Surveillance and the Constitution

The Federalist Society has published a series of outstanding white papers by prominent attorneys addressing legal issues related to the war. It has now published perhaps the most important paper in this series, by Andrew McCarthy, David Rivkin and Lee Casey: “Terrorist surveillance and the Constitution.” It is more than 100 pages long and exhaustively researched. The Foreword explains:

The Federalist Society for Law and Public Policy is pleased to make a contribution to the current debate about the scope of the President’s powers in wartime by publishing this monograph on the legal and constitutional issues implicated by NSA’s global al Qaeda surveillance program. Although this surveillance program is important in its own right, the ongoing dialogue about its proper legal and policy parameters has become a surrogate for a broader discourse about the wartime constitutional balance among the Executive, Congress and the Judiciary. This issue has stimulated a heated debate, with the bulk of the academy and the media arguing that the President’s actions violated both the 1978 Foreign Intelligence Surveillance Act and the Constitution. This viewpoint was vigorously presented in an ABA Resolution, dated February 13, 2006 and in the Letter of Scholars to Congress dated January 9, 2006. Both of these products have been extensively referenced in congressional hearings on the subject, which commenced several weeks ago and are still ongoing.

By contrast, the accompanying study by Andrew C. McCarthy, David B. Rivkin, Jr., and Lee A. Casey posits that the NSA’s al Qaeda surrveillance program does not run afoul of FISA and is fully within the ambit of the President’s authority as the Commander-and-Chief and the Chief Executive. The authors further maintain that any congressional efforts to micromanage or regulate further the President’s gathering of foreign and military intelligence unduly trenches upon his core constitutional responsibilities. They also argue that any efforts to have the judiciary review what are essentially discretionary Executive Branch policy determinations would consign the Judiciary to a role that is fundamentally incompatible with its Article III authority and is therefore also unconstitutional.

I commend this important work to your attention.


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