NSA surveillance, FISA, and Article II — another look

Orin Kerr at the Volokh Conspiracy responds to the Wall Street Journal column by Robert F. Turner regarding the legality of the NSA intercept program. Kerr believes, as I do, that the question of whether the program violates FISA is a difficult one, and that the answer depends on details about the program that we mostly don’t know. However, Kerr contends that if the intercept program does violate FISA, it cannot successfully be defended on the theory that FISA is an unconstitutional usurpation of the president’s inherent authority under Article II. According to Kerr, the question isn’t even close. John, on the other hand, has argued that if FISA bars the NSA program, FISA is plainly unconstitutional.

By contrast, I continue to regard the constitutional question as an open one. Like Kerr, I have argued that just because the president has the authority to order the NSA intercepts in the absence of a statute prohibiting this action does not mean he has the authority to do so in the face of a congressional prohibition. But that’s not to say that he lacks the authority under these circumstances; it just means that additional analysis is required.

Kerr doesn’t appear to dispute that Congress would act unconstitutionally if it ordered the president not to attack an enemy stronghold for more than 15 days. On the other hand, the Supreme Court held that the president’s inherent authority didn’t extend to seizing steel mills to avoid a wartime stoppage of much-needed steel production. The NSA intercept program seems to fall somewhere between these situations — it’s not a direct war command decision with no domestic implications, nor is it a decision that bears on warfare only indirectly and has wide-ranging domestic implications. Rather, it appears to be a decision directly related to conducting war that has not insubstantial spillover domestic implications (how substantial those implications are depends, again, on details we don’t know). As such, I can’t say that either side would have a slam dunk case if it turned out that the intercept program violates FISA.

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