Warrantless Wiretaps - Legal?

The ends justify the means. My Mother used to say that was the difference between Americans and the USSR. We don't (didn't?) subscribe to that theory. Admittedly the Fourth Amendment is malleable, and subject to a balancing test, but this whole matter reminds me of Brennan's dissent in BROWN v. GLINES, 444 U.S. 348 (1980)

Military (or national) security is a weighty interest, not least of all because national survival is an indispensable condition of national liberties. See United States v. Robel, 389 U.S. 258, 264 (1967). But the concept of military necessity is seductively broad, and has a dangerous plasticity. Because they invariably have the visage of overriding importance, there is always a temptation to invoke security "necessities" to justify an encroachment upon civil liberties. For that reason, the military-security argument must be approached with a healthy skepticism: its very gravity counsels that courts be cautious when military necessity is invoked by the Government to justify a trespass on First Amendment rights.

Such skepticism lay at the heart of our decision in New York Times Co. v. United States. There, the Government urged that publication of the so-called Pentagon Papers would damage the Nation's security during a period of armed conflict. We rejected that assertion. 403 U.S., at 714 . Separate opinions scrutinized the security argument, and declined to rely merely upon the Government's characterization of the interest at stake. Id., at 719-720 (Black, J.); id., at 722-724 (Douglas, J.); id., at 726-727 (BRENNAN, J.); id., at 730 (STEWART, J.); id., at 731, 733 (WHITE, J.). Similarly, United States v. Robel, supra, at 263-264, spurned simple deference to "talismanic incantation[s]" of "`war power.'" Analogously, we have stringently viewed the national-security argument when it has been proffered to support domestic warrantless surveillance. United States v. United States District Court, 407 U.S. 297, 320 (1972). [444 U.S. 348, 370]

To be sure, generals and admirals, not federal judges, are expert about military needs. But it is equally true that judges, not military officers, possess the competence and authority to interpret and apply the First Amendment. Moreover, in the context of this case, the expertise of military officials is, to a great degree, tainted by the natural self-interest that inevitably influences their exercise of the power to control expression. Partiality must be expected when government authorities censor the views of subordinates, especially if those views are critical of the censors. Larger, but vaguely defined, interests in discipline or military efficiency may all too easily become identified with officials' personal or bureaucratic preferences. This Court abdicates its responsibility to safeguard free expression when it reflexively bows before the shibboleth of military necessity. Cf. Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 842 -845 (1978).

A properly detached - rather than unduly acquiescent - approach to the military-necessity argument here would doubtless have led the Court to a different result. The military's omission to regulate the content of oral communication suggests the pointlessness of controlling the identical message when embodied in a petition. It is further troubling that these regulations apply to all military bases, not merely to those that operate under combat or near-combat conditions. The "front line" and the rear echelon may be difficult to identify in the conditions of modern warfare, but there is a difference between an encampment that faces imminent conflict and a military installation that provides staging, support, or training services. It is simply impossible to credit the contention that national security is significantly promoted by the control of petitioning throughout all installations.

Finally, and fundamentally, the Court has been deluded into unquestioning acceptance of the very flawed assumption that discipline and morale are enhanced by restricting peaceful communication of various viewpoints. Properly regulated as [444 U.S. 348, 371] to time, place, and manner, petitioning provides a useful outlet for airing complaints and opinions that are held as strongly by citizens in uniform as by the rest of society. The forced absence of peaceful expression only creates the illusion of good order; underlying dissension remains to flow into the more dangerous channels of incitement and disobedience. In that sense, military efficiency is only disserved when First Amendment rights are devalued. etc........