The Constitutional Infirmity of Warrantless NSA Surveillance: The Abuse of Presidential Power and the Injury to the Fourth Amendment

57 Pages Posted: 29 Aug 2006  

Robert M. Bloom

Boston College Law School

William J. Dunn

Boston College Law School

Abstract

In recent months, there have been many revelations about the tactics used by the Bush Administration to prosecute their war on terrorism. These stories involve the exploitation of technologies that allow the government, with the cooperation of phone companies and financial institutions, to access phone and financial records. This paper focuses on the revelation and widespread criticism of the Bush Administration's operation of a warrantless electronic surveillance program to monitor international phone calls and emails that originate or terminate with a United States party. The powerful and secret National Security Agency heads the program and leverages its significant intelligence collection infrastructure to further this effort. Fueling the controversy are undeniable similarities between the current surveillance program and the improper use of electronic surveillance that was listed as an article of impeachment for former President Richard M. Nixon. President Bush argues that the surveillance program passes constitutional inquiry based upon his constitutionally delegated war and foreign policy powers, as well as from the congressional joint resolution passed following the September 11, 2001 terrorist attacks. These arguments fail to supersede the explicit and exhaustive statutory framework provided by Congress and amended repeatedly since 2001 for judicial approval and authorization of electronic surveillance. The specific regulation by Congress based upon war powers shared concurrently with the President provides a constitutional requirement that cannot be bypassed or ignored by the President. The President's choice to do so violates the Constitution and risks the definite sacrifice of individual rights for the speculative gain from warrantless action.

Keywords: Bush administration, terrorism, warrantless electronic surveillance, National Security Agency, NSA

Suggested Citation

Bloom, Robert M. and Dunn, William J., The Constitutional Infirmity of Warrantless NSA Surveillance: The Abuse of Presidential Power and the Injury to the Fourth Amendment. William & Mary Bill of Rights Journal, Vol. 15, pp. 147-202, 2006; Boston College Law School Research Paper No. 105. Available at SSRN: https://ssrn.com/abstract=926997

Robert M. Bloom (Contact Author)

Boston College Law School ( email )

885 Centre Street
Newton, MA 02459-1163
United States

William J. Dunn

Boston College Law School ( email )

885 Centre Street
Newton, MA 02459-1163
United States

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