The President's assertion that domestic spying is allowed under the constitution for "National Security" reasons should never even make it to the Supreme Court. Why? It has already been there, and he lost.
On Sept 30, 1968 a bomb went off outside of CIA headquarters in Ann Arbor, Michigan. Three leaders of the radical "White Panthers" organization were charged. During the trial, it came out that the government had been warrentlessly listening to conversations involving radical groups. This is very relevant today, as it deals with the 4th Amendment, national security,
and domestic terrorism
Here is what government archives
have to say about the case:
On January 25, 1971, United States District
Court Judge Damon J. Keith issued an opinion in
what later became known as the "Keith Case."
The opinion rejected Attorney General John N.
Mitchell's assertion that the Executive Branch had
the inherent right to conduct warrantless electronic
surveillance on domestic groups that posed a
threat to national security. The decision achieved
landmark status when the United States Supreme
Court unanimously affirmed the decision on
June 19, 1972.
and..The Keith Case stands today, as it has for over
30 years, as a beacon to the judiciary to vigilantly
guard against attempts by the Executive Branch
to secure an "uninvited ear" to the private
conversations of citizens, especially when those
attempts are premised on an opaque assertion of
national security. The opinion honors the heritage
of the United States District Court for the Eastern
District of Michigan and the independence of
the Federal Judiciary.
Needless to say, the Nixon administration appealed to the Supreme Court. The Supreme Court unanimously agreed to uphold the Keith ruling. It doesn't only address "probable cause" but also what is considered "reasonable". The case in question is 407 U.S. 297
, and here are some excerpts from their opinions:
"History abundantly documents the tendency of Government - however benevolent and benign its motives - to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect "domestic security." Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent. "
"It may well be that, in the instant case, the Government's surveillance of Plamondon's conversations was a reasonable one which readily would have gained prior judicial approval. But this Court "has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end." Katz, supra, at 356-357. The Fourth Amendment contemplates a prior judicial judgment, 18
not the risk that executive discretion may be reasonably exercised. This judicial role accords with our basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government. "
"But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech."
"In cases in which the Fourth Amendment requires that a warrant to search be obtained, `probable cause' is the standard by which a particular decision to search is tested against the constitutional mandate of reasonableness. . . . In determining whether a particular inspection is reasonable - and thus in determining whether there is probable cause to issue a warrant for that inspection - the need for the inspection must be weighed in terms of these reasonable goals of code enforcement."