Let us suppose a hypothetical piece of legislation contains a provision wherein it provides immunity to federal agents engaged in illegal surveillance, as long as the surveillance is on the orders of high executive officials. I’m fairly sure this is unconstitutional, but I can’t figure out exactly why. As far as I can tell, judicial approval of covert surveillance is not explicitly mentioned in the Constitution.
There is a general principle of qualified immunity for law enforcement officers when they engage in actions in the performance of their duties. This exists because of the public good – if law enforcement officers were worried that their ordinary duties would explose them to civil liability, this would have a chilling effect on the performance of those duties.
Having said that, I’m at a loss to understand exactly what you’re asking. As far as I can tell, you’re suggesting that a federal law that provided either absolute or qualified immunity to federal officials under certain circumstances would be unconstitutional, although you readily concede you have no idea why it would be.
Nor do I. The Constitution doesn’t guarantee a civil cause of action against a law enforcement officer, even if he flouts Constitutional guarantees. The usual remedy for such transgressions is the exclusion of evidence obtained improperly.
Nor is the “principle” a creature of case law. There is no federal common law.
Now, you knew that one wasn’t going to sneak by, didn’t you? There is a limited federal common law relating to federal questions. For example the doctrine of patent infringement by equivalents is a creation of common law without a specific statutory justification. In addition, there is a federal common law that obtains in the District of Columbia and on federal land such as national parks.
Getting back to the question of the OP, which was a bit inartfully posed, I think that he’s referring to the principle that a federal (or state) officer can be personally liable for obeying orders to do some patently illegal acts. (For example, a policeman can’t plead that he was just obeying orders when he kicked an unarmed prisoner in the head). Offhand, I can’t think of an application of this principle to surveillance, though, and I’m not sure whether it stems from federal or state law, either.
If the surveillance is illegal, it is illegal. Period. Just because it is on the order of high executive officials does not make it legal. Those high executive officials can only make a lawful order to be carried out by those lower in the food chain.
Of course, this would not stop thise of those high executive officials from issuing the order, and those in the food chain can legally refuse to carry it out.
Bricker and ENugent, thank you. I suppose what I’m really asking is whether there is a constitutional right not to be spied upon without a court order, which presumably would derive from the right to privacy which itself derives from the Fourth Amendment.
Duckster- the point is not whether or not the surveillance is illegal, but whether a law providing for surveillance without judicial approval is constitutional.
I probably should have noted in the OP that the real issue is what would (or should, rather) happen if this were brought before the SCOTUS.
I’m not exactly sure what you’re saying here.
First of all, what kind of surveillance are we talking about? Wiretapping?
What do you mean “spied upon”? If your just talking a surveillance set up…being watched where you go, who you associate with, etc., that’s not illegal for anyone to do.
Very true. I should have been much more clear: there is no general federal common law that applies to and supercedes the states’ common law by virtue of the Supremacy Clause. That was highly sloppy of me, and in GQ to boot.
If a law is passed that says, in effect, “Houses may be searched at will, and papers and effects seized, without any warrant or probable cause, but based solely on the discretion of any law enforcement officer” then I’d say that such a law is unconstitutional. Were it applied, it would directly contradict the Fourth Amendment’s guarantees.
On the other hand, there are a number of exceptions to the warrant requirement, based on a combination of statutory and case law. For example, exigent circumstances permit the police to search without a warrant. The consent of the person to be searched eliminates the warrant requirement. Neither of these exceptions appear in the Constitution; both are solidly in place in our jurisprudence.
So a law that permits surveillance without a warrant might well be unconstitutional, or it might be perfectly constitutional; it depends on the specifics.