I’m eagerly awaiting John’s analysis of the legality of the NSA’s intercept program. For what it’s worth, my sense has been that the statutory and constitutional issues are unsettled and perhaps close. Orin Kerr at the Volokh Conspiracy has done a preliminary analysis which suggests that this is the case.
It doesn’t appear that the members of Congress who were advised about the warrantless searches thought it self-evident that the searches violated FISA or the Constitution. Thus far, I don’t believe any such member has claimed that he or she told the president he was violating the law. (To be sure, a few have claimed, unpersuasively, that they didn’t understand that Bush had authorized warrantless wiretaps, and others have said they expressed general “concerns”).
I don’t have the expertise to draw any firm legal conclusions on the legality of the NSA program without doing far more homework than I’ve performed thus far. But it’s clear to me what the proper policy result is. If, understanding the threat he poses to the homeland and its inhabitants, we learn that Osama bin Laden has recently called certain phone numbers in the U.S., our government should be able immediately to tap the phones of those with whom the master terrorist has been in communication. It should not be required to (a) figure out whether that person is a U.S. citizen or legal permanent resident which is the threshold determination under FISA) and (b) endure the delay of proceeding in court. A contrary result would tend to make the Constitution a suicide pact. And, since the Fourth Amendment speaks of “unreasonable” searches and seizures, it’s hard to understand how it would prohibit warrantless searches in the kind of situation I just described.