NSA surveillance — the state of the legal debate

I’m still trying to reach firm conclusions on the legal issues surrounding President Bush’s decision to have the NSA conduct, without court approval, electronic surveillance of communications between foreign terrorists and Americans (who might also be terrorists). I’ve reached the firm conclusion that the Fourth Amendment does not blanketly prohibit search searches. As John has noted, the Fourth Amendment prohibits unreasonable searches, which is not the same thing as searches without warrants. There are clear exceptions to the search requirement. For example, as Bill Otis notes, “exigent circumstances” will justify searching without a warrant in ordinary criminal investigations. So it can certainly justify such searches, under certain factual circumstances, when it comes to figuring out how al Qaeda plans to attack this country.

It also seems clear that the president has the inherent authority to authorize warrantless searches where necessary to protect this country from foreign enemies. This appears to have been the holding of every court of appeals that has considered the question. I haven’t seen any contrary authority.

The statutory issues under FISA seem less clear. The first set of issues arises from the terms of the statute, which take us into a thicket of definitions, in particular the definition of “electronic surveillance” (for purpose of determining what is covered) and of “foreign power” (for purposes of determining the scope of the statutory exceptions). There is room for argument here, particularly since I don’t think we know all of the relevant details of how the NSA surveillance worked. However, my reading of the statute tends to support the view that, by its terms, FISA makes the searches in question problematic.

But there are two additional arguments to be considered. First, the administration relies on another exception under FISA — the one for surveillance authorized by statute. It contends that Congress’s grant to the president of the power to use all necessary and appropriate force against al Qaeda and company in order to prevent another attack constitutes such authorization. I’m not yet sure whether I agree with this argument, but it is a colorable one. In fact, liberal law professor Cass Sunstein finds it “entirely plausible.”

Finally, we get to the question of whether, assuming that FISA outlaws warrantless electronic surveillance of Americans performed to prevent foreign attack, Congress can lawfully do so given the president’s inherent power to authorize such surveillance. On the one hand, it seems that Congress cannot strip the president of his inherent power. On the other hand, as George Conway has noted, the argument seems to prove too much because it potentially could strip Congress of its power under Article I, Section 8 to make “all laws necessary and proper for carrying into Execution [its] Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Ideally, we could avoid that train wreck by interpreting FISA as not denying the president the power to authorize the wiretaps at issue. But, as I suggested, arguably there are difficulties with such an interpretation.

As far as I can tell, then, there are some close and complex issues here, contrary to the impression the MSM has tried to create. And, as usual, most of the best analysis is taking place in the blogosphere. That, at least, is where I’ll keep looking as I test the conclusions I’ve reached so far and continue to struggle with the remaining issues.

UPDATE: Mark Levin rejects the argument that the “necessary and proper” clause can be read to limit the president’s inherent authority to collect intelligence regarding foreign enemies.


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