'The War of Information': The Foreign Intelligence Surveillance Act, Hamdan V. Rumsfeld, and the President's Warrantless Wiretapping Program

Abstract

In December 2005, uproar broke out over news that President George W. Bush had secretly authorized the National Security Agency to wiretap, without warrants, the international e-mails and telephone calls of people inside the United States. Lawmakers called for an inquiry into wrongdoing and demanded an explanation. Arlen Specter, a five-term senator representing President Bush's own Republican Party, called such warrantless wiretapping wrong, adding, "[I]t can't be condoned at all." Amid the scandal the day the story broke, the Senate temporarily blocked renewal of the USA PATRIOT Act, a law that was not directly related to the wiretapping in question but, in its post-9/11 expansion of law enforcement powers, had come to symbolize a similar tension between security and civil liberties. The American Civil Liberties Union, Al-Haramain Islamic Foundation, and Center for Constitutional Rights filed suits in federal court to block the activities. The ACLU suit led to an injunction against the program, stayed pending appeal. The Senate entertained a resolution to censure the President over his role in authorizing the program. President Bush was defiant in the face of criticism, addressing the nation in an unusually pointed radio broadcast with the argument that his actions were "consistent with U.S. law" and the Constitution and that it was the leak of information about the program that was improper, resulting in "our enemies learn[ing] information they should not have." Indeed, the administration fought back by opening up an investigation into the source of the leak. Attorney General Alberto Gonzales maintained that winning the war on terror requires winning the war of information.

The revelations brought political America to an emotional boiling point, but nearly lost in the ruckus was careful discussion of whether the wiretaps were unconstitutional, illegal, neither, or both. This Comment will address these issues through the lens of constitutional law in light of the Supreme Court's recent ruling in Hamdan v. Rumsfeld. Part I will investigate the known factual details of the warrantless wiretapping program. Part II will explore the threshold question of whether wiretapping is within the scope of the executive's Article II authority and conclude that, broadly speaking, it is. Part III will lay out the arguments whether, despite the President's having the constitutional power to wiretap, that power is nonetheless necessarily forestalled in this case because it runs afoul of the Fourth Amendment rights of the surveilled. With constitutional issues set aside, Part IV will apply statutory law to the program and find it illegal and, directly contradicting administration contentions, lacking statutory authority under either the Foreign Intelligence Surveillance Act or the Authorization for Use of Military Force against terrorists to override its general illegality. Part V will return to the Article II analysis to controvert the assertion that the President's constitutional authority supersedes the statutory prohibition. The Comment will conclude by addressing the intelligence options with which the government is left in the absence of the NSA eavesdropping program.

Keywords: surveillance, wiretap, NSA, FISA, Constitution, executive, Congree, president, AUMF