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Reviving the Nixon Doctrine: NSA Spying, the Commander-in-Chief, and Executive Power in the War on Terror


David Cole


Georgetown University Law Center


Washington and Lee Journal of Civil Rights and Social Justice, Vol. 13, p. 1, 2006
Georgetown Public Law Research Paper No. 958748

Abstract:     
When the President does it, that means that it is not illegal. So Richard Nixon infamously defended his approval of a plan to engage in warrantless wiretapping of Americans involved in the antiwar movement in the 1970s. For thirty years Nixon's defense has stood as the apogee of presidential arrogance. But of course Nixon was proved wrong. The wiretapping plan was shelved when FBI Director J. Edgar Hoover, of all people, objected to it. Nixon's approval of the program was listed in the articles of impeachment, and ultimately he was forced to resign. Nixon learned the hard way that presidents are not above the law.

In defending the NSA spying program, at least until the recent about-face, as well as in its views on enemy combatants and torture, the Bush administration has essentially revived the Nixon doctrine. This essay argues that the Bush administration's defense of the NSA spying program (and of unchecked presidential authority over enemy combatants and interrogation techniques) is fundamentally flawed, both as a matter of law and as a matter of national security policy. The argument that Congress authorized the program defies the most basic principles of statutory construction. The claim that the Commander in Chief has uncheckable authority with respect to "the means and methods of engaging the enemy" is contrary to the text of the Constitution, the structure of checks and balances, and a long line of Supreme Court precedent. And no Fourth Amendment precedent supports the notion that the president may wiretap Americans without probable cause or a warrant.

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Date posted: January 23, 2007  

Suggested Citation

Cole, David, Reviving the Nixon Doctrine: NSA Spying, the Commander-in-Chief, and Executive Power in the War on Terror. Washington and Lee Journal of Civil Rights and Social Justice, Vol. 13, p. 1, 2006; Georgetown Public Law Research Paper No. 958748. Available at SSRN: http://ssrn.com/abstract=958748

Contact Information

David D. Cole (Contact Author)
Georgetown University Law Center ( email )
600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9078 (Phone)
202-662-9408 (Fax)
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