America’s founders hated general warrants. So why has the government resurrected them?

Laura Donohue is a professor of law at Georgetown University  and was recently appointed as a public advocate to the Foreign Intelligence Surveillance Court. She is also the author of a new book published by Oxford University Press, “The Future of Foreign Intelligence: Privacy and Surveillance in a Digital Age.” I asked her some questions about the argument of her book….

Henry Farrell : You see some similarities between recent surveillance practice and the kinds of ‘general warrants’ deplored by the U.S.A.’s founders. What are these similarities?

Laura Donohue: A general warrant is a document issued by the executive branch, or a court. It is not based on any prior evidence of wrongdoing. It lacks particularity regarding the person or place to be searched, or the papers or records to be seized. It is not supported by oath or affirmation. It is used to find evidence of wrongdoing.

For centuries prior to the U.S. founding, English jurists and legal scholars rejected general warrants as the worst exercise of tyrannical power. As Sir Edward Coke announced in parliament in 1628, ‘If [general warrants] be used per man datum domino regis, or for matter of state,’ then we are gone, and we are in a worse case than ever. If we agree . . . for matters of state. . . We shall leave Magna Carta and other statutes and make them fruitless, and do what our ancestors would never do.’ Sir Matthew Hale, William Hawkins, and others went on to condemn them, as did our founding generation. James Otis  Jr.’s famous oration in Paxton’s Case said that he would to his “dying day oppose all such instruments of slavery on the one hand, and villainy on the other” as writs of assistance (a particular form of general warrant). President John Adams, who had been present at Otis’s argument, later reflected, “Then and there the child Independence was born.” State after state went on to outlaw general warrants in their constitutions, before the Fourth Amendment prohibited it in the federal Constitution.

With this history in mind, one could, perhaps, be forgiven for being surprised to wake up on June 6, 2013, to find the Guardian reporting that the United States was collecting the phone records of millions of Americans. The order required Verizon to turn over  “all call detail records” of “telephony metadata” created by Verizon for communications (I) between the United States and abroad; or (ii) “wholly within the United States, including local telephone calls.”

Issued by FISC, the order did not name any individual suspected of wrongdoing. It did not specify a crime. There was no oath or affirmation. It did not indicate the particular place to be searched. Indeed, it did not appear to be tailored in any way whatsoever. It empowered the intelligence agencies and, as it turns out, federal law enforcement agencies, to obtain private papers, under a judicial writ. Anyone served with the order was required to comply. And rather than starting, at the outset, with information indicating that illegal behavior was underway, the orders were being used to find evidence of criminal activity. In short, it was a general warrant. ...