The Constitutionality of Warrantless Electronic Surveillance of Suspected Foreign Threats to the National Security of the United States

Abstract:     
In the fall of 2001, shortly after the terrorist attacks of September 11, the National Security Agency launched a secret program to engage in electronic surveillance, without prior judicial authorization, of communications between persons in other countries and persons inside the United States (the Terrorist Surveillance Program or TSP). Despite the clear language of the Foreign Intelligence Surveillance Act (FISA) and of Title 18 of the United States Code that no electronic surveillance was permitted other than that authorized by statute, the President claimed inherent power to conduct such surveillance. And despite the clear intent of Congress that the President should seek an amendment to FISA to authorize extraordinary surveillance lasting more than fifteen days during wartime, the President did not seek such an amendment and instead continued to act unilaterally and in secret. President Bush secretly reauthorized the TSP multiple times and originally intended to continue doing so indefinitely.

This surveillance raised serious constitutional questions concerning the separation of powers and the scope of protection provided by the warrant requirement of the Fourth Amendment. The article begins with a history of the Bush administration's warrantless electronic surveillance after September 11, 2001. It then lays out the statutory framework that existed under FISA. It discusses the principal arguments concerning the question whether the President had inherent power to conduct warrantless electronic surveillance of suspected foreign threats to national security. The article concludes that in the face of Congress's clear decision that such surveillance required a judicial warrant, the President had no inherent authority to engage in surveillance without a warrant. The article rejects the government's argument that the Authorization for the Use of Military Force (AUMF), issued by Congress following September 11, impliedly authorized the TSP.

The government raised the state-secrets privilege during litigation over the TSP and argued that all suits challenging the practice should be dismissed. This article concludes that the courts should determine the constitutionality of the TSP by reference to first principles and that state secrets are not essential to that inquiry.

The article then discusses the change in the Bush administration's strategy in January 2007 when it sought and obtained orders from the Foreign Intelligence Surveillance Court authorizing electronic surveillance that had been conducted previously through the TSP. It argues that this change did not render moot the legal challenges pending to the TSP. Finally it addresses the question of the constitutionality of the amendments to FISA that were enacted in August 2007 and concludes that even as authorized by Congress, warrantless electronic surveillance violates the Fourth Amendment.

Accepted Paper Series