University of Miami National Security & Armed Conflict Law Review


Sarah Fowler

Document Type



Though few are even aware of its existence, the foreign intelligence exception to the Fourth Amendment’s warrant requirement affects the lives of nearly every American. Recent leaks of top-­‐secret National Security Administration documents depict how the government has morphed the exception into a massive catch all that allows intelligence agencies to perform invasive searches without a warrant and in complete disregard of the Constitution. The foreign intelligence exception began as a narrow tool to shield sensitive national security investigations, but its application has reached an alarming breadth.

This note explores the creation and expansion of the foreign intelligence exception, tracing its history from George Washington’s secret surveillance efforts during the Revolutionary War to the modern framework for warrantless intelligence surveillance created by the Patriot Act. The Supreme Court has long recognized the necessity of exceptions to the Fourth Amendment’s ordinarily strict warrant and probable cause requirements. However, this history illustrates the foreign intelligence exception’s glaring disregard for the protections afforded to all Americans by the Fourth Amendment.