The Constitutionality of the Nsa Surveillance Program: A Letter to the House Judiciary Committee
7 Pages Posted: 23 Aug 2006
Date Written: January 27, 2006
Following the December 2005 disclosure by the New York Times of a highly-classified National Security Agency surveillance program that was authorized by President Bush shortly after the September 11, 2001 terrorist attacks on the United States, there has been a great national debate, both scholarly and popular, about the legality of the program. Opponents claim that it violates the FISA statute's requirement that executive branch officials first obtain a warrant before conducting surveillance on enemy communications that originate or terminate in the United States itself. They also claim that, even if FISA statute was implicitly amended by the post-9/11 Authorization for the Use of Military Force (AUMF), the program violates the 4th Amendment's prohibition against unreasonable searches. Defenders of the program argue that the program was authorized by Congress's AUMF; that even if not, the FISA statute would be an unconstitutional intrusion on the powers the President has directly from Article II of the Constitution; and finally, that surveillance of enemy communications in time of war is perfectly reasonable and therefore consistent with the 4th Amendment.
The Congressional Research Service and the Department of Justice each prepared major legal analyses of the program. CRS found the program unconstitutional, while DOJ found that it was perfectly constitutional. This letter/article, prepared at the request of the U.S. House of Representatives Judiciary Committee, reviews the strength of the two arguments and concludes that the Department of Justice legal analysis is more more thorough and much better grounded in the Constitution's text, history, and underlying political theory, as well as better supported by existing precedent.
Keywords: NSA Surveillance, Fourth Amendment, Separation of powers, commander-in-chief, war powers
JEL Classification: H10, H11, H56
Suggested Citation: Suggested Citation