Listening to the Enemy: The President's Power to Conduct Surveillance of Enemy Communications During Time of War

19 Pages Posted: 23 Feb 2007

See all articles by John C. Eastman

John C. Eastman

Claremont Institute Center for Constitutional Jurisprudence


Ever since the New York Times published classified information in December 2005 about the efforts by the National Security Agency to intercept enemy communications to or from sources in the United States (as authorized by the President in his capacity as Commander-In-Chief), there has been a great hew and cry about the President's "illegal" conduct. Calls of impeachment have even been heard, both in the media and in the halls of Congress. The Congressional Research Serviced weighed in at the request of members of Congress, concluding that "it might be argued" that the President had violated the Foreign Intelligence Surveillance Act, a statute adopted by Congress in the late 1970s. In stark contrast, the President, backed by a lengthy legal analysis by the Department of Justice, defended both the legality and the necessity of the NSA surveillance program to the overall war against terrorism.

This article assesses those competing claims, analyzing the constitutional design and Supreme Court precedent along the way to concluding that the President has the stronger argument. It then contends that the New York Times violated the Espionage Act for publishing classified information about the program.

The current controversy over the President's surveillance program, like the controversies over the Boland Amendment in the 1980s, the War Powers Act in the 1970s, and countless other statutory efforts by Congress to limit the President's executive powers, force us to give serious consideration to the Founder's constitutional design.

Keywords: NSA Surveillance, New York Times, classified information, Youngstown, Curtis-Wright, President's War Powers, FISA

JEL Classification: H10, H11, H56, K33, K42

Suggested Citation

Eastman, John C., Listening to the Enemy: The President's Power to Conduct Surveillance of Enemy Communications During Time of War. ILSA Journal of International & Comparative Law, Vol. 13, No. 1, 2006, Chapman University Law Research Paper No. 2007-11, Available at SSRN:

John C. Eastman (Contact Author)

Claremont Institute Center for Constitutional Jurisprudence

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