The NSA Terrorist Surveillance Program

Abstract

Since the attacks of September 11, 2001, the War on Terror has been the impetus and justification for asserting expansive presidential powers. Under the auspices of the Authorization for Use of Military Force (AUMF) and Article II of the U.S. Constitution, the Bush administration has detained American citizens as enemy combatants at Guantanamo Bay, instituted military tribunals, and used extraordinary rendition to transfer detainees to countries that employ harsher interrogation techniques than the United States. In addition to those new programs, the administration also instituted a widespread, secret eavesdropping program (which the administration calls the "terrorist surveillance program"), under which the National Security Agency (NSA) intercepts communications between individuals on American soil and individuals abroad, without judicial approval. This recent revelation poses important questions about the desirability and legality of a perhaps unprecedented expansion in presidential power.

This article examines the NSA surveillance program. Part I discusses the Foreign Intelligence Surveillance Act (FISA) of 1978, which sets forth the legal framework for electronic surveillance in the United States pertaining to foreign intelligence. Part II presents the publicly known aspects of the terrorist surveillance program and the administration's arguments for the program's legality. Part III presents arguments from academics and government officials that the administration's program violates FISA and the U.S. Constitution. Finally, Part IV makes suggestions for reform and concludes that any changes should be made by Congress, not by presidential directive.

Keywords: wiretapping, NSA, FISA, presidential power, war on terror, AUMF, Bush administration, terrorism, warrantless electronic surveillance

JEL Classification: H56, H10, H11