amendment, warrantless wiretap undermines a major aspect of the Constitution, checks and balances. Without a judicial oversight in these matters, the scales are tipped in favor of the executive branch. A warrant is a way to ensure that there is some oversight of government surveillance. Without judicial oversight, surveillance takes place without any outside credibility check on probable cause. Conducting such activities in secret, without judicial approval or boundaries, encourages the misuse and abuse of power. Investigations conducted by the FBI and committees revealed the immense scope of the crimes, which included wiretapping on a massive scale, targeting the press and American citizens. Although the wiretapping today is strictly part of the "terrorist surveillance program," no one can guarantee that it will be thus limited in the future. Given the constitutional ramifications, warrantless wiretapping should not be seen as a permanent solution but as a stop-gap measure until a way can be found to protect American lives without compromising the fundamental American freedoms.

It is comforting to know some parts of the Patriot Act have been ruled unconstitutional by the courts. On September 29, 2004, U.S. District Judge Victor Marrero struck down Section 505, which allowed the government to issue "National Security Letters" to obtain sensitive customer service records from Internet service providers and other businesses without judicial oversight. The section is very broad in its definition of business records. These include phone records, Internet records, and library records. Not only were the service providers or business owners required to furnish the government with people's private records, but those people were also forbidden to know that their records had been accessed. Section 505 completely excluded the judicial system from the process. At least the system of checks and balances allowed the courts to overrule this Section 505 and declare it unconstitutional.

Warrantless wiretaps clearly violate the fundamental rights of Americans and undermine the American government system. If the American government continues down this path, who knows how long it will be until warrants are abolished all together, or the due process of law is ignored completely? The president uses measures like the Patriot Act, encroaching upon the freedoms of the American people – the very freedoms the Founding Fathers were trying to protect. When looking at some of the obvious breaches of the Constitution, one must wonder, what is the bigger threat to our freedom: the tyranny of foreign governments such as Iraq, North Korea, or the hypocritical government that invokes the Constitution, but has no qualms about circumventing it?